JURISDICTIONAL DEFECT

CAUSE NUMBER: \3>-l5~OQ [3D ~0\)

TRIAL COURT NUMBER: 3-42362

IN RE BILLY ROSS SIMS, pro se § IN THE

Relator § 12 th COURT OF jAPPEALS^OURT OF APPEALS

§ AT TYLER, rEX%§ Courtof Af?fteg?sDistrict

§

MOTION FOR THE SUSPENSION OF OPERATION OF RfJLE:

PURSUANT TO TEXAS RULES OF APPELLATE PROCEDURE

TO THE HONORABLE COURT OF APPEALS:

COMES NOW the Relator, Billy Ross Sims, (Sims), pro se, and

files this Motion for Suspension of Operation of Rules under TRAP

Rule 2, and would show the Court the following:

JURISDICTION: This Court has jurisdiction over the trial court -

1. Relator is a State prisoner of the TDCJ. It appears that Rule

9.3 requires filing of an original and multiple copies. Relator has

no outside help and no access to copy machines at the prison unit.

The Court is asked to suspend Rule 9.3, and allow Sims to file only

this original and no other copies. No parties other than the trial

court judge and district clerk are involved at this stage of the

proceeding, and no service of process was issued upon the named

defendants in the civil suit.

2. With no service of process, there were no parties to confer with

other than the court judge and district clerk to see if they would

oppose this motion, and the Court is asked to suspend TRAP Rule 10.

3. Relator asserts that this appellate process is only necessary

due to a bad faith ruling by the trial court judge intended to dis

miss Relator's consitutional claims without due process and without

jurisdiction to enter an Order that included imposition of cost and

fees.

JUL 29 2015

TYLER TEXAS

CATHY S. LUSK, CLERK
4. TRAP Rule 2 allows the Court of Appeals to order a different

procedure, and Relator asks the court to review the trial court's

ruling, in part, under TRAP Rule 24.4(a)(5) abuse of discretion

under 24.3(a) for the reasons stated in the attached petition for

writ of mandamus . In Ordering Dismissal of the claims under Chapter

14 Tex .Civ .Prac .Rem-Code, the trial court called the claims 'fri

volous' and imposed costs and fees and order the department to

seize Relator's trust fund account, which it did, and Relator has

suffered irrepairable harm, because State Law in RIOS vs CALHOON,

889 SW2 257, 258-59 (Texas 1004) holds that the trial court had no

jurisdiction to impose costs and fees because no challenge was made

to the In Forma Pauperis Application. Also, the law states that it

is imroper, at the pleading stage to dismiss an inmate's civil suit

without any factfinding, and the trial court failed to provide any

due process protections at the pleading stage, when Texas operates

on notice pleading and Sims' complaint complied with the law.

The trial court initialed the Order of Dismissal on June 30, 2015,

and timed the mailing to arrive at the prison at the same time the

Relator's Veteran Benefit and the Order of Dismissal cause the prison

to seize the funds that are exempt from seizure, levy, attachment or

assignment. It was an abuse of discretion not only to dismiss the

claims at the pleading stage, but also the court knew or should have

known it had no jurisdiction to impose cost and fees.

5. Relator has started the appellate process in a timely manner by

filing a request for findings of fact and conclusions of law with

the trial court, which extends the deadline for filing the notice

of appeal to 90 days under TRAP Rule 25.1(a)(4). However, this

creates a problem:

2
An appeal requires Relator to file the notice of appeal with

the trial court clerk and it is the trial court that determines if

an appeal is 'frivolous;' see Chapter 13.003(a) Civ.Prac.Rem .Code

and while Chapter 13 isn't applicable to prisoner litigation, see

13.004, Chapter 14 was fashioned on Chapter 13, and this would force

Relator to go through a trial court that has failed to provide a

neutral and detached hearing officer in order to achieve an appeal

to this court . The trial court hearing officer would have an incentive

to prevent an appeal by Relator to ask this court to review the void

Order of Dismissal that is based on abuse of the court's discretion

and lack of jurisdiction .

