IN THE TWELFTH COURT OF APPEALS
FOR THE STATE OF TKXRS~ FILED IN COURT OF APPEALS n: r:
12th Court r-f Appeals District
KENNETH CRISSUP
CAUSE NO am-w> vs.
WILLIAM STEPHENS, ET AL
ORAL ARGUEMENT REQQESTED LIST OF PARTIES
DEFENDANTS
1. Todd A. Foxworth-Last Known Address,Michaels Unit
2664 FM 2054,Tennessee Colony Tx.75886-Counsel for defendant
Attorney General State of Texas
2 Pamela Kirkpatrick C/0 Michaels Unit,2664 FM 2054
Tennessee Colony Tx.75886-Counsel for defendant
3 Eboni G. Brown C/O Michaels Unit- 2664 FM 2054 ,Tennessee
Colony Tx.75886-Counsel for defendant,Attorney General
State of Texas
4. Dr.Gary Wright C/O Michaels Unit,2664 FM 2054
Tennessee Colony Tx.75886-Counsel for defendant •
5 Ms. Lisa Garrett/Property Offiecer-C/0 Michaels Unit
6. William Stephens-Director ,Texas department of criminal Justice
PO BOX 99,Huntsville Tx 77342-Counsel for defendant
PLAINTIFF
!. Kenneth Crissup-TDCJ #1258732 C/O Michaels Unit
2664 FM 2054 Tennessee Colony Tx 75885
la! TABLE OF CONTENTS
1. • PARTIES PG (a)
2. TABLE OF CONTENTS PG (b)
3. INDEX OF AUTHORITIES PG (c)
4. STATEMENT OF CASE PG ((d 1-2)
5. STATEMENT REGARDING ORAL ARGUEMENT PG (e)
6. _ ISSUES PRESENTED PG (fl-2) 7. STATEMENT OF FACTS PG 1-2
8. SUMMARY OF ARGUEMENT PG ( h 1-3
9. ARGUEMENT/BRIEF PG 1-8
10 . PRAYER PG 1.
11. CERTIFICATE. OF SERVICE PG 1
(b] INDEX OF AUTHORITIES
1. BOHANNON V. TEXAS BOARD OF CRIMINAL JSUTICE
942 S.W.2d.113 ( Tex .App .Austin 1997 ) PG 1,2
2. IN RE WILSON 932 S.W.2d.263 ( Tex.App.El PAso 1996 )...PG 2
3. JACKSON V. LYNAUGH 796 S.W. 2d. 705 ( Tex.App. 1990.,)...PG 1
4. KLEVIN V. TEXAS DEPARTMENT OF CRIMINAL JUSTICE
335 S.W.3d.112 ( Tex.App. Texarkana 2000 ) PG 1,4
5. LEON SPRINGS GAS CO. V. REST.EQUIP. LEASING CO.
961 S.W.2d 574 ( Tex. App. San Antonio 1997) PG 2
6. RIVER V. QUARTERMAN 505 F.3d.344 ( 5th Cir.2007 ) PG 6
7. SAWYER V. TEXAS DEPARTMENT OF CRIMINAL JUSTICE
983 S.W.2d.310 ( Tex.App.-Houston 1st District 1998 )..PG 2
8. ZIMS V. SATE OF TEXAS 55 S.W.3d.379 (Tex.App.1997 ) PG 8
INDEX OF STATUTES ,CODES /PROCEDURES
1. GOVERNMENT CODE §501.007 PG 1,2
2. TEXAS CIVIL PRACTICE & REMEDIES CODE §14.004 PG^3-76,;
3. TEXAS CIVIL PRACTICE & REMEDIES CODE §14.005(b) PG 3,6,
4. TEXAS RULES CIVIL PROCEDURE 296 PG 6
5. TEXAS CIVIL PRACTICE & REMEDIES CODE §14 .005 (1) ,(2) ....PG 7,8
6. TEXAS CIVIL PRACTICE & REMEDIES CODE §14.005(c) PG 7,8
tc) STATEMENT OF CASE''
Appellant filed grievances according to Texas Department of Criminal Justice policy.Grievances were returned on December25,2012.
