Robert C. Morris v. Sherri Milligan

IN THE
TWELFTH COURT OF APPEALS
TYLER , TEXAS
F|LED in COURT OF APPEALS NO. 12-14-00 3 32-CV
REC'D If ^LS
12th Court r . Hstrict
12th Court of Appeals District
\L\iXL
ROBERT C. MORRIS
/CERTEXAS/ CATHV S. LUSK, CL
CATHY 3. LUSK^CMER! APPELLANT
vs
SHERRI MILLIGAN , ET. AL.,
APPELLEE
ON APPEAL FROM THE 349TH JUDICIAL DISTRICT COURT OF
ANDERSON COUNTY, TEXAS, TRIAL CAUSE NO. 349-6270
APPELLANT'S PRO SE BRIEF
ROBERT C. MORRIS
TDCJ-ID # 1311083
SMITH UNIT
13 13 CR 19
LAMESA , TEXAS 79331
IDENTITY OF PARTIES AND COUNSEL
APPELLANT ROBERT C . MORRIS
TDCJ-ID # 13 11083
SMITH UNIT
1313 CR 19
LAMESA , TEXAS 7933 1
COUNSEL: PRO SE
APPELLE(S ) SHERRI MILLIGAN
BRYAN GORDY
CHRISTY HOISINGTON
CO UN SE L : PATRICK BREZIK
ASST. ATTORNEY GENERAL
PO BOX 1254 8
AUSTIN, TEXAS 78711-2548
TRIAL JUDGE : HON. PAM FOSTER-FLETCHER
349TH JUDICIAL DISTRICT COURT
500 N. CHURCH ST. , RM .30
PALESTINE , TEXAS 75801
STATEMENT REGARDING ORAL ARGUMENT
Appellant at this time waives oral arquments, unless appellee
request oral arquments at a later time.
11
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL i
STATEMENT REGARDING ORAL ARGUMENT ii
TABLE OF CONTENTS iii
MDEX OF AUTHORITIES iv
STATEMENT OF CASE 1
ISSUES PRESENTED FOR -REVIEW -- 2
STATEMENT OF FACTS ' 3
ISSUE NO.l FOR REVIEW 5
DOES RULES OF CIVIL PROCEDURE CONTROL OR DOES
CIVIL PRACTICE AND REMEDIES CODE REGARDING
DEFAULT JUDGMENTS AND NOTICES?
ISSUE NO .2 FOR REVIEW **
DID TRIAL COURT ABUSE ITS DISCRETION M
SETTING ASIDE DEFAULT JUDGMENT?
ISSUE NO.3 FOR REVIEW • '&
WAS CHAPTER 14 OF TEXAS CIVIL PRACTICE AND
REMEDIES CODE UNLAWFULLY ENACTED?
ISSUE NO. 4 FOR REVIEW , 2°
DID TRIAL COURT ABUSE ITS DISCRETION W
DISMISSING SUIT UNDER CHAPTER 14 AFTER
5^ YEARS, DEFAULT JUDGMENT, AND VARIDUS
PLEAD INGS ?
PR AYE R 21/
CERTIFICATE OF SERVICE 3«/
CERTIFICATION 3*
APPENDIX ATTACHED SEPARATE
ill
INDEX OF AUTHORITIES
Page
BAR ASS'N OF DALLAS v HEXTER TITLE & ABSTRACT. 6,17
175S.W.2dl08 (Tex.Civ.App.-Ft.Worth 1943)
BELL v TDCJ-IO « 16,21
952 S.W.2d 156 (Tex-App .-Houston [14th Dist]1998)
BIRDO v SCHWATZER . 18
883S.W.2d386 (Tex.App.-Waco 1994)
BROWN v VILLEGAS 5.16
202 S.W.3d 803 (Tex.App.-San Antonio 2006)
CLEMENTS v BARNES 15
822 S.W.2d 658 (Tex.App.-Corpus Christi 1991)
CRADDOCR v SUNSHINE BUS LINES 12
133 S.W.2d 124 (Tex. 1939)
DIR. STATE EMPS. WORKERS' COMP. DIV. v EVANS 13
889 S.W.2d 266 (Tex. 1994)
DOWNER v AQUAMARINE OPERATORS INC „. 9,20
701 S.W.2d 238 (Tex. 1985)
GARRETT v MERCANTILE NAT. BANK OF DALLAS 6,17
168 S.W.2d 636 (Tex. 1943)
GROSS v CARROLL... 17
339 S.W.3d 718 (Tex.App.-Houston [1st Dist] 2011)'
HAMILTON v PECHACEK II
2014 Tex.App.Lexis 3096 (Tex.App.-Ft. Worth 2014)
HANKS v ROSSER . 11
378 S.W.2d 31 (Tex. 1964)
HELFMAN MOTORS, INC v STOCKMAN 14
616 S.W.2d 394 (Tex.App.-Ft. Worth 1981)
HICKSON v MOYA 9,16,17,20,21
926 S.W.2d 397 (Tex.App .-Waco 1996)
HOLT ATHERTON INDUSTRIES, INC v HEINE 14
835 S.W.2d 80 (Tex. 1992)
IN RE A.P.P. 12
74 S.W.33 570 (Tex.App.-Corpus Christi 2002)
IN RE R.R 13
209 S.W.3d 112 (Tex. 2006)
IN RE S.K.A . 14
236 S.W.3d 875 (Tex.App.-Texarkana 2007)
JOHNSON v EDMONDS..., 12
712 S.W.2d 651 (Tex.App.-Ft. Worth 1986)
LEACHMAN v DRETKE 16,22
261 S.W.3d 297 (Tex.App.-Ft. Worth 2008)
MATTHEWS v LENOR 10,11,15
2014 Tex.App.LEXIS 7903 (Tex.App.-Houston[lst Dist] 2014)
MO. PAC. R.R. CO. v CROSS 6.17
501 S.W.2d 868 (Tex. 1973)
INDEX OF AUTHORITIES(CONT)
Page
NABELEK v GARRETT 21
94 S.W.3d 648 (Tex.App.-Houston [14th Dist] 2002)
N.N. vINSTITUTE FOR REHABILITATION AND RESEARCH-. 6
234S.W.3d 1 (Tex.App.-Houston [1st Dist] 2006)
