No. 04-0078

IN THE
SUPREME COURT OF TEXAS
AUSTIN, TEXAS

On appeal from the 5th Court of Appeals, Dallas
COA Case Number: 05-02-01683-CV

WHEREAS the Fifth Court of Appeals issued Judgment on Oct. 23, 2003, and on December 10, 2003 denied my Motion for Rehearing En Banc, and 45 days thereafter putting the due date on January 24, 2004, such being a Saturday, and Monday, January 26, 2004 being the first business day after the holidays, making such January 26, 2004 the deadline for having filed the item in question, and

WHEREAS Petitioner, UDO BIRNBAUM, in good faith caused to be mailed to this Court, twelve copies of his Petition and Appendix thereto, by United Parcel Service (UPS) on January 22, 2004, and also on that day a CERTIFIED letter (Exhibit 1) to the Clerk of this Court indicating such shipment by UPS, and attaching to such CERTIFIED letter a copy (Exhibit 2) indicating the documents HAD indeed been left with UPS for shipment, and

WHEREAS ANDREW WEBER, the Clerk of the Supreme Court, on February 2, 2004, left a message on my telephone answering machine, that "It is now February 2, and we have not received it, and we don't have any particularly good way of tracking it", and "Since you did not put it in the United States mail, you have no availability to file it under the Mailbox rule", and

WHEREAS Petitioner, UDO BIRNBAUM, yesterday, February 3, 2004, sent a CERTIFIED letter (Exhibit 3, attached) to the Clerk, detailing the above message, as well as that my documents appear to have indeed been received in the Supreme Court, but appear to have disappeared, and

WHEREAS this Court, per RAP Rule 53.7(f) "Extension of time", may grant an extension filed "no later than 15 days after the last day for filing the petition", and it today being less than 15 days from January 26, 2004, Movant asks that this Motion for Extension of Time to File (another set) be granted.

Petitioner, UDO BIRNBAUM, prays that this Court grant a thirty (30) day extension from the original January 26, 2004 date, to file another set.

Petitioner, UDO BIRNBAUM, also prays that this Court take judicial notice of the frightening abuse of the judicial process, starting with the trial court, then in the Court of Appeals, as indicated in my Petition for Review, i.e. that the whole proceedings are indeed "an error of law of such importance to the state's jurisprudence that it should be corrected." RAP Rule 56.1(a)(5)

Sincerely,

_______________

Udo Birnbaum, Pro Se
540 VZ CR 2916
Eustace, Texas 75124
(903) 479-3929 phone and fax