Chapter 14 TCPR code seems to refer to inmate litigation against

'the department;' see 14.001(2), and Relator's suit is not against

the 'department' and should not be applicable to suits filed against

elected and appointed state officials in their individual capacities.

The statute doesn't mention anyone else in its scope. Since the

department isn't a party to the litigation, Chapter 14 should not

apply, and Relator asks the Court to suspend that rule as well.

This Court is asked to Order a different procedure and allow

Relator to file his notice of appeal with this court at the appro

priate time; suspending Rule 25.1(b) and (e).

6. Because there was no due process hearing in the trial court, as

permitted by 14.003(c) and 14.008(a)(b), there is no reporter's

record; however, the clerk's record is important to this appellate

review and Relator cannot afford to pay for copies, and this court

is asked to order the trial court clerk to produce the clerk's

record under TRAP Rule 34 and 35. Also, that it will Order that

the Relator's typed verbatim copies of the partial clerk's record
attached as Exhibits to the underlying petition for writ of mandamus

be deemed suitable under GARRETT vs BORDEN, 283 SW3d 852 (Texas 2009).

7. Under the prison mailbox rule, Relator filed a timely request

for findings of fact and conclusions of law with the trial court on

July 8, 2015. The case was tried under Chapter 14.003(a), (b), without

a jury and before service of process on the defendants and the court

hearing official relied solely on 14.003(a)(2) 'frivolous' without

explaining how the law applied to the facts or the facts applied to

the law. This Court is asked to find that Rule 25.1(a)(4) is relevant

and that if findings of fact and conclusions of law are not required

by the rules of civil procedure that they could properly be considered

by the appellate court in determining if the trial court abused its

discretion, because Relator asserts that the constitutional claims

he raised are not 'frivolous' under the State's definition, and that

'notice pleading' statements that state officials are violating the

relator's equal protection rights and imposing a new law in an ex

post facto, retroactive manner and how this is occurring, are not in

fact 'frivolous' claims, and call for factfinding. 'Frivolous' might

be a claim like 'the department isn't selling me chunky peanut butter'

but, the department isn't a party to the litigation sub judice and

Relator's short, plain notice pleading statements complied with State

law and are not 'frivolous' by definition, thus the trial court

official abused the court's discretion at the pleading stage referring

to Chapter 14, et seq to dismiss relator's claims. This Court is asked

to require the trial court to produce findings of fact and conclusions

of law for this appellate review.
PRAYER

This Court is asked to suspend the operation of the Rules set

forth above and grant this motion to provide relator with equitable

relief. The Court is asked to waive its filing fee in the interest

of justice and allow relator to proceed in forma pauperis during

the petition for writ of mandamus.

Further that the Court allow relator to file only this original

copy of the motion sub judice, and, the petition for writ of mandamus

The Court is asked to suspend Rule 10; and review the trial court's

abuse of discretion, in part under Rule 24.3(a) and 24.4(a)(5); and

that under RIOS, supra, find the trial court had no jurisdiction to

impose cost and fees because no challenge was made to the IFP appli

cation . The Court is asked to accept the Exhibits in the appendix of

the petition for writ of mandamus as adequate under GARRETT, supra,

and Order the trial court clerk to produce the Clerk's Record in its

entirety, including relator's request for findings of fact and

conclusions of law. The Court is asked to suspend TRAP Rule 52.3

(j)(l)(C), and take judicial notice of its own records, as relator

does not have the capacity to copy and mail the texts of the caselaw or statutes, or Rules of Civil Procedure, or Appellate Procedure

or Civil Practices & Remedies Code referred to above . This Court is

asked to suspend TRAP Rule 25 and allow relator to file his notice

of appeal with the clerk of this court and send a copy to the trial

court clerk. Respectfully prayed for.

VERIFICATION

I, Billy R. Sims, #511649, being presently incarcerated in the

TDCJ, Powledge Unit, declare under penalty of perjury that the

foregoing is true and correct of my own beliefs, signed this 27th

Day of July, 2015. ^-p^^-^

BILLY R. SIMS, 511649 ^^ \ V->

1400 FM 3452, Palestine, TX 75803