Case Information

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In the Court of Appeals

Second Judicial District

Tarrant County, Texas

In re Jose Manuel Gonzales, Relator

PETITION FOR WRIT OF MANDAMUS

Francisco Hernandez Attorney for Relator State Bar No. 09515950 E-mail: francisco@texasmexicolaw.com 800 West Weatherford Street FORT WORTH, TX 76102 Telephone: (817) 335-2331 Facsimile: (817) 882-8444

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LIST OF PARTIES AND COUNSEL

The following is a list of all parties and all counsel in this matter: Relator in this matter is Jose Manuel Gonzales, and is Defendant/Respondent in the underlying case described below. The attorney representing Relator is:

Francisco Hernandez 800 West Weatherford Street FORT WORTH, TX 76102 Respondent in this matter is the Honorable Ralph Swearingin Jr., Justice of the Peace, Justice Court, Precinct One, of Tarrant County, Texas.

The real party in interest in this case is identified below, and is represented by counsel as indicated:

Francisco Hernandez Attorney for The State of Texas Law Office of Francisco Hernandez 800 West Weatherford St Fort Worth, Texas 76102 TEL: (817) 335-2331 FAX: (817) 882-8444

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Table of Contents

List of Parties and COUnSEL ..... 1 Table of Contents ..... 2 INDEX OF AUTHORITIES ..... 3 Statement of the Case ..... 4 Statement of Jurisdiction ..... 5 Issue Presented ..... 5 ARGUMENT ..... 6 Mandamus Is Appropriate to Enforce the Nondiscretionary, Ministerial Duty to Forward the Appeal Bond. ..... 6 A. Mandamus to Compel a Ministerial Act. ..... 6 B. Motion for New Trial Was Timely Filed ..... 6 C. Because Relator Presented a Valid Appeal Bond, Respondent Had a Mandatory and Ministerial Duty to Forward the Appeal to the Corresponding County Court at Law ..... 7

1. The Appeal Bond was properly filed. ..... 7
2. Respondent has been presented with a valid appeal bond, and thus has a mandatory and ministerial duty to forward the appeal to the corresponding county court at law ..... 8 CONCLUSION AND PRAYER ..... 9 Rule 52.3(J) Certification ..... 10 APPENDIX REFERENCES ..... 11 CERTIFICATE OF SERVICE ..... 12

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INDEX OF AUTHORITIES

CASES

Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991).

Statutes and Rules

Tex. Gov't Code §22.221 Tex. R. Civ. P. 306a Tex. R. Civ. P. 312 Tex. R. Civ. P. 571

*5 STATEMENT OF THE CASE

1. The underlying suit arises out of Cause No. JP01-15-PH00000029, entitled "The State of Texas vs. All Items on Exhibit A: Respondent: Jose Manuel Gonzalez," in the Justice Court Precinct 1, Tarrant County, Texas.

2. The underlying suit is a property hearing to determine the right of possession of purportedly stolen property.

3. Respondent is Ralph Swearingin Jr., Justice of the Peace of the Justice Court Precinct One of Tarrant County, Texas.

4. A property hearing was scheduled in which Relator was respondent and The State of Texas was the Plaintiff. Attorney for Relator, Francisco Hernandez, made a personal appearance at that property hearing. Francisco Hernandez signed in with the Bailiff and gave his name to the Judge, whom wrote it down. Francisco Hernandez then requested a continuance and it was granted. Some time after, the property hearing was rescheduled for August 3, 2015 but neither Relator, nor his attorney, was given notice. A default judgment was rendered for the Plaintiff, and an Order of Forfeiture was mailed to Jose Manuel Gonzales on August 20, 2015 and an attempt to deliver was made on August 22, 2015 by the United States Postal Service. Because no authorized recipient was in Relator’s home at the time of delivery, no return receipt was signed. After relator finally received the Order of Forfeiture, his attorney filed a Motion for a New Trial

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on September 4, 2015. The motion was denied on September 9, 2015, without a hearing, while Judge Swearingin was on vacation. Attorney for Relator, Francisco Hernandez, then filed an Appeal Bond with the Justice Court on September 15, 2015. Over 30 days have elapsed and Honorable Swearingin, Respondent, has failed to send the appeal for a denied Motion for New trial to the corresponding County Court.

STATEMENT OF JURISDICTION

This Court has jurisdiction under Section 22.221 of the Texas Government Code.

ISSUES PRESENTED

Relator seeks mandamus relief compelling Respondent to forward his appeal to the corresponding county court at law, in accordance with an appeal bond from a justice court filed pursuant to the Texas Rules of Civil Procedure 312 and 571. The appeal bond was filed in response to a denial of a motion for new trial. Under Rule 571, an appeal bond is to be filed within 10 days of receipt of the denial of a motion for new trial and the appeal bond must comply with other requirements. Relator complied with the 10-day filing deadline and with the other requirements.

Did Respondent fail to perform his nondiscretionary, ministerial duty to forward to appeal to the corresponding county court at law?