On October 16,2012 ,Appellant mailed to Travis County,427th Judicial
District a 'Writ of Mandamus',Seeking compliance with contract
terms and policies as outlined in TDCJ inmate property policies. The writ sought both compliance with policies and injunctive relief. In a seperate cause of action ,Appellant , mailed to Anderson
County a small claims action seeking monetary damages for loss of property and breach of contract.To date ,Anderson county district court has failed to assign a case number. On November 19,2012,The
Third Court of Appeals was forwarded erroneously ,Appellants,
Writ of Mandamus.and assigne cause No. 03-12-00761-CV.An affidavit
of indigency and the required Trust fund statement was forwarded to the'district court ,but was lost due to clerical error,when the
Clerk ,erroneaously forwarded the Filing to the Appellate Court.
On May 21,2013, the Appellate Court corrected the mistake and returned the case to the 200th District Court cause no. D-l-GN-
001702.
On July 15,2013,Defendants filed it's Original Answer with
a motion to transfer Venue.
On June 3,2013 Apellant providedthe Court with a second
affidavit of indigency and Trust Statement. Additionally On May
31,2013 ,Appellant, frl^d'^ltis'" amended complaint.On July 24,201^ /Appellant ,filed an inmate declaration pursuant §14.004 Civ.Prac. & Rem.Code.
On July 15,2013 ,Appellant,filed a motion for emergency
Injunction. On July 22,2103 ,Defendants filed a Motion to dismiss. Based
on infirmities regarding compliance with §14 Ciiv.Prac.Rem.Code.
On July 31,2013,Appellant ,filed a response to defendants
motion to dismiss.
On August 7,2013,Appellant filed a motion for temporary
injunction.
On August9,2013,Appellant,filed a response to defendants
answer,objection to defendants motion to transfer venue and a motion
to consolidate the Anderson County small claims action.
On September 17,2013,The Trial Court held a telephonic hearing
in which the Court denied defendants motion to dismiss and Granted
defendants motion to transfer venue.
On November 7,2013 Anderson County assigned cause no.349
7261.
Without hearing,or notice to Appellant,it appeared that the
Trial Court enteredjudgment in favor of defendants.Consequently,
Appellant filed a Notice of Appeal with the Twelfth Court of Appeals
cause no.12-14-00251-CV.Actual judgment was not rendered by the
Trial Court however until October 27,2014.Appellant,prematurely filed a Notice of Appeal.
On November 10,2014 in cause no.12-14-00251-CV,the Court
entered a mandate for the premature appellate filing.
On November 5,2014,Appellant requested the Trial court for the
349th Judicial District issue it's 'Findings of Facts and conclusions
of law' Pursuant to Rule 296 Civil Procedure.
Appellant now files his appeal after actual judgment has
been rendered.
2. STATEMENT REGARDING ORAL ARGUEMENT
Apellant hereby requests oral arguement through a telphonic
hearing.
(e) GROUNDS FOR REVIEW
1. Did the Trial Court abuse it's discretion when it dismissed
Plaintiff's complaint without holding any hearings?
2. Did the Trial Court deny Appellant effective due process
when it dismissed the complaint for failure to comply with
§14.004 & §14.005(b) of the Texas Civil Practice and Remedies Code
,When in fact Plaintiff was in compliance prior to Defendants
Motion to transfer venue from the 200th Judicial District to
the 349th Judicial District being heard on September 17,2013.
The Court Granted defendants motion to transfer venue,but denied
defendants motion to dismiss fro non-compliance with §14.004
& §14.005(b), because the Court was in possession of the appro
priate documents as required by the code.Additionally,Appellant
had supplied the Court with replacement documents that were
lost or misfiled due to the clerical error when the complaint/
Writ of Mandamus was improperly forwarded to the Appellate
Court.