NORTON v MARTINEZ . » . 12
935 S.W.2d 896 (Tex.App.-San Antonio 1996)
OLIVARES v CAUTHORN 14
717 S.W.2d 431 (Tex.App.-San Antonio 1996)
PERAZA v STATE. 17
2014 Tex.App.LEXIS 13915 (Tex. App.-Houston [ist Dist J 2014)
REED v BUCK 17
370 S.W.2d 867 (Tex. 1963)
SELLS V DROTT 14
259 S.W.3d 192 (Tex-App.-Tyler 2007)
SMITH v STEVENS. 18
822 S.W.2d 152 (Tex.App.-Houston [1st Dist] 1991)
STRACKBEIN v PREWITT 12,13
671 S.W.37 (Tex. 1984)
SULLIVAN v OWENS.. 16,22
2011 WL 2409311 (Tex.App.-Eastland 2011)
SWEED v NYE 11
319 S.W.3d 791 (Tex.App.-El Paso 2010)
THOMAS v WICHITA GENERAL HOSPITAL. -. 17,21
952 S.W.2d 936 (Tex.App.-Ft. Worth 1997)
THOMPSON v SILVAS 21
2003 WL 22254950 (Tex.App.-Houston [1st Dist] 2003)
WHITE v STATE 21
37 S.W.3d 562 (Tex.App.-Beaumont 2001)
CONSTITUTIONS, STATUTES, OTHERS
TEXAS CIVIL PRACTICE AND REMEDIES CODE
• Chapter 13, Sec. 13.001 - 18
• Chapter 14, Sec. 14.002 - 14.003; 14.01.2 17,20,22
• Chapter 104, Sec .104 .001 - 104 .005 . 9,10,14,15
• Chapter 39, Sec. 39.01-39.02 5,7,8,14
TEXAS GOVERNMENT CODE
• Chapter 22, Sec. 22.004 ,... 5,6
• Chapter 323, Sec. 323.007 5
TEXAS RULES OF CIVIL PROCEDURE
• Rale 2 72
• Rule 21 13
• Rule 239 * 6
• Rule 329b 13
• Rule 819 7
SUNSET ADVISORY COMMISSION - Final Report (July 2013). 18
" M
STATEMENT OF CASE
Appellant Robert C. Morris filed a civil complaint against Appellees
on January 28, 2009 for the unlawful appropriation and destruction,
and disposed of personal property belonqinq to Morris.(CR 6). The suit
was assiqned cause number 349-6270 in trie 349th District Court of
Anderson County, Texas, Judge Pam Foster-Fletcher presiding. Morris
filed the necessary unsworn declaration inaccordance to Chapter 14 of
the Texas Civil Practice and Remedies Code.(CR 11-12; 2 SCR 5) .
Process of service of citation was conducted on Appellees on Feb-
ruay 18, 2009, returned and filed with the District Clerk on February
19, 2009. See Appendix A-C. On March 17, 2009, Morris filed three
pleadings concerning Default Judgment.(CR 21-23). The pleadings were
refiled on May 6, 2009.(CR 25-26 ; 2 SCR 7) . Linda Richey was served on
April 27, 2009 (Appx. D) and filed an answer on May 20, 2009 through
counsel Asst, Attorney General Julia Hamill Yiurray. (CR 27 ). A writ of
mandamus was filed to compel the trial judge to rule of the default
motion.(No. 12-09-00425-CV). The mandamus was denied due tothe trial
judge ruling on default judgment, qranting said default judament.(1 SCR
4). Appellees filed a motion for leave to file answer out-of-time, motion
to set aside default judgment and Original answer on June 7, 2010.(CR
30-40) .
A notice of appeal was filed, dismissed for want of jurisdiction.
A writ of mandamus was filed, denied by the Court of Appeals without
a written order. The Supreme Court subsequently denied writ in April
2011.
Morris filed various motions and numerous motions for hearing on
pre-trial motions. Appellees filed a motion to dismiss(CR 69) and a
response was filed. (CR 80) - None of the motions filed were ruled upon.
The trial court on October 23, 2014 entered an order of dismissal
for failing to file an affidavit or unsworn declaration relating to
previous filings. ^.CR 109) . A Motion to Reinstate Suit was filed on
November 6, 2014 (CR1I2) along with Notice of Appeal (CR 114) . On November
18, 2014, trial judge wrote a note stating "no action" regarding motion
to reinstate.(CR 116) . This appeal follows, which was granted two
extensions of time, one due to the failure of TDCJ Law Library Officials
to provide necessary legal supplies to prepare and file brief, i.e.,
paper.
