in Re: Billy Ross Sims

• Court: Court of Appeals of Texas
• Decided: July 29, 2015
• Docket: 12-15-00190-CV
• Status: Published

Opinion

\2-i5-oolHO-N JULY 27, 2015 Ms. Cathy S. Lusk, Clerk Twelfth Court of Appeals 1517 West Front Street, Suite 354 Tyler, Texas 75702 FILED IN eOUBT OF APPEALS 12th Csurt of AsjDsals District; RE: Filing of Original Petition For Writ Of Mandamu IN RE BILLY ROSS SIMS, # 511649 JUL 29 2015

TO THE HONORABLE CATHY S. LUSK: TYLER TEXAS CATHY S. LUSK, CLERK Dear Ms. Lusk, Please find enclosed my Petition For Writ Of Mandamus, and a Motion For Suspension Of The Rules. This is an original proceeding. I have also enclosed an affidavit of inability to pay cost. I have enclosed a SASE for your reply notice of filing. I thank you for your kindness . Kind regards,

^ 1^ Billy R. Sims, 511649 Powledge Unit 1400 FM 3452 Palestine, TX 75803-2350 CAUSE NUMBERi^AO ~^Ql^Q' IN RE BILLY ROSS SIMS, 511649 IN.THE Relator § TWELFTH COUlft|!0F."'AP©SJffi3'OF APPEALS AT TYLEP,1 TEXAS

MOTION FOR FREE APPELLATE RECORD

Comes now the Relator, Billy Ross Sims (Sims), and &sks the GfRiffcXAS CATHY S. LUSK, CLERK to order the clerk to prepare a free appellate reco the

real party in interest and filed a civil suit not involving the department; see Chapter 14.001(2), on February 27, 2015, under the prison mailbox rule. No contest to the IFP application was made.

On 6-30-15, the trial court initialed an Order of Dismissal disposing

of Sims' constitutional claims without a factfinding hearing at the

pleading stage as 'frivolous,' A request for findings of fact and conclusions of law was filed on July 8, 2015 via the prison mailbox

which extended the time for perfecting an appeal under TRAP Rule 25.1

(a)(4) to 90 days from 6-30-15. The Clerk's Record which includes

the Complaint Sims filed, is necessary for this appellate process

in relation to the Order of Dismissal's claim that Sims' Constitutional

claims presentations were 'frivolous' at the pleading stage when Texas courts operate on 'notice pleading' rules of Civil Procedure, and Sims cannot afford to reproduce and mail the complaint to this Court .

This appellate process is not frivolous because the trial court failed to provide a neutral and detached hearing official, who then acted to dispose of legitimate claims of constitutional violations

that State officials not employed by the department were denying

Sims equal protection of the laws and violating his constitutional protections to ex post facto, retroactive application of new laws,

and the trial court official labeled this 'frivolous' at the pleading

stage and abused the court's discretion.

1 This Court has jurisdiction over the trial courts PADILLA vs

McDANIEL, 122 SW3d 805 (TCA 2003).

The entire Clerk's Record is necessary to show the correspondence

that occurred with the trial court officials after the case was filed.

An appellate review of the short Complaint and affidavit would be

necessary to determine the trial court's hearing official's abuse of

the court's discretion not only in labeling Sims' legitimate claims

'frivolous' but in imposing costs and fees with no jurisdiction to

do so, thus causing Sims irrepairable harm, in that it caused the

department to seize Sims' VA benefits that are exempt from the legal

process under state and federal law.

PRAYER

For these reasons Sims asks this Court to order the district

clerk to prepare a free appellate record.

There was no conference regarding this motion as the only parties

at this stage are tha district clerk and judge . No service of process

on defendants in the civil suit at this tage -

VERIFICATION

I, Billy R. Sims, being presently incarcerated in the TDCJ-CID declare under penalty of perjury the foregoing is true and correct according to my own beliefs. Signed this 27th Day of July, 2015.

Billy R. Sims, 511649 Powledge Unit 1400 FM 3452 Palestine, TX 75803