3. Did the Court abuse it's discretion and violate civil procedure
when it dismissed Appellant's complaint and found the claim
to be frivolous or maliciuos when in fact the amended complaint
clearly states a valid claim for violation of due process in
either confiscating or losing Appellants property.,failure to
adhere to contractual obligations in storing Appellants property,
committing a breach of contract,then denying access to due
process when Appellant asserted his contractual rights,and
further violated his due process rights by denying medical
care and ot threatening Appellant with varioous forms of retaliation
1. 4. Has the Trial court denied Appellant meaningful due process by
refusing to issue the requested findings of facts and conclusions
of law pursuant to Rule 296 of the Texas Civil Procedure/
5. Did the Trial Court commit a fundamental error when it determined
incorrectly that Appellant failed to comply with §14.005(b) of the
Texas Civil Practice and Remedies Code,when the original petition
for writ of mandamus was filed on or about October 16,2012 and the
Step 2 Grievances # 2012207384 & 2012201024 were not returned to
Appellant until December 25,2012,thereby invoking a stay Pursuant
to §14.005(c)-Additional Grievances were filed after the initiation
of the lawsuit and were only supportive of the necessity to issue
emergency injunctive relief.
6. Did the Trial Court neglect it's duty and demonstrate judicial,
bias when it refused to schedule any hearings to determine if the
sought aftere injunctive relief should be granted? STATEMENT OF FACTS
Appellant possessed property in accordance with TDCJ policy.Upon
beinq transferred from the Eliis Unit to the Michaels Unit the property
Officer Lisa Garrett wronqfuliy confiscated property belonqinq to
Appellant.Appellant filed step 1 and step 2 grievances in an attempt
to recover the property to no avail.
In a seperate incident,Appellant, left the Micheals Unit on Medical
chain to Galveston.Prior to leaving his property was inventoried^ in
accordance with TDCJ policy.Appellant was given a carbon copy of the
inventory and the original was maintained in TDCJ" custody and control.
Upon return to the Michaels Unit /numerous items were missinq that
were listed on the carbon copy in Appelalnts possession.ten oriqinal
in TDCJ custody had been altered showinq that the items were crossed
out.Alterations to the oriqinal are not permitted after the copy has
been siqned fro.Appellant filed Step 1&2 Grievances -PROP-5 form
used by TDCJ is a contract of bailment that specifies damaqes if the
listed property is not returned or damaqed while in TDCJ custody and
•''control .During the investigation into the missing pronerty, Appellant was threatened/intimidated/embarrassed and prevented from maintaining
his carbon copy in his possession.
As further form of harrassment/medical personnel deprived him
of appropriate care as a form of harrassment for exercising hss rigrits
to redress before the Court.Dr. Gary Wright made specific comments
that indicated his actions were a direct result of Appellants /filing
lawsuits .
Appellant filed a civil action in Anderson county Small Claims
Court seeking damages for the loss of hsi property.the Court never
assigned a cause number or acknowledged the mailing of the suit.
As the Court is aware,the Michaels Unit has a history of the mailroom
1. disposing of inmate mail,especially mail being sent to Anderson County.
Appellant also filed an Original Petition for Mandamus relief in
Travis County,seeking numerous Orders including adherence to TDCJ
policy regarding claims placed by inmates fro property issues.
The Travis Court transferred Appellants case to Anderson County,
upon Granting a motion to transfer venue by the defendants.The
Travis Court also denied defendnats motion to dismiss for non-compliance
with Texas Civil Practice & Remedies Code §14.004 due to the confusion
created by the District Clerk when she forwarded Appellants initial
mandamus filing to the Appellate Court.
The Anderson District Court has been reluctant to schedule
any hearings regarding Appellants complaints,nor has it conducted
any evidentiary hearings to determine facts in question.tne Court
has further denied Appellant the courtesy of supplying him with
its findings of facts and conclusions of law as requested per Tex.Civ.
Proc.Ruel 296 in order for Appelaint to understand how the Court
has derived at such an erroneous ruling and dismissed his case. SUMMARY OF CASE
This case is clearly a comedy of errors,some falls on the
Appellant,some on the Clerk.Most could have been simply corrected
if the Appellant was not in custody.Appellant admits that he did
not fully comply with §14.004 Civ.Prac.&Rem.Code upon filing his
original writ of mandamus.He did however properly comply with
the other procedures mandated by Chapter 14 Civ.Prac.&Rem.Code.
When Appellant became aware of the infirmity in his filing,he promptly
corrected his error and forwarded the appropriate declaration to the
Court.Additionally,he replaced the lost Affidavit of indigency and
Trust statement.