CR - Clerk's Record
1 SCR - 1st Supplemental Clerk's Record
2 SCR - 2nd Supplemental Clerk's Record.
ISSUES PRESENTED FOR REVIEW
ISSUE NO .1 FOR REVIEW :
DOES RULES OF CIVIL PROCEDURE CONTROL OR DOES CIVIL PRACTICE
AND REMEDIES CODE REGRADING DEFAULT JUDGMENTS AND NOTICES?
ISSUE NO .2 FOR REVIEW :
DID TRIAL COURT ABUSE ITS DISCRETION IN SETTING ASIDE DEFAULT
JUDGMENT?
ISSUE NO.3 FOR REVIEW:
WAS CHAPTER 14 OF TEXAS CIVIL PRACTICE AND REMEDIES CODE
UNLAWFULLY ENACTED?
ISSUE NO .4 FOR REVIEW:
DID TRIAL COURT ABUSE ITS DISCRETION IN DISMISSING SUIT UNDER
CHAPTER 14 AFTER 5\ YEARS , DEFAULT JUDGMENT AND VARIOUS PLEADINGS?
STATEMENT OF FACTS
On November 6, 2006, Appellee Sherri Milligan, who in her official
capacity as a TDCJ official, searched Appellant Morris's property
pursuant to former Gov. Rick Perry's Executive Order of a system-wide
lockdown and search for cell phones and other illegal contraband (i.e.
money, drugs, weapons).
During the search of Appellant's property, Milligan had possession
and control of said property until completion of search. After
completion of search, it was discovered that Appellant Milligan took
without consent many items of Morris's property. It was also discovered
a short time later that Appellee. Milligan disposed of many items
without authority or consent and that Appellee Milligan damaged beyond
repair Appellant's typewriter.
Appellee Milligan without regard to Appellant's property, roughly
handled the property, threw property to the floor and refused to
return property she had taken without consent or authority.
Appellee Hoisington had a duty to investigate the claims of theft
by Milligan, but refused to perform her duties. This failure allowed
the theft of Appellant's property by Milligan . Appellee Gordy had
duty to ensure that all proper procedures and policies are followed.
His failure allowed both Appellees Milligan and Hoisington to commit,
theft of Appellant's property.
Appellant filed a civil lawsuit on January 28, 2009 with all
required unsworn declarations of Chapter 14. After the appropriate
amount of time, Appellant moved for a default judgment, as Appellees
had not answered. Appellant dismissed Linda Richey, tor she had not
been served on date of default filing. After seeking mandamus to compel
trial court to rule on default motion in December 2009, the trial court
entered a default judgment on February 4, 2010, with hearing on damages
set for June 7, 2010. The Appellees after entry of default sought to
file an out-of-time answer and motion to set aside default on June 7,
2010, which the trial court granted.
After denial of mandamus review of this decision, the Appellant
proceeded towards trial by requesting discovery and written interrog
atories of the Appellees through counsel. However when the deadline
to respond to interrogatories approached, the Appellees filed a motion
to dismiss alleging failure to exhaust administrative remedies.
Appellant filed a response and the trial court had never ruled upon
the motion.
Appellant sought several times for a pre-trial hearing for all
the pending motions filed by both parties. However, the trial court
refused to set a hearing date. Appellant sought mandamus relief to
compel trial court action, which the appellate court denied. Soon
after the trial court entered its Order of Dismissal, after b\ years
of proceedings in this case.
ISSUE NO.l FOR REVIEW
DOES RULES OF CIVIL PROCEDURE CONTROL OR DOES CIVIL PRACTICE
AND REMEDIES CODE REGRADING DEFAULT JUDGMENTS AND NOTICES?
TRIAL COURT FINDING :
The trial court determined that Section 39.01 of the Texas Civil
Practice and Remedies Code controlled in civil action reqrading default
judgments and notices thereof, instead of the Texas Rules of Civil
Procedure.
STANDARD OF REVIEW :
The Court of Appeals reviews questions of law de noro. See
BROWN v VILLEGAS , 202 S .W .3d 803,805 (Tex .App .-San Antonio 2006).
ARGUMENT :
In 1963 , Texas began a Statutory Revision Proqram under the
Texas Legislative Council as directed and authorized by Texas
Government Code § 323 .00 7 (formerly Vernons Ann .Civ.St. Art. 54295-1).
Section 323 .007 provides :
(a) the council shall plan and execute a permanent statutory revision
program for the systematic and continuous study of the statutes of
this State and for the formal revision of statutes on a topical or
code basis. The purpose of the program is to clarify and simplify the
statutes and to make the statutes more accessible, understandable
and useable.
(b) When revisinq a statute the council may not alter the sense , meaning
or effect of the statute .
(Vernons 2008)
The Civil Practice and Remedies Code was enacted by ACTS 1985,
69th Leg., Ch.9 59, effective September 1, 1985, with many statutes
codified from Vernon 's Ann. Civ. Statutes .
However, in 1939, the 46th Texas Legislature enacted article 1731a
to the Vernon's Ann. Civil Statutes, titled 'Rules of Civil Procedure"
(now Texas Government Code § 22 .004) . By enacting this statute, the
Legislature relinquished the rule making power to the Supreme Court.
r-
Se e: BAR ASS 'N OF DALLAS v HEXTER TITLE & ABSTRACT CO . , 175 S .W .2d
108 (Tex .Civ .App .-Ft . Worth 1943).
