# F|LEDinCOURTOFAPPEALS 12thCourtofAppealsDistrict \L\iXL 

### /CERTEXAS/ 

# CATHY3.LUSK^CMER! IN THE TWELFTH COURT OF APPEALS TYLER , TEXAS

NO. 12-14-003 32-CV

ROBERT C. MORRIS APPELLANT

vs 

### REC'DIf ^LS 12thCourt r . Hstrict



### CATHVS.LUSK,CL

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 79331APPELLANT

COUNSEL:
APPELLE(S)

COUNSEL :

TRIAL JUDGE : IDENTITY OF PARTIES AND COUNSEL

ROBERT C . MORRIS TDCJ-ID # 13 11083 SMITH UNIT 1313 CR 19 LAMESA , TEXAS 7933 1
PRO SE

SHERRI MILLIGAN BRYAN GORDY CHRISTY HOISINGTON
PATRICK BREZIK ASST. ATTORNEY GENERAL PO BOX 12548 AUSTIN, TEXAS 78711-2548

HON. PAM FOSTER-FLETCHER 349TH JUDICIAL DISTRICT COURT 500 N. CHURCH ST. , RM .30 PALESTINE , TEXAS 75801STATEMENT REGARDING ORAL ARGUMENT 

### Appellant at this time waives oral arquments, unless appellee request oral arquments at a later time.

11TABLE 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 PLEADINGS? PRAYER 21/ CERTIFICATE OF SERVICE 3«/ CERTIFICATION 3* APPENDIX ATTACHED SEPARATE

illINDEX 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.2d156 (Tex-App.-Houston[14thDist]1998) BIRDO v SCHWATZER . 18 

### 883S.W.2d386 (Tex.App.-Waco 1994) BROWN v VILLEGAS 5.16 202 S.W.3d 803 (Tex.App.-SanAntonio 2006) CLEMENTS v BARNES 15 

### 822S.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.3d718 (Tex.App.-Houston[1stDist] 2011)' HAMILTON v PECHACEK II 

### 2014 Tex.App.Lexis 3096 (Tex.App.-Ft.Worth2014) 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 

### 2014Tex.App.LEXIS 7903 (Tex.App.-Houston[lstDist]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[14thDist]2002) N.N. vINSTITUTE FOR REHABILITATION AND RESEARCH-. 6 

### 234S.W.3d 1 (Tex.App.-Houston [1stDist] 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 

### 2014Tex.App.LEXIS13915(Tex.App.-Houston[istDistJ2014) 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 [1stDist] 1991) STRACKBEIN v PREWITT 12,13 671 S.W.37 (Tex. 1984) SULLIVAN v OWENS.. 16,22 

### 2011WL 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

" MSTATEMENT 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 intrie 349th District Court of 

## Anderson County, Texas, Judge PamFoster-Fletcher presiding. Morris filed the necessary unsworn declaration inaccordance to Chapter 14 of the Texas Civil Practice and Remedies Code.(CR 11-12; 2SCR5) . Process of service of citation was conducted onAppellees onFeb

## ruay 18, 2009, returned and filedwith the District Clerk on February 19, 2009. See Appendix A-C. On March 17, 2009, Morris filed three 

## pleadings concerning Default Judgment.(CR21-23). Thepleadings were refiled on May 6, 2009.(CR25-26; 2SCR7) .Linda Richey was served on 

## April 27, 2009 (Appx. D) and filed an answer onMay 20, 2009 through counsel Asst, Attorney General Julia Hamill Yiurray. (CR27). Awrit of 

## mandamus was filed to compel the trial judge to rule of the default 

## motion.(No. 12-09-00425-CV). The mandamus was denieddue tothe trial 

# judgerulingondefault judgment, qranting saiddefault judament.(1SCR 4). Appellees filedamotionfor leaveto fileanswerout-of-time, motion to set aside default judgment andOriginal answer onJune 7, 2010.(CR 30-40) . 

## Anotice of appeal was filed, dismissed for want of jurisdiction. Awrit of mandamus was filed, deniedby the Court of Appeals without 

## awritten order. The Supreme Court subsequentlydeniedwrit inApril
2011.

## Morris filedvarious motions andnumerous motions forhearing on 

# pre-trialmotions. Appellees filedamotiontodismiss(CR69) anda responsewas filed.(CR80)
-Noneof themotions filedwereruledupon. 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. ^.CR109) . A Motion to Reinstate Suit was filed on November 6, 2014 (CR1I2) along with Notice of Appeal (CR114) . On November 18, 2014, trial judge wrote a note stating "no action" regarding motion 

### to reinstate.(CR116) . 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 denoro. 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§323.007(formerly Vernons Ann .Civ.St. Art. 54295-1). Section 323 .007 provides : (a) the council shall plan and execute a permanentstatutory revision 

### program for the systematic and continuous studyof the statutes of this State and for the formal revision of statutes on a topical or 

### code basis. The purpose of theprogram is to clarifyand 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.959, 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). 