All infirmities were corrected prior to the 200th Judicial
District conducting it's hearing to decided a transfer of venue.At that
time defendants sought to have the complaint/Writ of Mandamus dismissed
for non-compliance with Chapter 14.The Court rejected this contention
because all required filings were entered into the record prior to
the hearing.The Court did however,determine that due to the mixed
issues thta the case was a borderline issue of mandamus relief versus
a tort cliam.
Defendants never renewed their previous Motion to Dismiss
once venue was transferred.Since all appropriate filings were in place
prior to Anderson County obtaining jurisdiction,the Court lacked
a factual and legal basisis to determine thatAppellant was not in
compliance with Chapter 14,because the record so reflects that he
was in compliance.
The issue before the Court is simple,once the Court rejects a
motion to dismiss and the infirmities claimed had already been corrected
,can a subsequent Court rekindle a previously asserted defense
that had been Judicially denied,without the party reasserting the
1. the defense.
Further,since the infirmities had been corrected promptly,
prior to any hearing being conducted on the defendants motion to
dismiss,cna the defendants show any harm or prejudice due to
Appellants late filing .
The Trial court has erroneously determined that Appellant
was not in compliance with §14.005(b).11 appears the Court is using
the date of the Amended Complaint as the original filing date,rather
the the actual filing date,which was actually filed prematurely,
because Appellant had not recieved Step 2 Grievance answers until
December 25,2012.Due to the Trial Courts ruling to transfer venue
and consider Appellants case more of a cause of action under the
Tort claims laws,Appellant was forced to clarify his cliams through
an amended complaint,however the basis for both the original and
amended complaints rely on contractual law and policy.the only addition
is monetary damages for Due Process retaliation claims and medical
malpractice.Without the benefit of any evidentiary hearing,the Court
may have difficulty understanding the relationship between the clearly
differant types of claims,however,Appellant can substantiate the
correlation of retalitory conduct for his attempting to assert his
contractual rights. BRIEF
GROEND 1.
Appellants original filing seeking mandamus relief,sought
relief by seeking a court order requiring TDCJ to follow its policies
and procedures.as well as mandated government code.Furhter,Appellant
directly requested the terms of the contract of bailment entered into
between TDCJ and Appellant be honored.the issue is a mixed question of law regarding due process. On one hand TDCJ provides a grievance process to submit a claim when TDCJ loses inmates property while it
their custody and control.However,this process is routinely manipulated by TDCJ grievance personnel,to avoid laibility for losses,because
officers are required to reimburse TDCJ for losses. The issue
further relies upon a contract of bailment. Gov.Code §501.007 & PROP-5
form expressly outlines terms and conditions in respect to inmate
possession of personal property and TDCJ'S responsibility for losses incurred while in TDCJ custody and control.By entering into such contract,TDCJ and the state of Texas waive any claim of sovereign immunity.
In KLEVIN V. TEXAS DEPT. CRIMINAL JUSTICE 335 S.W.3d,112(TX.APP-
TEXARKANA 2000) the Court stated " the Texas Supreme Court has express ed doubt concerning ,whether a Trial Court may appropriately dismiss
a suit only because the claims realistic chance of ultimate success
is slight or because it si clear the party cannot prove facts in
support of the claim.JACKSON V. LYNAUGH 796 S.W.2d.705-706-07 (TEX.APP.
1990).Practically speaking,therefore the Trial Court is limited to
determining whether the claim has an arguable basis in law or fact.
BOHANNAN V. TEXAS BOARD CRIMINAL JUSTICE 942 S.W.2d.113,115(TEX.APP.
AUSTIN 1997).Where as here the Trial Court dismisses a claim without
conducting a fact hearing,we are limited to reviewing only whether the claim had an arguable basis in law. SAWYER V. TEXAS DEPARTMENT
1. of Criminal justice 983 S.W.2d.310,311 (Tex.App-Houst.1st dist.1998).
Leon Spring Gas co. V. Rest. Equip, leasing CO 961 S.W.2d. 574,579
(tex.App.-San Anto.1997),Bohannon 942 S.W.2d at 115,In RE Wilson 932
S.W. 2d.263,265 (Tex.App.-El Paso 1996)."