Government Code § 22.004 prbtvides , in relevant parts :
(a) The Supreme Court has full rulemaking power in the practice and
procedure in civil actions, except that its rules may not abridge,
enlarge, or modify the substantive rights of a litigant.
(c) So that the Supreme Court has full rulemaking power in civil actions,
a rule adopted by the Supreme Court repeals all conflicting laws and
parts of laws governing practice and procedure in civil actions , but
substantive law is not repealed.
(Vernons 2004) (emphas is added)
Under Vernon 's Ann .Civ.St. art 173 1a , which gave Supreme Court
rulemaking powers , Supreme Court was invested witrl complete authority
to prescribe all Rules of procedure in all civil actions , and it was
intended that all statutes relating to civil procedure should be
inoperative on and after September 1, 1941, includinq those passed
at the same session on Legislature. GARRETT v MERCANTILE NAT . BANK
OF DALLAS , 168 S .W .2d 6 36 (Tex . 1943 )( emphas is added).
By virtue of the Legislature's deleqation to the Supreme Court
of rulemakinq authority for practice and procedure in civil cases,
the rules of civil and appellate procedure have the force and effect
of statutory provisions , MO .PAC .R -R • Co . v CROSS . 501 S .W .2d 868 8 72
(Tex. 19 73) . and the Court of Appeals must observe and follow the
rules and has no authority to deviate from them . N .N . v INSTITUTE FOR
REHABILITATION AND RESEARCH , 234 S .W .3d 1 (Tex App .-Houston [ Is t Dist]
2006) . This authority has never been taken back by the Legislature .
Since 1941 , as former Vernon's Ann.Civ.St. art 2154, now Rule
239 of Rules of Civil Procedure , there has been established procedure
for taking a Judgment by Default :
'Upon such call of the docket , or at anytime after a defendant is
required to answer , the plaintiff may in term time take judgment by
default against sucji defendant if he has not previously filed an answer ,
and provided that the return of service shall have been on file with
the clerk for the lenqth of time required by Rule 10 7."
• 6"
(West 2 014 )
Yet, despite relinquishing all rulemaking power and authority
to the Supreme Court for all civil action practice and procedure, the
70th Legislature in ACTS 1987, Ch. 167 §3. 09(a), eff. September 1,
1987, enacted Section 39.01 of the Civil Practice and Remedies Code,
which provides:
"Notice of intent to. take default judqment aqainst the state, a
state aaenqy, or a partv in a civil case for which Chapter 104
authorizes representation by the attorney general shall be mailed
to the attorney generaloat the attorney general' s office in
Austin, Texas, by United States Postal Service Certified Mail,
Return Receipt Requested, not later than the 10th day before
the entry of the default judgment."
(Vernons 2008)
Section 39.01 is in conflict with Rule 239, not to mention
§ 39.01 is a pratice and procedural action that is under authority
of the Supreme Court. Section 39.01 was not enacted by the Supreme
Court, who has the authority to enact such procedural rules. However,
the Supreme Court to ensure their rule-making authority in practice
and procedure in all civil cases, implemented Rule 819, that states:
" In case of inconsistency between provisions of these rules and any
statutory procedure not specifically listed as repealed,
these rules shall apply. "
(West 2 014 )"( emphas is added)
Furthermore, Rule 2 clearly states that the Rules of Civil
Procedure is controlling:
"These rules shall govern the procedure in the justice,
county, and district courts of the State of Tejas in
all actions of a civil nature, with such exceptions as may be
hereinafter stated. " .
(West 2 014 ) (emphasis added)
Therefore, pursuant to the stablished Rules and Statutes, a
finding that the Supreme Court has exclusive rulemaking authority
for all practice and procedure in all civil actions. Such finding
would invalidate § 39.01 since that is a procedure in civil action,
meaning that the Rules of Civil Procedure control.
Such a findinq would also weiqh heavily upon the issue raised
later in this brief reqarding Chapter 14 of the Civil Practice and
Remedies Code.
The Appellant urges the Court of Appeals to make such a finding
that the Supreme Court has exclusive rulemaking authority in all
practice and procedure for all civil actions.
is filed by the inmate."
Sec. 14.002 (Vernons 2002)'
Courts have stated that various components of Chapter 14 are
neutral procedural requirements, THOMAS v WICHITA GENERAL HOP., 952
S.W.2d 936 (Tex.App.-Ft-Worth 1997), or special procedural rules.
GARRETT v WILLIAMS, 250 S.W.3d 154 (Tex.App.-Ft-Worth 2008). The legis
lative intent behind the statute governing procedural requirements for
civil lawsuits filed by inmates is to improve judicial efficiency with
tailored, nonpunitive procedural rules applied to all inmate suits
in which an affidavit of indigence is filed. GROSS v CARROLL, 339S.W.3d
718 (Tex.App.-Houston [1st Dist] 2011)(emphasis added).
Chapter 14 is designed to assist the court in making determination
that the legislature has called upon it to make; thus it is an essent
ial part of the process which courts review inmate litigation. See
H1CKSON, 926 S.W.2d at 399. The Legislature by enacting Chapter 14
was to govern the practice and procedure that the courts use when the
plaintiff is an incarcerated person. Yet these "special procedural
rules" enacted by Legislature was not within their authority - as the
Legislature gave that authority up in 1939 and never restored that
authority.