### GovernmentCode§22.004 prbtvides, in relevantparts: (a) The SupremeCourthas full rulemaking powerin thepracticeand 

### procedure incivilactions, except that its rulesmaynotabridge, enlarge,ormodify thesubstantive rights ofa litigant. 

## (c)So that theSupremeCourt hasfullrulemakingpower incivilactions, aruleadoptedby theSupremeCourt repeals all conflicting laws and partsof laws governing practice andprocedure incivilactions,but substantive law is notrepealed. 

### (Vernons 2004)(emphasis added) Under Vernon 's Ann .Civ.St. art 1731a , which gave Supreme Court 

## rulemaking powers,Supreme Courtwas invested witrlcomplete authority to prescribe all Rules ofprocedure 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 , 168S .W .2d636 (Tex. 1943)(emphasis 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 . 501S.W .2d 868 8 72 (Tex. 1973) . 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 , 234S.W .3d 1 (TexApp.-Houston[Ist 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: 

### 'Uponsuch call of thedocket,oratanytimeafteradefendant is required to answer, the plaintiffmay in term time take judgmentby 

## defaultagainstsucjidefendantifhe has not previouslyfiledananswer, and provided that the return ofservice shallhavebeenonfile with the clerk for the lenqth of time requiredbyRule 107."

• 6"(West 2014) 

### 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.takedefault judqmentaqainst the state, a state aaenqy, or a partv in a civil case for which Chapter 104 

### authorizes representation by the attorney general shall bemailed to the attorney generaloat the attorney general's office in Austin, Texas, byUnited States Postal Service Certified Mail, Return Receipt Requested, not later than the 10th day before the entryof 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 ofinconsistencybetween provisions of these rules and any statutory procedure not specifically listed as repealed, these rules shall apply. " (West 2014)"(emphasis added) Furthermore, Rule 2 clearly states that the Rules of Civil Procedure is controlling: 

### "Theserules shall govern theprocedure in thejustice, county, and district courts of the State of Tejas in 

### all actions ofacivil nature, with such exceptions asmay be hereinafter stated. " . 

### (West 2014)(emphasis added) Therefore, pursuant to the stablished Rules and Statutes, a 

### finding that the Supreme Court has exclusive rulemaking authorityfor 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-Worth1997), or special procedural rules. GARRETT v WILLIAMS, 250S.W.3d154 (Tex.App.-Ft-Worth2008). 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.2dat 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.2dat 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, 370S.W.2d867,870-71 (Tex. 1963); PERAZA v STATE, 2014TEX.APP.Lexis 

### 13915 (Tex.App.-Houston[1stDist] 2014. FN 1: Section 14.002 was amended in2012, 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.2d386 (Tex.App.-Waco1994); SMITH v STEVENS, 822 S.W.2d152 (Tex.App.-Houston [1stDist] 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 manyfrivolous 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 dismissinq of a case for abuse 

### of discretion. HICKSON v MOYA, 926S-W.2d 397 (Tex.App.-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 orunsworn declaration of 

### inability to paycostshall file a separate affidavitor declaration: (1)identifying each action, other than an action under the Family Code, previous broughtby the person and in which the person was not represented byan attorney, without regard to 

### whether the person was an inmate at the time the action wasbrought; and 

### (2)describinq each action tha was broughtby: (A)statinq the operative facts forwhich reliefwas souqht; (B)listinq thecase nane, cause number, and the court in which the action was brouqht; (C)identifying each party named in the action: and 

### (D)statinq the resultoftheaction, inclndinq whether theaction or a claim that was a basis for the action was dismissed as frivolous ormalicious 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.

xoHICKSON, 926S.W.2dat 399. In BELL v TDCJ-ID, 962, S .W .2d 156 (Tex.App.- Houston [14thDist] 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 [14thDist] 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.2d936 (Tex. 

## App.-Ft.Worth1997) ; see also THOMPSON vSILVAS, 2003WL22254950 (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, 37S-W.3d562-563-64 (Tex.App.-Beaumont 2001) . 

### Notwithstanding, the trial courts determination, Appellant contends that suchdetermination by the trial court after 5\ years of 

## litigation that included aDefault 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..." SeeTex.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 vOWENS, 2011 WL2409311 (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 byprison inmates, as these suits consume many valuable judicial resources with little offsetting benefits); LEACHMAN v DRETKE, 261S.W.3d297 (Tex.App.-Ft.Worth2008) (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 todismiss or not. It is clear, Legislature intended state trial courts to develop similiar procedure, to ensure justice. 