"TDCJ argues that the doctrine of sovereign immunity sheilds it
from liability for negligence claims,except for those claims
where sovereign immunity is specifically waived under Texas Tort
Claims Act.even if TDCJ is correct as we read KLEVENS petition,
he is not claiming that TDCJ is directly or vicariously liable
for the loss of his property.Rather ,he is arguing that it does not
provide meaningful administrative procedures for him to effectuate
his right of recovery under Section §501.007 of the Tex.Gov.Code
and the Constituition of the United States and Texas.KLEVEN is cont
ending that TDCJ is depriving him of his right to due process of
law.this is not the basis on which TDCJ requested the dismissal.
Sovereign immunity does not prevent the assertion of a claim alleg
ing that the State deprived a person of property without due process
of law .Bohannon S.W.2d. @ 116."
As in Klevin,Appellant questioned the integrity of the due process
afforded appellant when he requested reimbursement for the lost and or
wrongfully confiscated propert was not returned to him after being placed
in the custody and control of TDCJ while being transported. GROUND 2.
Appellant incorporates by reference arguements presents in Ground 1.
He further argues that defendants have misrepresented facts of the case
and mislead the trial court by submitting an order of dismissal when it
knew the motion to dismiss had been previously ruled upon and denied.Further
,the trial court incorrectly determined that appellant did not submit
the required declarations pursuant to Tex.Civ.P.& Rem.Code §14.004 &
§ 14.005(b).Appellant did forward an affidavit of indigency and a 6 month trust statement when he filed his original writ of mandamus.
What appellant believes happened was the Clerk,forwarded the writ
of mandamus to the appellate court mistakenly.[ See Cleks record]
In a seperate envelope on the same day appellant mailed the writ
of mandamus,he submitted the required affidavit of indigency and
trust statement pursuant to §14.004.He believes the ,Clerk,at that
time did not know what the affidavit and truat staement was SUBMITTED
FOR,BECAUSE THE ACTUAL WRIT WAS FORWARDED TOT HE APPELLATE COURT
AND APPELLANT HAD NO ACTIVE CAUSE NUMBERS INTHE DISTRICT.
The Clerk infromed appellant that he needed to file an affidavit
of indigency and trust staement.As the correspondence reflects in
the court file,appellant referred to his original filing,but submi tted a second affidavit and statement.
§14.005(b) requires appellant to fiel his claim against TDCJ no Jlater than 31 days after he receives an answer to his Step 2
Grievance.As the record reflects,Step 2 Grievance # 201229024 &
201207384 were not returned to appellant until December 25,2012.
Additional Step 2 Grievance #201295560 was returned November 12,2012,
#2012211655 retyrned decemberl2,2012.Given the various claims sub-
,itted,appellant was required to submit seperate grievances as events occured.even given the earliest date of November 12,2012,appellant
3. was in compliance as the Court of Appeals for the Third District
acknowledges receipt of the forwarded writ of mandamus on November
19,2012 and assigned cause no.03-12-00761-CV.
Appellant did file an amended compalint on May 31,2014.Paragraph
(1) of the compalint states " Plaintiff hereby incorporates all pre
viously filed compalints,writs fro mandamus ,temporary injunctions
as plead and submits the following amendments" by such incorporation,
appellant preserves all originally plead complaints and assertions
as plead,as well as the original filing date of such claims. Tex. R.
Civ.Proc. 63 provides the mechanisim for parties to amend complaints
within 7 days of trial.Appellant was in compliance with Ruel 63 and
is therefore allowed the benefits and preservation of rights when
he filed his 'First Amended Complaint' in a timely manner,as ho trial
date had been set. GROUND 3.
Appellant hereby incorporates all previous paragraphs as plead
and furthere states:
The issues and arguements presented in 'KLEVIN' require the
Court to apply them when considereing allegations presented in appl
ellants original writ of mandamus and his amended complaint and determine
that the trial court abused its discretion when it determined that
appellants complaint was fivolous and without merit,because it presented
an argauble basis in law and fact.Further,there was a substantial prima
facia evidence to support Sonstitutional violations and deviation from
policies,prcedures,Goverment mandated Code and contractual obligations.
5. GROUND 4.
Appellant hereby incorporates by reference arguement presented
in Ground 1-3 and furthere states:
Rule 296 Tex.Civ.Proc. is afforded to litigants in order to
allow insight into a trier of facts [or Judicial decision] determination of an issue of law or fact.For the case at bar, a Due Process violation would occur if the Court found as fact,a matter of fact that is clearly
contradicted by the record.