Appellant has presented in Issue No.l the supporting arguments
that show that the Legislature gave up its rulemaking authority to the
SUpreme Court for all practice and procedure in all civil actions.
See Tex. Gov't. Code § 22.004(a) and (c); BAR ASS'N OF DALLAS, 175 S.W.2d
108; GARRETT , 168 S .W .2d 636 ; MO. PAC. R.R. CO., 501 S .W .2d at 872 .
The argument that such case cites are out-dated, regardless of
the year of decision, if it is still controlling it is still precedent.
See :REED v BUCK, 370 S.W.2d 867,870-71 (Tex. 1963); PERAZA v STATE, 2014 TEX.APP.Lexis
13915 (Tex.App.-Houston [1st Dist] 2014.
FN 1: Section 14.002 was amended in 2012, to include appellate courts, Supreme Court
or Court of Criminal Appeals.
-/7-
However, the Legislature in order to immediately enact Chapter 14
created an alleged issues of inmate litigation that was a "so-called"
emergency and an alleged imperative public necessity, to bypass
procedural and constitutional rules. Yet, prior to Chapter 14, the
courts had in place Rules that allowed them to dismiss a civil action
that is frivolous or malicious. See Tex.Civ.Prac. &Rem. Code §13.001
(prior to 1995); BIRDO v SCHWARTZER, 883 S.W.2d 386 (Tex.App.-Waco 1994);
SMITH v STEVENS, 822 S.W.2d 152 (Tex.App.-Houston [1st Dist] 1991) .
What Legislature did oy enacting Chapter 14 was to make it more
difficult for prisoners to file civil actions. Chapter 14 places
additional steps for prisoners that a plaintiff onthe outside does not
have to comply with, but their actions is just as frivolous. Further,
they can also file under indigence. Chapter 14 violates Equal Prtotection
Clause and discriminates against prisoners. Why, because the Courts
were handling such issues of prisoner litigation just fine, there were
practices, procedures and rules in place for the Courts to determine
such alleged problems the Legislature created. There are just as many-
frivolous and malicious lawsuits being filed by "tree-world" people
as prisoners.
The Legislature seemed to forget that this Country's government
was created on the basis of checks & balances. Prison inmates have no
recourse to challenge prison regulations or actions by prison officials
other than challenge it in courts. Yes, there is administrative
remedies through a so-called greivance process, but thats akin to a
kangaroo court on a sports team, which the kangaroo court is more
effective than prison grievance process. See SUNSET ADVISORY COMMISSION
FINAL REPORT, pg. 13 (July 2013).
n-
Since the Legislature never reacquired the rulemaking authority
for practice and procedure in civil actions that it gave up in 1939,
the enactment of Chapter 14 is unlawful, as only the Supreme Court of
Texas has that authority. As a Court of Appeals, it must observe and
follow the rules and has no authority to deviate from them, the Rules
of the only auhtority to create and enact practice and procedural
actions, the Supreme Court of Texas is that auhtority.
Therefore, Appellant contends the Court of Appeals must find that
Chapter 14 was unlawfully enacted requiring reversal and remand of
this matter, for the Legislature lacked the authority to enact such
statutes contained in Chapter 14.
/*•
ISSUE NO. 4 FOR REVIEW
DID THE TRIAL COURT ABUSE ITS DISCRETION IN DISMISSING SUIT UNDER
CHAPTER 14 AFTER 5\ YEARS, A DEFAULT JUDGMENT AND VARIOS PLEADINGS?
TRIAL COURT RULING-:
The trial court dismissed the suit, finding that Morris failed to
file an affidavit or unsworn declaration relating to previous filings
under Chapter 14, Section 14.004.
STANDARD OF REVIEW
The Court of Appeals reviews the dismiss inq of a case for abuse
of discretion. HICKSON v MOYA, 926 S-W . 2d 39 7 (Tex. Ap p.-Waco 1996 ). The
test for abuse of discretion is whether the trial court acted without
reference to any guiding rules and principles, or, alternatively,
whether the trial court's actions were arbitrary or unreasonable
based on the circumstances of the individual case. DOWNER v AQUAMARINE
OPERATORS, INC. , 701 S.W.2d 238 , 241-42 (Tex. 1985).
ARGUMENT
The Texas Civil Practice and Remedies Code, Section 14.004 states:
"(a)An inmate who files an affidavit or unsworn declaration of
inability to pay cost shall file a separate affidavit or
declaration:
(1)identifying each action, other than an action under the
Family Code, previous brought by the person and in which the
person was not represented by an attorney, without regard to
whether the person was an inmate at the time the action was brought;
and
(2 )describinq each action tha was brought by:
(A)statinq the operative facts for which relief was souqht;
(B)listinq the case nane, cause number, and the court in which
the action was brouqht;
(C) identifying each party named in the action: and
(D)statinq the result of the action, inclndinq whether the action
or a claim that was a basis for the action was dismissed as
frivolous or malicious under Section 13.001 or Section 14-003
or otherwise-
(Vernons 2012)
The purpose of Section 14.004 is to assist the trial court in
determining whether a suit is malicious or frivolous under § 14.003.
xo
HICKSON, 926S.W.2dat 399. In BELL v TDCJ-ID, 962, S .W .2d 156 (Tex.App.-
Houston [14th Dist] 1998), the court found the purpose of section
14.004 was to prevent constant, duplicative, and frivolous inmate
litigation. Idatl58; NABELEK v GARRETT, 94 S .W.3d 648 ,649 (Tex .App .-
Houston [14th Dist] 2002) .