### The Appellant filed anunsworn 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.

•11PRAYER 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 ftfir, I -t* 

### this the/S^day ofMaroh, 20 15 .

•aM C . M o rris TDCJ-ID # 1311083 DOB : 11/01/1971CERTIFICATE 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 10CPI 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 CountyIN 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 79331TABLE 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 7APPENDIX NO. 1

RETURN SERVICE PROCESS ON SHERRI MILLIGAN

### <tzn 

### Citation
- personal service
THE STATE OF TEXAS TO SHERRI MILLIGAN BETO UNIT OF TDCJ-ID TENNESSEE COLONY, TEXAS 

## RETURN

'1 

### Defendant, in the hereinafter styled and numbered cause: 

### YOU ARE HEREBY COMMANDED to appear before the 349TH Judicial 

### District Court ofAnderson County, Texas, the courthouse being located at 500 North Church Street in the CITY OF PALESTINE, ANDERSON COUNTY, 

### TEXAS, by filing awritten 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 ofwhich accompanies this citation inCause 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, 

### attorney do not file a issued this Citation by 

### expiration of twenty (20) 

### You may employ an attorney. If you or your written answer with the District Clerk who 

### 10:00 A.M. on the Monday next following the 

### days after you were served this citation and petition, a default judgement may be taken against you. ISSUED AND GIVEN UNDER MY HAND AND 

### this the 6th day of February, 2009. SEAL of said court at office,

ISSUED AT REQUEST OF: ROBERT C. MORRIS #1311083 P.O. BOX 128 TENNESSEE COLONY, TX 75880
BAR NO. JANICE STAPLES Distr
500 NORTH CHURCH ST PALESTINE, TEXAS, 75801 TY, TEXAS Deputy

'i-'r^1— •i") •'i... -j... -•1 <n •—. r '•'.'O

—< x V.OOFFICER/AUTHORIZED PERSON RETURN 

### CAME to hand on the £ day of /^^,J *&*>? , at o'clock/? .M. 

## EXECUTED at 7-^?cJ~ ;3<£^ Y 2 2-


## withintheCountyof /Pss/p&sls<?f at S^ 27 o'clockjl_M. ONTHE /fr dayof J?/£& J2&>>7 , bydeliveringtothewithinnamed f/f£/l/tj At/£/..*6S}**' _, in person, a true copy of this 

## citation togetherwith the accompanying copyof thepetition, having 

## first attachedsuchcopyof suchpetitionto suchcopyof citationand endorsedon suchcopyof citation the date of delivery. 

## NOTEXECUTED, thediligenceusedtoexecutebeing , forthe following reason ,

_, THE Defendant may be found 

### Fees for serving this citation 

## £r (T)t>
TO CERTIFY WHICH WITNESS MY HAND OFFICIALLY. SHERIFF C©NS^BLE County, Texas



### On this day, 

### # /V0/5>J--.fg^ 

## BY/&Z4& J*J^. 7-^£?>-~ _Deputy. AUTHORIZED PERSON AFFIANT ______^_ known to me to be the 

## person whose signature appears onthe foregoingreturn, personally appeared. After being by me dulysworn, he/she stated that this citationwas executedby him/her inthe exact manner recited on the return. 

### SWORN TO AND SUBSCRIBED BEFORE ME on this the day of

NOTARY PUBLICAPPENDIX 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 toappear before the 349TH Judicial District Court ofAnderson County, Texas, the courthouse being located at 500 North Church Street in the CITY OF PALESTINE, ANDERSON COUNTY, 

## TEXAS, byfiling awrittenanswer 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 

## copyof whichaccompanies this citation inCauseNumbered 6270, styled
MORRIS ROBERT C vs. SHERRI MILLIGAN, et al PLAINTIFF,

, 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 awritten answerwith the District Clerk who issued this Citation by 10:00 A.M. onthe Monday next following the 

## expirationof twenty (20) days afteryouwere served this citationand petition, adefault judgement may be takenagainst you. ISSUED AND GIVEN UNDER MY HAND AND SEAL of said court at office, this the 6th day of February, 2009.

