No.

09-1013 _________________________________ In the

Supreme Court of Texas
__________________________________ In Re

ROBERT JOHN WRIGHT

============================================================ AMENDED

MOTION FOR REHEARING and EN BANC RECONSIDERATION in INSTANTER
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TO THE HONORABLE SUPREME COURT OF TEXAS: Relator ROBERT JOHN WRIGHT, per T.R.A.P. 49.6, amends his Motion for Rehearing and 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 that are 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 that demands 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 disturbing1 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?

The Texas Supreme Court’s authorized process server was so shocked by the contents of Relator’s trial court petition that he elected to serve the summons at no cost.

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BACKGROUND Relator was evicted from his lawfully-owned home as part of a mortgage fraud/ foreclosure/transference of wealth/concealment of fraud scheme. The unrestrained lawlessness of the scheme has reached crisis proportions across the country. The eviction; the final process to consummate the scam, was simply executed without the written legal authority of a JP court located 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, while

perfecting the timely filing of his docketing statement, affidavit of indigence (“Affidavit”) and request for the trial court record, Relator received a Memorandum Opinion stating the appeal had already 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 fee for the appeal within 10 days. The letter further warned that failure to pay the fee would result in dismissal of the appeal without further notice. To date appellant has neither paid the filing fee nor otherwise communicated with the Court regarding the appeal. 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 from the clerk under TRAP 42.3(c) or 32.1 prior to the dismissal. “A court should be particularly careful 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, 32.1

NOTICE, entered 20 days before the docketing statement was due.

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4.

In arguendo and assuming that a docket entry is constructive notice that complies

with the notice delivery requirements under Rules 42.3 and 32.1 giving “ten days notice to all parties”, that would still have allowed Relator until September 18 to comply with any alleged defects – 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 a

court 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 such disposition would prevent a party from seeking relief to which it would otherwise be entitled”.] 6. Should it be determined that Relator caused the error, then proper procedure

requires 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 deficient and how to repair pleadings.” Plaskey v CIA, 953 F .2nd 25. “The trial judge should inform a pro se litigant of the proper procedure for the action he or she is obviously attempting to accomplish.” (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 the

product 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’s

affidavit. At best, Real Parties informally contested the affidavit by letter, but no contest was

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held, and the affidavit received no administrative or judicial ruling. Instead, the Respondent appellate court dismissed the appeal 12 days before it was due by citing Relator’s failure to pay fees, and without first ruling on Relator’s affidavit. (See Writ’s Apx. 9) 10. Moreover, after the trial court evidence converted Relator’s allegations to facts,

Relator filed a Motion for Declaratory Judgment, and due to the cost, asked the Respondent trial court to rule on the pleading without a hearing. Relator’s motion was ignored and no ruling on the motion was rendered. Respondent trial court did rule however, on Real Parties’ Motions for Summary Judgment, without first, reviewing Relator’s Reply brief submitted, docketed and presented to the bench just prior to the hearing. Relator’s request(s) for “a controlling law that would allow this Court to rule the eviction was lawful.”… were ignored. (Hearing transcript and reply brief) “The court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory.” Bonner v. Circuit Court of St. Louis, 526 F.2d 1331, 1334 (8th Cir. 1975), quoting Bramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1971). 11. The hearing also dismissed Real Party Todd and imposed sanctions against

Relator mere minutes after the court irrefutably heard the false testimony given by Todd’s counsel. (hearing transcript and See Writ ¶1, ¶¶5)

DOES A PARTY’S INDIGENCE PROVIDE AN EQUITABLE AND LEGAL BASIS FOR DENYING AN APPEAL? 12. “Pro Se parties have the right to Appeal, and submit their briefs on appeal even

though they may be inartfully drawn”, Vega v. Johnson, 149 F.3d 354 (5th Cir. 1998). Also, “Courts will go to particular pains to protect pro se litigants consequences of technical errors if injustice would otherwise result.” (emphasis) U. S. v. Sanchez, 88 F.3d 1243 (D.C. Cir. 1996).