Section 14.004 merely imposes a neutral procedural requirement
on pro se inmates who file a civil claim in state court to enable the
trial court to discern whether the case is frivolous and the work of
a nuisance litigation. The statute does not mandate that the court
dismiss an inmate's claim it the affidavit or unsworn declaration is
not filed, nor does it authorize a court to refuse to consider merits
of a valid claim. THOMAS v WICHITA GENERAL HOSP• , 952 S.W.2d 936 (Tex.
App.-Ft.Worth 1997) ; see also THOMPSON v SILVAS, 2003 WL 22254950 (Tex.
App.-Houston [1stDist] 2003).
Tne trial court in its Order of Dismissal stated the reason for
dismissal was failure to file an affidavit or unsworn declaration
pursuant to Chapter 14 relating to previous filings. However, the
Clerk's Records show such a Declaration was filed with the original
suit.(CR 11). The Declaration provides all the necessary information
required in Section 14.004.
The court was sufficiently able to determine that the suit was
not substantially similiar to one previously filed, c.f. BELL, 962
S.W.2datl58; WHITE v STATE, 37 S-W.3d 562-563-64 (Tex.App.-Beaumont
2001) .
Notwithstanding, the trial courts determination, Appellant
contends that such determination by the trial court after 5\ years of
litigation that included a Default Judyment, setting aside default
judgment, motion to compel discovery and other various pleadings was
an abuse of its discretion. Even the Appellees filed a motion to
•an
dismiss citing failure to exhaust administrative remedies, however
like most all of the pleadings filed, the trial court failed to rule
upon them in a timely manner. To this fact, the Appellant had filed
several writ of mandamus's to compel trial court action, the last one
to set a pre-trial hearing on all the unruled upon motions and pleadings
The statute only provides "a court may dismiss a claim, either
before or after service of process..." See Tex.Civ.PRAC & REM. Code §
14.003(a). However, the statute does not provide a length of time
after service for determination. Appellant, though, finds it hard to
believe, Legislature intended for a trial court to wait b\ years after
service of process, not to mention the entry of default judgment
against the Appellees by the same trial court, to dismiss a case.
That reasoning is contrary to the Legislature's intent of enacting
Chapter 14. See SULLIVAN v OWENS, 2011 WL 2409311 (Tex.App.-Eastland
2011)(The Legislature enacted Civil Practice & Remedies Code sections
governing prison inmate litigation to control the flood of frivolous
lawsuits being filed in state courts by prison inmates, as these suits
consume many valuable judicial resources with little offsetting
benefits); LEACHMAN v DRETKE, 261 S.W.3d 297 (Tex.App.-Ft.Worth 2008)
(same).
Furthermore, the Legislature enacted Section 14.012, for the trial
courts to use should there be any issues. It could very easily asked
inmate for more details regarding any affidavit or declaration before
making a determination. It is interesting that the Federal Courts, if
they have questions, will send inmates a questionaire before deter
mining whether to dismiss or not. It is clear, Legislature intended
state trial courts to develop similiar procedure, to ensure justice.
The Appellant filed an unsworn declaration that met the require-
•21-
ments of Section 14.004. The Court could determine that the parties
of the only previous suit were different and the facts are not similiar.
While the Appellate Courts have allowed trial courts entitlement to
assume facts, it should also encourage common sense when making
decisions, as courts do not allow litigants or jurors to assume facts
when they decide or present evidence for determination. The declaration
filed by Appellant clearly shows there are no similiar facts nor parties
of the previously filed suit compared to the instant case.
Appellant contends the trial court's dismissal under the failure
to file an affidavit or unsworn declaration pursuant to Section 14.004
was improper, thus an abuse of its discretion warranting reversal of
dismissal and remand back to trial court for further proceedings
towards a trial on merits or settlement if possible.
•11
PRAYER
WHEREFORE , PREMISES CONSIDERED , the Appellant Robert C . Morris ,
prays this Honorable Court finds merit in issues presented and
Orders this matter reversed and remanded to the trial court for
further proceedings, in the interest of justice.
Respectfully Submitted,
;rt C . Morris
Appellant Pro Se
TDCJ-ID # 1311083
Smith Unit
1313 CR 19
Lamesa , Texas 79331
CERTIFICATE OF SERVICE
I, Robert C. Morris, declare under penalty of perjury/ that
the foregoing is true and correct, and further, certify that a true
and correct copy has been served upon Appellee's through counsel
Patrick Brezik, Asst. Attorney General, PO Box 12548, Austin, Texas
78711-2548, by placing in the Smith Unit/TDCJ Prison Mail System on
ft fir, I
-t*
this the /S^ day of Maroh , 20 15 .
C . M o rr is
TDCJ-ID # 131108 3
DOB : 11/01/1971
• aM
CERTIFICATE OF COMPLIANCE
1, Robert C. Morris, declare under penalty of perjury, that the
foregoing Appellant's Pro Se Appeal Brief meets the requirements of
page length pursuant to Rule 9.4(1)(B) of the Texas Rules of Appellate
Procedure .
This brief is 25 pages, double-spaced typewritten with 10 CPI
spacing in 10 pt. Courier typeface.