ISSUED AT REQUEST OF: ROBERT C. MORRIS #1311083 P.O. BOX 128 TENNESSEE COLONY, TX 75880 BAR NO. JANICE STAPLES 

# DistantClerko.f-ANDERSONCOUNTY, TEXAS

, / •. v • Deputy 

## BV/ ,(-X 500NC#TH CHURCH ST PALESTINE, TEXAS, 75801

•I »•• • rn en VjD

CO oOFFICER/AUTHORIZED PERSON RETURN CAME to hand on the £ day of 

## o'clock p .M. EXECUTED at 7~<£>CT /$''/-^ J ,±c? , at y z z.



### within the County of /}a"/>J-ASj^ at fr2y o'clocky/.M. ON THE /& day of pf j3 .3^*7 , bydelivering tothe withinnamed 

## 3 Ay#a; &*A&/

_ , inperson, a true copy of this 

## citation together' with the accompanying copyof 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- /j'/UPf/?SV 

## BY z&fr"^-^.

AFFIANT 

### SHERIFF GGNBHffiLE County, Texas Deputy. AUTHORIZED PERSON

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 PUBLICAPPENDIX NO. 3

RETURN SERVICE PROCESS

ON CHRISTY HOISINGTON-^

THE STATE OF TEXAS "CITATION PERSONAL SERVIC


### 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 vs . SHERRI MILLIGAN, et al PLAINTIFF, DEFENDANT, filed in said court on the 29th day of January, 2009 

## RETURN

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

ISSUED AT REQUEST OF: ROBERT C. MORRIS #1311083 P.O. BOX 128 TENNESSEE COLONY, TX 75880
BAR NO. 

### District Clerk7of ANDERS0N COUNTY, BYi f 

### 'LtL-fL-L CZ 500 NORTH CHURCH ST PALESTINE, TEXAS, 75801 

# H^^^ TEXAS Deputy

~n m CO

9? 1X5OFFICER/AUTHORIZED PERSON RETURN 

### CAME to hand on the & day offt=.<y ,a^**/ , at */'2J? o'clock ? ,M. 

### EXECUTED at 7^gj- ff^r** within the County of J*//-;#si<,-**; at 2~zz- o'clock^ .M. 

### ON THE /fr day of p£s?



### f/frt/j•/•/ Aforg/*>c.,r#xs citationtogether with the accompanying copy of the petition, having 

## first attached such copyof suchpetition to such copyof citationand endorsed on such copy of citation the date ofdelivery. 

## NOTEXECUTED, the diligence used to execute being , for the following reason , c 

### otoDl , by delivering to the within named

, in person, a true copy of this

, THE Defendant may be found 

### Fees for serving this citation J^S'
TO CERTIFY WHICH WITNESS MY HAND OFFICIALLY. SHERIFF CQ$*S?KBLE County, Texas

On this day, Xfst.'ps'/lSos^ 

### BY ^ r>.^r-^sr->- Deputy. AUTHORIZED PERSON AFFIANT



### , known to me to be the 

### personwhose 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 PUBLICAPPENDIX NO. 4

RETURN SERVICE PROCESS ON LINDA RICHEYSTATION PERSONAL SERVICI 

## RETURN
THE STATE OF TEXAS TO LINDA RICHEY 901 NORMAL PARK, SUITE 101 HUNTSVILLE, TX 7732 0 Defendant, in the hereinafter styled and nuiri YOU ARE HEREBY COMMANDED to appe District Court of Anderson County, Texas at 500 North Church Street in the CITY 

### TEXAS, by filing a written answer to the OF CIVIL COMPLAINT at or before 10:00 o" 

### after the expiration of 20 days after 

### copy of which accompanies this citation 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. 

### hKtC'JHQ 

# 0Sh^^Mfrff 

# .be^illl^

ar before the 349TH Judicial
, the courthouse being located OF PALESTINE, ANDERSON COUNTY, PLAINTIFF'S ORIGINAL PETITION clock a.m. on the Monday next the date of service hereof, a in Cause Numbered 6270, styled

ISSUED AND GIVEN UNDER MY HAND AND SEAL of said court at 

### this the 30th day of March, 2009. JANICE STAPLES office,

Dist t Clerk, o

ISSUED AT REQUEST OF: ROBERT C. MORRIS #1311083
- MICHAEL UNIT, P.O. BOX 128 TENNESSEE COLONY, TX 75880
BAR NO. m CHURCH PALESTINE, TEXAS, 75801 TEXAS 

# y%^/Dep Deputy



# 5Lioo\OFFICER/AUTHORIZED PERSON RETURN 

# CAMEtohandonthe /J[dayof /VyA;/ 0f,at /'.»*
o'clock <D ,M. 

# EXECUTEDat CjD\ /1/dr/*l*(P^iC withintheCountyof WVvl^ at ?-T* o'clocky^.M. 

# ONTHE P-1dayof //W»t 2-$-' bydeliveringtothewithinnamed

:itation together wit 

### , in person, a true copy of this citation together With the accompanying copy of the petition, having first attached such copy of suchpetition 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 /fie.ev

TO CERTIFY WHICH WITNESS MY HAND 

### SHERIFF' CONSTABLE 

### jij/jil&^ County, Texas BY 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