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Texas Supreme Court-Amended Motion for Rehearing on Denied Writ

Texas Supreme Court-Amended Motion for Rehearing on Denied Writ

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Published by mortgageabuse6970
Texas Supreme Court and Court of Appeals deny access to an indigent party.
Texas Supreme Court and Court of Appeals deny access to an indigent party.

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Published by: mortgageabuse6970 on Apr 10, 2010
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10/23/2012

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No.
09-1013
 
_________________________________In the
Supreme Court of Texas
__________________________________In Re
R
OBERT
J
OHN
W
RIGHT============================================================
A
MENDED
 M
OTION FOR
R
EHEARING and
E
N
B
ANC
R
ECONSIDERATION in
I
NSTANTER
=====================================================================TO THE HONORABLE SUPREME COURT OF TEXAS:Relator ROBERT JOHN WRIGHT, per
T.R.A.P
. 49.6, amends his Motion for Rehearingand En Banc Reconsideration on a denied Writ of Mandamus and states the following:Relator asserts that the Respondent court(s) have committed grave errors of judgment thatare of such importance to the public interest of this state, it should compel correction. To wit:Relator is being consistently denied his right to due process and an appeal because he is indigent;Respondent trial court patently rejected the Texas Property Code’s century-old mandate thatdemands an eviction suit be filed in a JP court where the property is located - prior
 
to an eviction.Relator believes his only remedy lies in this Court’s granting of his Writ of Mandamus.This disturbing
1
case, is beguiling in its simplicity and presents two simple questions:
# 1. May the Court of Appeals dismiss an appeal before it is due?# 2. _Does a party’s indigence provide an equitable and legal basis for denying an appeal?
1
The Texas Supreme Court’s authorized process server was so shocked by the contents of Relator’s trial courtpetition that he elected to serve the summons at no cost.
 
 2BACKGROUNDRelator was evicted from his lawfully-owned home as part of a mortgage fraud/ foreclosure/transference of wealth/concealment of fraud scheme. The unrestrained lawlessnessof the scheme has reached crisis proportions across the country. The eviction; the final processto consummate the scam, was simply executed without the written legal authority of a JP courtlocated in the county where the property is located as mandated by law. (Tex. Prop. Code § 24.)That single act denied Relator’s constitutional right to protect his property from unlawful seizure.MAY THE COURT OF APPEALS DISMISS AN APPEAL BEFORE IT IS DUE?1.
 
Relator’s appeal was due on September 28, 2009. On September 20, 2009, whileperfecting the timely filing of his docketing statement, affidavit of indigence (“Affidavit”) andrequest for the trial court record, Relator received a Memorandum Opinion stating the appeal hadalready been dismissed on September 16, 2009; 12 days before the appeal, docketing statement,affidavit and request for the record were due to be filed. The 9/16/09 Opinion stated:By letter dated
August 11
, 2009, the Court directed appellant to pay the $175 filing feefor the appeal within 10 days. The letter further warned that failure to pay the feewould result in dismissal of the appeal without further notice. To date appellant hasneither paid the filing fee nor otherwise communicated with the Court regarding theappeal. Accordingly, we dismiss the appeal.
See
TEX. R. App. P. 42.3(c).2.
 
The Respondent court’s docket (
Apx. 9
of the writ) contains no entry of a “letter”sent on August 11 or any other date. Relator did not receive a letter, court order, or notice fromthe clerk under
TRAP
42.3(c) or 32.1 prior to the dismissal. “A court should be particularlycareful to ensure proper notice to a pro se litigant.”
 Herron v. Beck 
, 693 F.2d at 127.3.
 
The Respondent appellate docket does contain a September 8, 2009, 32.1NOTICE, entered 20 days before the docketing statement was due.
 
 34.
 
In arguendo and assuming that a docket entry is constructive notice that complieswith the notice delivery requirements under Rules 42.3 and 32.1 giving “ten days notice to allparties”, that would still have allowed Relator until September 18 to comply with any allegeddefects – but the appeal had already been dismissed two days earlier on September 16.5.
 
If the dismissal was due to a procedural error, the docket itself confirms it was acourt error, and therefore the Respondent appellate court’s dismissal should be vacated.
Texas Rules of Appellate Procedure
41.1(a)(1) states:[“the court may dismiss the appeal or affirm the appealed judgment or order unless
 
suchdisposition would prevent a party from seeking relief to which it would otherwise beentitled”.]6.
 
Should it be determined that Relator caused the error, then proper procedurerequires that the party be notified of the error and given an opportunity to correct the error.“Court errs if court dismisses pro se litigant without instructions of how pleadings are deficientand how to repair pleadings.”
Plaskey v CIA
, 953 F .2
nd
25. “The trial judge should inform a prose litigant of the proper procedure for the action he or she is obviously attempting toaccomplish.” (
emphasis added 
)
 Breck v. Ulmer 
, 745 P.2d 66, 75 (1987).7.
 
Relator only became aware of the reason for dismissal upon receipt of Respondent’s Memorandum Opinion, which came prior to his application to proceed at no cost.
No Notice, No Review, No Ruling + No Appeal = No Equal Protection or Due Process.
8.
 
Denial of equal protection of the laws and denial of due process was clearly theproduct of bias and prejudice of the Court. See
Griffen v. Breckenridge
, 403 U.S. 88, 102 (1971).9.
 
In the instant case, the trial court reporter and court clerk did
not
contest Relator’saffidavit. At best, Real Parties informally contested the affidavit by letter, but no contest was

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