Signed and Executed on this the 15th day of April, 2015
:rt C. Morris
TDCJ-ID # 1311083
Smith Unit, Dawson County
IN THE
TWELFTH COURT OF APPEALS
TYLER, TEXAS
NO. 12-14-00332-CV
ROBERT C. MORRIS
APPELLANT
VS.
SHERR1 MILLIGAN, ET AL,
APPELLEES
ON APPEAL FROM THE,. 349TH JUDICIAL DISTRICT COURT OF
ANDERSON COUNTY, TEXAS, TRIAL CAUSE NO. 349-6270
APPENDIX
ROBERT C. MORRIS
TDCJ-ID # 1311083
SMITH UNIT
1313 CR 19
LAMESA, TEXAS 79331
TABLE OF CONTENTS
RETURNED SERVICE PROCESS ON SHERRI MILLIGAN 1
RETURNEED SERVICE PROCESS ON BRYAN GORDY 3
RETURNED SERVICE PROCESS ON CHRISTY HOISINGTON.. 5
RETURN SERVICE PROCESS ON LINDA R1CHEY 7
APPENDIX NO. 1
RETURN SERVICE PROCESS
ON SHERRI MILLIGAN
zn
? , at Y 2 2-
o' clock /? .M.
EXECUTED at 7-^?c J~ ;3<£ ^
within the County of /Pss/p&sls>7 , by delivering to the within named
f/f£/l/tj At/£/..* 6 S}**' _, in person, a true copy of this
citation together with the accompanying copy of the petition, having
first attached such copy of such petition to such copy of citation and
endorsed on such copy of citation the date of delivery.
NOT EXECUTED, the diligence used to execute being
, for the following reason ,
_, THE Defendant may be found
(T)t>
Fees for serving this citation £r
TO CERTIFY WHICH WITNESS MY HAND OFFICIALLY.
SHERIFF
C©NS^BLE
# /V0/5>J- -.fg^ County, Texas
BY /&Z4& J*J^. 7-^£?>-~ _Deputy.
AUTHORIZED PERSON
AFFIANT
On this day, ______^_ known to me to be the
person whose signature appears on the foregoing return, personally
appeared. After being by me duly sworn, he/she stated that this
citation was executed by him/her in the exact manner recited on the
return.
SWORN TO AND SUBSCRIBED BEFORE ME on this the day of
NOTARY PUBLIC
APPENDIX NO. 2
RETURN SERVICE PROCESS
ON BRYAN GORDY
?-lf CITATION - PERSONAL SERVICl RETURN
THE STATE OF TEXAS
TO BRYAN GORDY, ASSISTANT WARDEN
BETO UNIT OF TDCJ-ID "" '; 'J '• '•' ZZ
TENNESSEE COLONY, TX
Defendant, in the hereinafter styled and numbered cause:
YOU ARE HEREBY COMMANDED to appear before the 349TH Judicial
District Court of Anderson County, Texas, the courthouse being located
at 500 North Church Street in the CITY OF PALESTINE, ANDERSON COUNTY,
TEXAS, by filing a written answer to the PLAINTIFF'S ORIGINAL PETITION
OF CIVIL COMPLAINT at or before 10:00 o'clock a.m. on the Monday next
after the expiration of 20 days after the date of service hereof, a
copy of which accompanies this citation in Cause Numbered 6270, styled
ROBERT C MORRIS PLAINTIFF,
vs.
SHERRI MILLIGAN, et al , DEFENDANT,
filed in said court on the 29th day of January, 2009.
YOU HAVE BEEN SUED. You may employ an attorney. If you or your
attorney do not file a written answer with the District Clerk who
issued this Citation by 10:00 A.M. on the Monday next following the
expiration of twenty (20) days after you were served this citation and
petition, a default judgement may be taken against you.
ISSUED AND GIVEN UNDER MY HAND AND SEAL of said court at office,
this the 6th day of February, 2009.
JANICE STAPLES
Distant Clerk o.f- ANDERSON COUNTY, TEXAS
BV / ,(-X , / •. v • Deputy
500 NC#TH CHURCH ST
ISSUED AT REQUEST OF: PALESTINE, TEXAS, 758 01
ROBERT C. MORRIS #1311083
P.O. BOX 12 8
TENNESSEE COLONY, TX 75880
BAR NO.
•I »•• •
rn
en
VjD
CO o
OFFICER/AUTHORIZED PERSON RETURN
CAME to hand on the £ day of J ,±c? , at y z z.
o'clock p .M.
EXECUTED at 7~<£> C T /$''/-^
within the County of /}a"/>J-A Sj^ at fr 2y o'clock y/.M.
ON THE /& day of p f j3 .3^*7 , by delivering to the within named
3_ Ay#a; &*A&/ , in person, a true copy of this
citation together' with the accompanying copy of the petition, having
first attached such copy of such petition to such copy of citation and
endorsed on such copy of citation the date of delivery.
NOT EXECUTED, the diligence used to execute being
, for the following reason ,
, THE Defendant may be found
Fees for serving this citation ¥s~
TO CERTIFY WHICH WITNESS MY HAND OFFICIALLY.
./..
^>- 6 ~7^wy ^ c/t- SHERIFF
GGNBHffiLE
/j'/UP f /? S V County, Texas
BY z&fr"^-^. Deputy.
