Case Information

*1 MOTION FOR EN BANC RECONSEDERATION

No. 03-16-00089-CV

IN THE THERD COURT OF APPRALS Austin, Texas

SEven Thousand Eight Hundred and Twenty-Six Dollars and zero cents in U.S. Currency 4.

State of Texas

On appeal from the 331st Judicial District Count of Travis County, Texas

James Walker's Motion for En Banc Reconsideration, submitted by James Walker PRO SE 41536077 3614 Bill Price AD Del Vallo, TX 78617

To the Honourable Count of Appeals:

James Walker, Appellent, files to following Motion for En Banc Reconsideration:

*2 PORNTS RELIED ON FOR EN BARC RECONSEDERATION

The Count of Appeals ruled that Walker may not complain of the trial Count overruling Walker's Motion for New Trial because of Wafkerts failure to bring his Motion for New Trial to the attention of the trial judge. This holding is in error because: 1. The Count's opinion will create confusion in that it appears to reinstate the "presentment" requirement that was removed from R. 329 (b) of the Tex.R.Civ. P. in 1981; 2. The Count's opinion will create confusion in that it appears to conflict with a prior similar case from the same count; 3. The Count's opinion will create confusion in that it appears to conflict with Texas Supreme Court precedent.

ARGUMENT

Regarding Point!, prior to 1981 there was a "presentment" requirement contained within Rule 329 (b), expressly requiring any proponent of a Motion for New Trial to "present" said Motion to the trial Court. That presentment requirement was removed from Rule 329 (b) in 1981 by the Texas Supreme Court. Cecil $$ 5$ with 804 S.W. 2d 509, 511 n. 3 (Tex. 1991) - The Court in the present case appears to implicitly adopt the pre-1981 version of Rule 329 (b) by requiring presentment of a Motion for New Trial.

Regarding Point 2, the Court of appeals relied primarily on two (2) cases in its ruling. The first case is Truong v. Rose, no. 03-99-00740-CV, 2000 WL 1125245 at$1 (Tex.App.-Austin.Aug.10,2000, no pet.). The Truong case is unpublished and provides no precedent value. Tex.R.App. P. 47.7. See also Ortega v. City Natl Bank 97 S.W. 3d 765, 773 n. 7 (Tex.App. Corpus Christi 2003, no pet.). The Second case is Shamrock Roofing Supply, Inc. v. Mercantile Natl Bank 703 S.W. 2d 356 (Tex. App. - Dallas 1985, no writ). The Shamrock case (and its progeny) was questioned by this count in Limestone Consfri, Inc. v. Summit

*4 Commercial Indus. Pnops., Inc. 143 S.W. 3d 538 (Tex. App.-Austin 2004, no pet.). Appellant acknowledges that limestone dealt with a post-answer summary judgment with no notice (and thus a "due process" rather than "equitable" analysis), but the covert nonetheless declined to embrace Shamrock and questioned it by citing whether Shamrock's "presentment" mandate components with Texas Supreme Court precedent. Limestone"S46 n.15, citing Strackbein v. Prewitt 671 S.W. 2d 37 (Tex. 1984).

Regarding Point 3, this count's opinion appears to conflict with Texas Supreme Court precedent. In Strackbein, the Court stated that "It is sufficient that the movants motion and affidavits set forth facts which, if true, would negate intentional or consciously indifferent conduct". Strackbein at 38. In Cecil, the Supreme Court, in referring to Rule 329 (b) of the Tex. R. Civ. P., stated that the Q. 1981 amendments to Rule 329 (b) eliminated that Rule's former requirement that a movant call a motion Con new trial to the trial count's attention" Cecil at $511, n \cdot 3$ .

For these reasons, Walker requests that this court grant his Motion for EnBanc Reconsideration, withdraw its priot opinion and judgment, and issue en opinion and judgment reversing the trial court and granting Wa Iker a new trial. Walker also requests any other relief to which he may be entitled.

Respectfully Submitted,

James Wa Iker PRO SE #1536077 3614 Bill Price Rd Del Valle, TX 78617

Certificate of Service

the undersigned certifies that a copy of this Motion for En Banc Reconsideration was sent via us. mail to Scott Taliafano of the Travis County bistriot Attorney's office at 8.0. Box 1748 , Austin, TX 78767 on the 1 day of October, 2016.

*6 Count Clerk 3d Count of Appeals P.O. BOX 12547

Arestin, TX 78211

Re: 03-16-00089-cV

Sirs, Enclosed place Find Appellant's Motion for En Banc Reconsideration. A copy has been forwarded to State's counsel.

Sincerely James Walden $⋆ 1536077$ 3014 6:16 Price 80 Dallalle, TX 78617