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ARGUMENT

I. Mandamus Is Appropriate to Enforce the Nondiscretionary, Ministerial Duty to Forward the Appeal Bond

A. Mandamus to Compel a Ministerial Act.

A writ of mandamus is proper to compel a public official to perform a ministerial act. Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991). A duty imposed by law is ministerial when -the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the exercise of discretion. Anderson, 806 S.W.2d at 793. That is the case here.

B. Relator's Motion for New Trial Was Timely Filed

The Texas Rules of Civil Procedure provide that after a judgment is signed, the "clerk of the court shall immediately give notice to the parties or their attorneys of record by first class mail advising that the judgment or order was signed." Tex. R. Civ. P. 306a(3). If within twenty days after the judgment is signed, a party adversely affected by the judgment or his attorney has nether received the notice required buy Rule 306a(3), nor acquired actual knowledge of the order, then the period for filing a motion for new trial begins the date that such party or his attorney acquired actual knowledge of the signing, rather than the day the order was signed. See Id.

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Here, attorney for Relator, Francisco Hernandez, never received notice of the final judgment or the Order of Forfeiture. Relator received the Order of forfeiture, but did not have actual knowledge within the twenty days after the order was signed. The default judgment was singed on August 3, 2015. The Order of Forfeiture was sent to Relator on August 20, 2015, a full 17 days after the judgment was signed. The United States Postal Service tracking information provides that on August 22, 2015 the USPS attempted to deliver the Order but instead left a notice because no authorized recipient was available. See App. D. Relator did not have actual knowledge of the signing of the Order until 20 days had passed from the date judgment was signed. Thus, the period for filing the Motion for New Trial began on the date that actual knowledge was acquired, not when the judgment was signed. Because Relator's attorney filed the Motion for New trial well within the time period for filing said motion, the motion for New Trial was timely filed.

C. Because Relator Presented a Valid Appeal Bond, Respondent Had a Mandatory and Ministerial Duty to Forward the Appeal to the Corresponding County Court at Law

1. The Appeal Bond was properly filed.

For an appeal bond to be filed, it must comply with certain requirements. Rule 571 of the Texas Rules of Civil Procedure states those requirements:

*9 The party appealing, his agent or attorney, shall within ten days from the date a judgment or order overruling motion for new trial is signed, file with the justice a bond, with two or more good and sufficient sureties, to be approved by the justice, in double the amount of the judgment, payable to the appellee, conditioned that appellant shall prosecute his appeal to effect, and shall pay off and satisfy the judgment which may be rendered against him on appeal; or if the appeal is by the plaintiff by reason of judgment denying in whole or in part his claim, he shall file with the justice a bond in the same ten-day period, payable to the appellee, with two or more good and sufficient sureties, to be approved by the justice, in double the amount of the costs incurred in the justice court and estimated costs in the county court, less such sums as may have been paid by the plaintiff on the costs, conditioned that he shall prosecute his appeal to effect and shall pay off and satisfy such costs if judgment or costs be rendered against him on appeal.

Relator's attorney filed the appeal on September 15, just six days after the judgment denying the motion for new trial was entered. Relator's attorney paid the necessary filing and appeal fees and complied with the remaining requirements.

See App. A.

Additionally, the rule specifies that the "appeal shall not be dismissed for defects or irregularities in procedure, either of form or substance, without allowing appellant five days after notice within which to correct or amend same." Tex. R.

Civ. P. 571. Relator was not told of any irregularities that required amendment. Therefore, Relator timely and properly filed an appeal bond. 2. Respondent has been presented with a valid appeal bond, and thus has a mandatory and ministerial duty to forward the appeal to the corresponding county court at law.

Texas Rule of Civil Procedure 571 also state that "[w]hen such bond has been filed with the justice, the appeal shall be held to be thereby perfected and all

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parties to said suit...shall make their appearance at the next term of court to which said case has been appealed."

The justice court had a clear legal duty to forward the appeal so that each party could make their appearance at the next term of court to which the case had been appealed. The Respondent refused to perform a ministerial act that the court is required to perform. The Respondent clearly refused to grant the relief requested.

There is no other adequate remedy at law available, whether through appeal or otherwise, to rectify the improper action or omission complained of herein.

PRAYER

Relator asks that this Court issue a writ of mandamus commanding Respondent, the Honorable Ralph Swearingin Jr., to forward Realtor's appeal for a denial of a Motion for New Trial to the Corresponding County Court at Law, and for such other and further relief to which Relator may be entitled.

Respectfully submitted,

Texas Bar No. 09515950 800 West Weatherford Street FORT WORTH, TX 76102 Tel. (817) 335-2331 Fax. (817) 882-8444

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CERTIFICATION

I hereby certify that I have reviewed the above Petition for Writ of Mandamus and have concluded that every factual statement in the said petition is supported by competent evidence included in the appendix or record.