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THIS COURT’S POSITION ON THE RIGHTS OF INDIGENTS IS CLEAR. 13. This Court has embraced [t]he concept that courts should be open to all, including

those who cannot afford the costs of admission, is firmly embedded in Texas jurisprudence. See, e.g., TEX. CONST. art. I, § 13; Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 353 (Tex. 1996); Pinchback v. Hockless, 164 S.W.2d 19, 19–20 (Tex. 1942); also Goffney v. Lowry, 554 S.W.2d 157, 159 (Tex. 1977); Pendley v. Berry, 65 S.W. 32, 33 (Tex. 1901). 14. This Court is also aware that [t]he option of submitting an affidavit of indigence

in lieu of a filing fee has been available in civil appeals for more than a century, first by statute and now by rule. See Act of May 3, 1871, 12th Leg., R.S., ch. 71, §§ 1–2, 1871 Tex. Gen. Laws 74, amended by Act of Apr. 14, 1879, 16th Leg., R.S., ch. 81, § 1, art. 1401, 1879 Tex. Gen. Laws 90, amended by Act of May 18, 1931, 42d Leg., R.S., ch. 134, § 1, 1931 Tex. Gen. Laws 226, repealed by Act of May 15, 1939, 46th Leg., ch. 25, § 1, 1939 Tex. Gen. Laws 06-0917 201 (current version at TEX. R. APP. P. 20.1); see also Pendley, 65 S.W. at 32–33. 15. And [t]hroughout this time, the fundamental requirement for asserting indigence

has remained the same: the applicant must declare to the court, by affidavit, an inability to pay any, or the ability to pay only some, of the costs of appeal. TEX. R. APP. P. 20.1(a)(1), (b), (k); Pendley, 65 S.W. at 32–33. 16. The aforementioned was taken from the Texas Supreme Court Opinion in Higgins

v. Randall County Sheriff’s Office, 193 S.W.3d 898, 899–900 (Tex. 2006) (“Higgins I”). 17. Higgins, a pro se inmate, timely appealed the trial court’s dismissal of his civil

suit for want of prosecution but failed to either pay the filing fee or file an affidavit of indigence. When the court of appeals requested payment of the filing fee within ten days, Higgins filed an affidavit of indigence. Because Higgins failed to file the affidavit with his appeal as Texas Rule

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of Appellate Procedure 20.1(c)(1) provides, and because the affidavit failed to fully comply with Rule 20.1(b), the court dismissed Higgins’s appeal, just as Respondent did in this instant case. 18. This Court reversed – “holding that an appeal may not be dismissed for a formal

procedural defect unless the party is provided a reasonable opportunity to correct the defect.” See Higgins v. Randall County Sheriff’s Office, 193 S.W.3d 898, 899–900 (Tex. 2006) (“Higgins I”). 19. This Court stated that its Higgins decision... “reflects[s] the policy embodied in

our appellate rules that disfavors disposing of appeals based upon harmless procedural defects.” Id. at 616; see Jones, 747 S.W.2d at 370. We have steadfastly adhered to this policy in refusing to require strict conformance with other formal aspects of Rule 20.1, including the requirement that an affidavit of indigence be filed “with or before the notice of appeal.” See, e.g., Sprowl v. Payne, 236 S.W.3d 786, 787 (Tex. 2007); Springer v. Springer, 240 S.W.3d 871, 872 (Tex. 2007); Hood v. Wal-Mart Stores, Inc., 216 S.W.3d 829, 830 (Tex. 2007); Higgins I, 193 S.W.3d at 899–900. 20. This Court’s view on the rights of indigents was also memorialized in the opinion:

In re Sosa2. Sosa filed a writ of mandamus to compel the court to set aside an order sustaining a contest to an affidavit of indigence. The court of appeals granted the writ, stating: “[B]ecause we are bound by the supreme court’s decision to favor the rights of indigents on appeal, we must conditionally grant the writ”. (Id. with emphasis) It is unambiguous that Relator’s courts have repeatedly rejected this Supreme Court’s holding that favors the rights of indigents. 21. In Sosa, the appellant was receiving social security benefits; had family members

who provided her with financial assistance, and an attorney who agreed not to charge her a fee for the appeal. (Id.)

