## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 24

- 00131

- CV

___________________________

Original Proceeding 297th District Court of Tarrant County, Te xas Trial Court No. 1031532D

Before the En Banc Court Per Cur iam Memorandum Opinion on En Ban c Reconsideration 

### I N RE 

### J OHNATHAN 

### C OOPER 

### , Relator2 M EMORANDUM OPINION AND ORD ER ON EN BANC RECONSIDERATION Because Relator Jo hnathan Cooper raise s new issues in his motion for en banc
reconsi de ration , we de ny it.
I. B ACKGROUND Cooper filed a pro se writ o f mandamus on March 22 , 2024, to co mpel the trial
court to rule on his motion to appoint habeas counsel. After Cooper filed his petition, on March 27, 2024 , the trial court denied his motion

. Soon thereaf ter, o n April 1, 2024, we denied Co oper ’ s petition as moot.
W e mailed Cooper, who is in prison, a copy of our opinion , but on April 9, 2024, the post office returned o ur correspondence

. The penitentiary had refused t o accept our correspondenc e to Coo per

— d espite the p resence of our official seal , our return address , and Cooper ’ s appellate cause number on the e n velope

— because the envelope did not contain the wor ds “ Legal Mail ” on it

. On April 9, 2024, w e re

- sent a
copy of our op inion to Cooper

. Shortly ther eafter, on April 22, 2024, Cooper mailed his motion for en banc
reconsideration and , within it, argued that the trial cour t erred by den y ing his motion

t o appoint counsel

. W e received Cooper ’ s motion o n April 26, 2024. The dea dline for Coop e r ’ s motion , however, was April 16, 20 24. S ee Tex. R. App. P. 52.9. Cooper
missed the deadline

.3 II. D ISCUSSION Although Cooper ’ s motion was filed with in ten days of the deadline, b ecause Coo per did not mail his motion (April 22) until after its due date ( April 16) , he may not rely on the mailbox rule. See Tex. R. Civ. P. 5. A nd a lthough t he appellate rules provide a method to allocate additional time to file a motion for en banc
reconsideration if the pa rty d oes not receive notice of our order or judgme n t until
after the time to file the document ha s expired , that o ption is not available because

o ur record does not definitively show when Cooper received actual notice of our Apri l 1, 2024 opinion. 1 See Tex. R. App. P. 4.5. In any event, Cooper has not

r equested relie f und er Rule 4.5. Regardless, when a motion for en banc reconsideration is no t timely filed, we have ple nary jurisdiction for 60 days after our ju dgm ent. Tex. R. App. P. 19.1. Our

“ judgme nt ” he re is our April 1, 2024 memorandum opinion d eny ing Cooper ’ s p e tition as moot. Under Rule 19.1, we have plenary j ur isdiction until May 31, 2024. Assuming we have ju risdiction to hear Cooper ’ s motion, a party ca nnot use a motion for en banc reconsideration to raise new issues. See Rivera v. Baptist Fou nd. of
Tex. , N o . 13

- 17

- 00607

- CV, 2020 WL 103854, at *3 n.7 (Tex . App.

— Corpus Christi

– Edinburg Jan. 9, 2020, no pet.) (mem. op. o n r eh ’ g) ; Phifer v. N acogdoches Cnty. Cent.

1 In Cooper ’s certificate of service, he indicates that he gave his motion to prison officials to mail on April 15, 2024, but the postmark indicates that his motion was not mailed until April 22, 2024. The mail box rule focu ses on the postmark

. See Tex. R. Ci v. P. 5.4 Appra isal Dist. , 45 S.W.3d 159, 1 66 (Tex. App.

— Tyler 2000, pet. denied) (op. on
reh ’ g)

. In Coo per ’ s March 22, 2024 petition, he sought to co mpel t he trial court to
rule on his motion to appoint counsel . It has. It d enied it. Cooper now seeks t o complain abou t the trial c ourt ’ s ruling . That is a new issue an d may not be r aised in a

mo tio n for en ba n c reconsideration

. III. CONCLUSION We deny Coop er ’ s m otion for en banc reconsideration.
Per Curiam
Delivered: May 16, 2024