$PA$

Jose Manuel Gonzales

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APPENDIX REFERENCES

The attached Appendix ("App.") consists of the following: Appeal Bond Form A Order of Forfeiture Dated August 20, 2015 ..... B Judgment Signed by Respondent ..... C USPS Tracking of Order of Forfeiture Delivery ..... D

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Certificate of Service

A copy of this notice is being filed with the appellate clerk in accordance with rule 25.1(e) of the Texas Rules of Civil Procedure. I certify that a true copy of this Petition for Writ of Mandamus was served in accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each party or the attorney for such party indicated below by personal delivery.

Francisco Hernandez Attorney for Relator

Ralph Swearing Jr. 100 E Weatherford Street, Suite 450 Fort Worth, Texas 76102 (817) 884-1395

Law Office of Francisco Hernandez 800 West Weatherford St Fort Worth, Texas 76102 TEL: (817)335-2331 FAX: (817) 882-8444

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The state of Texas

1

IN THE JUSTICE COURT, PRECINCT NO. TARRANT COUNTY, TEXAS

VS.

NoJPOI-PHOOOOOO 29

Jose manuel Gonzalles

Jodgment the said * Jose manuel Gonzales has appealed to the County Court at law No. $$ of Tarrant County, Texas.

NOW, THEREFORE, we Jose manuel Gonzales as Principal and Maria Corpajal and Magen escareño Sureties, acknowledge ourselves bound to pay unto the said Justice court, precinct I the sum of $$ DOLLARS, conditioned that the said Justice court, Precinct I $$ shall prosecute defendants said appeal to effect, and shall pay off and satisfy the judgment which may be rendered against a defendant on such appeal.

WITNESS our hands, this IS day of September A.D., 28.15

APPROVED:

Justice of the Peace, Precinct No. I

Tarrant County, Texas

• Double the amount of the Judgment

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SHAREN WILSON

Criminal District Attorney Tarrant County

August 20, 2015

JOSE MANUEL GONZALEZ 5424 BONNELL AVE FORT WORTH, TX 76107 RE: CAUSE NO. JP01-15-PH00000029; THE STATE OF TEXAS VS. ALL ITEMS ON EXHIBIT A; RESPONDENT(S): JOSE MANUEL GONZALEZ

Dear Mr. Gonzalez: Enclosed please find a copy of the ORDER OF FORFEITURE in connection with the above-referenced Cause.

If you have any questions regarding this document, please do not hesitate to contact me.

Sincerely, SHAREN WILSON CRIMINAL DISTRICT ATTORNEY TARRANT COUNTY, TEXAS

ANN WRIGHT, Assistant Tarrant County Criminal District Attorney Tarrant County Criminal District Attorney's Office Civil Division

AW:cd Enclosure(s) File # 14-002-SP Certified - Return Receipt Requested: 70143490000033208284

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THE STATE OF TEXAS

ALL ITEMS ON EXHIBIT A

IN THE JUSTICE COURT PRECINCT ONE

TARRANT COUNTY, TEXAS

ORDER OF FORFEITURE

On the $$ day of August 2015, came on for hearing Petitioner, The State of Texas' Petition to Determine Right to Possession of Stolen Property.

Petitioner, appeared by and through her attorney of record. Respondent, Jose Manuel Gonzalez, though duly noticed of this hearing, did not appear.

After hearing the argument of counsel and reviewing the evidence presented, it is hereby,

ORDERED that the property made the subject of this suit and more particularly described in Exhibit A, attached hereto and incorporated herein, is forfeited.

IT IS FURTHER ORDERED that the property on the attached Exhibit A, shall be released to the Fort Worth Police Department for use or disposition in accordance with Article 47.01a, Texas Code of Criminal Procedure. SIGNED this the $$ day of $$ 2015.

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USPS.com

USPS Tracking ${}^{\circledR }$

USPS Tracking ${}^{\circledR }$

Tracking Number: 70143490000033208284

Updated Delivery Day: Saturday, August 22, 2015

Product &; Tracking Information

Postal Product:

DATE &; TIME

August 22, 2015, 8:33 am

Features:

Certified Mail ${}^{\text{TM}}$ STATUS OF ITEM Notice Left (No Authorized Recipient Available)

LOCATION

FORT WORTH, TX 76107

We attempted to deliver your item at 8:33 am on August 22, 2015 in FORT WORTH, TX 76107 and a notice was not bristable on authorized equipment was not available. This may include, entitlementy, the visiting letter, the message curnendoliverv or calling 800-800-USPS, or may pick up the item at the Post Office indicated on the notice. If this item is undueated by Sendomter 21, 2015 then it will be retained to sender

August 22, 2015, 7:30 am August 22, 2015, 7:20 am August 22, 2015, 7:15 am August 21, 2015, 11:24 pm August 21, 2015, 10:16 am August 20, 2015, 11:03 pm August 20, 2015, 10:46 pm

Out for Delivery Sorting Complete Arrived at Unit Departed USPS Facility Arrived at USPS Facility Departed USPS Facility Arrived at USPS Facility

FORT WORTH, TX 76109 FORT WORTH, TX 76109 FORT WORTH, TX 76109 FORT WORTH, TX 76161 FORT WORTH, TX 76161 NTX P&;DC NTX P&;DC

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