AUTHORIZED PERSON
AFFIANT
On this day, known to me to be the
person whose signature appears on the foregoing return, personally
appeared. After being by me duly sworn, he/she stated that this
citation was executed by him/her in the exact manner recited on the
return.
SWORN TO AND SUBSCRIBED BEFORE ME on this the day of
NOTARY PUBLIC
APPENDIX NO. 3
RETURN SERVICE PROCESS
ON CHRISTY HOISINGTON
-^
"CITATION PERSONAL SERVIC
RETURN
THE STATE OF TEXAS
TO CHRISTY HOISINGTON, UNIT GREIVANCE INVESTIGATOR. ;•-.. ._
BETO UNIT OF TDCJ-ID "' _';-' ~- ..,•
TENNESSEE COLONY, TEXAS
Defendant, in the hereinafter styled and numbered cause:
YOU ARE HEREBY COMMANDED to appear before the 349TH Judicial
District Court of Anderson County, Texas, the courthouse being located
at 500 North Church Street in the CITY OF PALESTINE, ANDERSON COUNTY,
TEXAS, by filing a written answer to the PLAINTIFF'S ORIGINAL PETITION
OF CIVIL COMPLAINT at or before 10:00 o'clock a.m. on the Monday next
after the expiration of 20 days after the date of service hereof, a
copy of which accompanies this citation in Cause Numbered 6270, styled
ROBERT C. MORRIS PLAINTIFF,
vs .
SHERRI MILLIGAN, et al DEFENDANT,
filed in said court on the 29th day of January, 2009
YOU HAVE BEEN SUED. You may employ an attorney. If you or your
attorney do not file a written answer with the District Clerk who
issued this Citation by 10:00 A.M. on the Monday next following the
expiration of twenty (20) days after you were served this citation and
petition, a default judgement may be taken against you.
ISSUED AND GIVEN UNDER MY HAND AND SEAL of said court at office,
this the 6th day of February, 2009.
JANICE STAPLES
District Clerk7of ANDERS0N COUNTY, TEXAS
Deputy
BYi f
500
'LtL-fL-L
NORTH CHURCH ST
CZ H"^
ISSUED AT REQUEST OF: PALESTINE, TEXAS, 758 01
ROBERT C. MORRIS #1311083
P.O. BOX 12 8
TENNESSEE COLONY, TX 75880
BAR NO.
~n
m
CO
9?
1X5
OFFICER/AUTHORIZED PERSON RETURN
CAME to hand on the & day of f t=. c., r# xs , in person, a true copy of this
citationtogether with the accompanying copy of the petition, having
first attached such copy of such petition to such copy of citation and
endorsed on such copy of citation the date of delivery.
NOT EXECUTED, the diligence used to execute being
, for the following reason ,
, THE Defendant may be found
Fees for serving this citation J^S'
TO CERTIFY WHICH WITNESS MY HAND OFFICIALLY.
SHERIFF
CQ$*S?KBLE
Xf st.'ps'/l S o s^ County, Texas
BY ^ r>.^r-^sr->- Deputy.
AUTHORIZED PERSON
AFFIANT
On this day, , known to me to be the
person whose signature appears on the foregoing return, personally
appeared. After being by me duly sworn, he/she stated that this
citation was executed by him/her in the exact manner recited on the
return.
SWORN TO AND SUBSCRIBED BEFORE ME on this the day of
NOTARY PUBLIC
APPENDIX NO. 4
RETURN SERVICE PROCESS
ON LINDA RICHEY
STATION PERSONAL SERVICI
RETURN
THE STATE OF TEXAS
h KtC'JHQ
TO LINDA RICHEY
901 NORMAL PARK, SUITE 101
HUNTSVILLE, TX 7 73 2 0
0Sh" Mfrff
Defendant, in the hereinafter styled and nuiri .be^illl^
YOU ARE HEREBY COMMANDED to appe ar before the 349TH Judicial
District Court of Anderson County, Texas , the courthouse being located
at 500 North Church Street in the CITY OF PALESTINE, ANDERSON COUNTY,
TEXAS, by filing a written answer to the PLAINTIFF'S ORIGINAL PETITION
OF CIVIL COMPLAINT at clock a.m. on the Monday next
or before 10:00 o"
after the expiration of 2 0 days after the date of service hereof, a
copy of which accompanies this citation in Cause Numbered 6270, styled
ROBERT C. MORRIS , PLAINTIFF,
vs .
SHERRI MILLIGAN, et al , DEFENDANT,
filed in said court on the 29th day of January, 2009.
YOU HAVE BEEN SUED. You may employ an attorney. If you or your
attorney do not file a written answer with the District Clerk who
issued this Citation by 10:00 A.M. on the Monday next following the
expiration of twenty (20) days after you were served this citation and
petition, a default judgement may be taken against you.
ISSUED AND GIVEN UNDER MY HAND AND SEAL of said court at office,
this the 30th day of March, 2009.
JANICE STAPLES
Dist t Clerk, o TEXAS
y%^/Dep
Deputy
m CHURCH
ISSUED AT REQUEST OF: PALESTINE, TEXAS, 75801
ROBERT C. MORRIS
#1311083 - MICHAEL UNIT, P.O. BOX 128
TENNESSEE COLONY, TX 7 5880
BAR NO.
5Lioo\
OFFICER/AUTHORIZED PERSON RETURN
CAME to hand on the /J[ day of /VyA; / 0f , at / '.»*
o'clock