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In re Sosa (980 SW 2d 814 - Tex: Court of Appeals, San Antonio 1998980 S.W.2d 814 (1998).

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22.

In stark contrast to Sosa, Relator is not receiving social security benefits; does not

have family providing financial assistance, and does not have an attorney - for reasons expressed in Relator’s writ. (Please review the Writ in its entirety) 23. However, after conforming to the strict guidelines, Relator does receive

government entitlements in the form of food stamps, and provided a copy of this incontrovertible government entitlement and the government-issued card with his affidavit to the Respondent court and to this Court. (See exhibit attached to Apx. 11 of Relator’s Writ.) Had a contest to the affidavit been heard, Real Parties’ argument would be limited “only with respect to the veracity of the government entitlement evidence”. (Id. TRCP 145(d)) Regarding other assets, Relator’s only remaining assets were intentionally damaged, destroyed, stolen or discarded by the unlawful and illegal acts of the Real Parties as set forth in Relator’s original petition. (See Writ - Apx. 1) 24. Furthermore, the Respondent trial court indicated bias and prejudice when it

stated: “I am holding you (Relator) to the highest standards of an attorney”. (hearing transcript) “Pro Se Litigants pleadings are to be construed liberally and held to less stringent standards than lawyers.” Haines v Kerner, 404 US 519 (1972)." ... “the right to file a lawsuit pro se is one of the most important rights under the constitution and laws." Elmore v. McCammon (1986) 640 F. Supp. 905. Relator avers he has been denied those “most important rights”. 25. To reiterate; no hearing was held to contest the affidavit, and no administrative or

judicial determination was made. Relator’s appeal was instead – wrongfully dismissed. CONCLUSION 26. Relator has no other remedy at law or in equity to recover the severity of his

damages. His only hope of restitution requires a complete record so he may exercise his right to appeal (at no cost) the lower courts’ error(s) in judgment, which are clearly - manifestly unjust.

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PRAYER Relator believes he has satisfied his burden of proof, including the requirements that must be met in order to be granted mandamus relief. Relator adds this case has far too many inconsistencies and suspect circumstances pointing to denials of due process that preclude Respondents’ judgments and dismissal of the appeal… and presents a final question: Would the appeal have been dismissed if Relator had been able to pay the fees? Relator’s request for an en banc reconsideration of his Writ of Mandamus is critical to the equitable and proper administration of law and would allow the relief to which Relator would otherwise be entitled. Relator requests that an Opinion and Order issue to vacate Respondent’s dismissal under TRAP 61.1 (a) and (b) and that Relator be granted the relief requested for in his writ and any other relief this Court deem just and proper. Respectfully submitted, /s/: Robert John Wright_____ Robert John Wright - Relator – pro se in forma pauperis VERIFICATION BEFORE ME, the undersigned notary public, on this _16th_ day of February, 2010, personally appeared Robert John Wright, who being duly sworn by me deposed and said: 1. "I am Robert John Wright, the Relator in this case. 2. I am over 21 years of age and am competent to make this affidavit. 3. I have read the Motion for Leave and the Amended Motion for Rehearing and En Banc Reconsideration in Instanter and exhibit to which this verification is attached, and every factual statement contained therein is within my personal knowledge and is true and correct. FURTHER AFFIANT SAYETH NOT. ____Original signed and notarized____ Robert John Wright – Relator

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CERTIFICATE OF SERVICE I certify that, on or about February _16th_, 2010, I electronically served a copy of the motion for leave and this motion to the email addresses listed below:

_/s/: Robert John Wright__ Robert John Wright P.O. Box 797762 Dallas, Texas 75379 (972) 955-6735

Wm. Lance Lewis llewis@qsclpc.com Quilling, Selander, Cummiskey & Lownds 2001 Bryan Street, Suite 1800 Dallas, Texas 75201 Robert J. Davis bdavis@mssattorneys.com Matthews, Stein, Shiels, Pearce, Knott, Eden & Davis, L.L.P. 8131 LBJ Freeway, Suite 700 Dallas, Texas 75251 ***

David N. Kitner david.kitner@strasburger.com, Strasburger & Price, L.L.P. 901 Main Street, Suite 4400 Dallas, Texas 75202

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