" The protections afforded by procedural due process includes a fair hearing in accord with fundamental fairness,as Justice Powell expalined due process does not require a full trial on the merits,but a process that " RIVER V. QUARTERMAN 505 F.3d.344 ( 5th Cir. 2007).
The court made determinations that did Appellant did not comply
with Chapter 14 Civ.Prac.& Rem.Code.However,without pointing to any evidence in the record,to substantiate this finding, or conducting
any hearing to obtain evidence to support this finding the Court not only enteres judgment in favor of defendaats,but refuses to show this Court or Appellant how it made such an erroneous finding by refusing to issue a "Findings Of Facts and Conclusions of Law" as requested
pursuant to rule 296. GROUND
Appellant hereby incorporates by reference arguements presented
in Grounds l-'f and further states:
Appellant received return of the Step 2 Grievances on November
12,2012 and december 25,2012 respectively. §14.005(1),(2) requires an
inmate fiel an affidavit and copies of grievances. §14.005(b) requires
an inmate to fiel a claim within 31 days upon receipt of the answer to
a Step 2 Grievance. §14.005 (c) grants an automatic stay of 180 days if
the action is filed before receipt of the Step 2 Grievances.The District
Clerk forwarded Appellants 'Original Petition' in error to the Third
Court of Appeals.On November 30 ,2012,The Court dismissed Appellants
'Original Petition'.Appellant sought review of the decision,and after
litigation,the Court recognized the Clerks error and remanded the
case. On MAy 22,2013,the Duitrict Clerk assigned Cause No.D-l-GN-13-
001702 inthe 200th Judicial District.SEE CLERK RECORD.On July 31,2013
the Court received additional filings as required by § Chapter 14
from Appelalnt.Due to the confusion created by the Clerks error,the Trial
Court excused Appellants delay in filing the required documents pursuant
to § Chapter 14 and denied the motion to dismiss for non-suit . [filed July 22,2013] .On September 17,2013 the Court verbally denied defendnats
motion to dismiss and Granted defendants motion to transfer venue.To
consider otherwise would be a complete lack of Judicial comity and
expediancy,because there would be no need to transfer a case that should
be dismissed as a matter of law.The Judicial screening process would
have required the Court in Travis county to at the least decide if the
case was properly filed before it transferred this burden to another
jurisdiction. GROUND 6.
Appellant incorporates by reference all previous arguements presented in Grounds l-5£ and states further:
Accusations of Judicial Bias are met with a preconceived notion that they are conclusiory when made by an inmate.However,this case speaks for itself.despite the numerous filings requesting 'EMERGENCY INJUNCTIONS' ,NO , Hearings were Held.Without any factual support in the record determinations of non-compliance with §Chapter 14 Civ.Prac.& rem. Code were made, without any regard to the previous rulings by the original court. In ZIMS V. STATE 555 S.W. 3d.378 (TEX.APP. 1977) it states Judicial Biasif any,standing alone does not constitute error,of course , a defendant may challenge erronoeus rulings made bythe Trial Judge as a result of prejudice,but it would be error in ruling rather than prejudice which would give a defendant a right to compalin" When the Court makes erroneaous rulings based only on pleadings by an adverse party,without any factual support in the record,bias is demonstrated.Such is the case at bar. PRAYER
WHEREFORE,PREMISES CONSIDERED,Appellant PRAYS the COURT
REMAND the case for Trial,set aside the Judgment of Dismissal and ORDER immediate Hearings on Appellant Temporary Injunctions,
RESPECTFULLY SUBMI TTED THIS l7\l DAY OF ^\S.^\^Cy 2015.
Kenneth Crissup #1258732
1. CERTIFICATE OF SERVICE
I,Kenneth Crissup,do hereby certify that a true and correct
copy of the following documents were placed in U.S.Mail,First Class
Postage prepaid to the addressee listed below:
Documents
1. NOTICE OF APPEAL
2. INMATE DECLARATION PURSUANT TO §14.004
3. AFFIDAVIT OF INDIGENCY
4. APPELLATE BRIEF
ADDRESSEE
ATTORNEY GENERAL
PO BOX 12548
Austin Tx 78711-2548
Mailed this 29 th Day of January ,2015.