NO. 12-15-00027-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

APPEAL FROM THE FILED INCOURTOFAPPEALS 12thCourtofAppealsDistrict 

### \m-h2015
TYLERTEXAS 

### 3£AWS.LUSK,CLERK KENNETH CRISSUP % APPELLANT § V. § WILLIAM STEPHENS,TODD A. § FOXWORTH,PAMELA KIRKPATRICK, § EBONI BROWN,DR. GARY WRIGHT, § LISA GARRETT,ADN UNKNOWN § OFFICER § JUDICIAL DISTRICT COURT

ANDERSON COUNTY,TEXAS

MOTION FOR REHEARING
TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW,Appellant ,KennethCrissup,does hereby request 

### an rehearing pursuant to §49.1 Tex.R.App.Proc. and will show the following:

JURISDICTION The Twelfth Court of Appeals entered judgment on February 

### 18,2015.Appellant received said judgment on February 23,2015. original jurisdictionwas proper in the above matter,because a Notice of Appeal was timely filed pursuant to Tex.R.App.Proc 26.1(a)(4).
NOTICE TO THE COURT 

### Appellant would like tonotice the Court,that due to the inadequacyof the prison libraryon the Michaels Unit of the Texas Department of Criminal Justice,he is unable to research the case law in a timelymanner and properly brief this issue. 

### He would request that the Court considerplacing this matter before the pro bono committee, or in thealternative allow 

### Appellant additional time to prepare and research the issue.

1.STATEMENT OF CASE 

### This case was originally filed in Travis county,District Court.It was improperly forwarded to the court of Appeals, than remanded back to the Travis county District court.It was then transferred to Anderson County District Court.Prior to being transferred the Travis District Court denied defendants motion to dismiss pursuant to Tex.Civ.Prac.Rem.Code §14.004. Nevertheless,the Anderson County District Court dismissed 

### Appellants compalint citing non-compliance wit §14.004.Appelalnt timely filed a request for a findings offact and conclusions of lawpursuant to Tex.R.Civ.Proc.296.Appellant then filed 

### aNotice of Appeal within the 90 days allottedpursuant to Tex. R.Civ.Proc.297 and Tex.R.App.Proc.26.1(a)(4).This Court,denied jurisdiction of his original appeal,because he did not file 

### a notice of appeal within 30days,because an evidentiaryhearing is not required to issue a findings of fact and conclusion of 

### lawpursuant toTex.R.Civ.Proc.296 and hterefore,theyare not allowed to consider such finding and under the premise restricts 

### Appellant ,to the 30 day filing requirement.Appellant disagrees.

ARGUEMENT The legislative intent of Tex.R.Civ.Proc.296 was to inform 

### not only the Appellate Court of the basis of a Trial Judges decision,but to allow incite to the parties involved an affected 

### by thedecision in order for them to formulate a basis for appeal. In the case at bar,the Trial Court made adecision on aprocedural ground that is contrary to the record entered in clerks record. As the Court is aware,a Trial Court is allowed by law to enter a judgment based solely on the written record before the Court. 

### It is therefore reasonable fro apartyadverselyaffected by such a ruling to request the Court to illicit how it derived at a decision.In the case at bar the issue evolves around whether or not ,Appelalnt,filed the appropriate documents as

2.

### required,and whether or not aCourt had previously ruled that he done so.Since the Clerk's record is evidence in this case, and the Court's only source of evidence to derive that he either did or did not comply rests on that evidence,Appellant,would submit that the Trial Judges 'FACT' issue was decided based 

### on an evidentiaryhearing thatwas without Appellants participa 

### tion being allowed.As such,thisCourt has the ability to review such a 'FACT' finding based on the evidence before this Court contained in the record. While this Court may not be legally able to consider a 

### Judge's findings of facts and conclusions of law based on a decision derived from a sufficience of evidence issue,Appelalnt, would assert that the Court does have jurisdiction to consider an appeal that is field withinthe 90 period allotted pursuant to Tex.R.Civ.Proc.297,Tex.R.App.Proc.26.1(a)(4),regardless of whether or not a fromal evidentiary hearing was conducted.The rule does 

### not contain any language which requires the Court to have to be able to consider aTrial Judges Findings of Facts and Conclusions 

### of LAw,it only requires the Trial Court to issue such Findings 

### if required by law.The rule further allows fro a situation in which a Trial Court does not complywith the ruel and requires 

### anAppellant to submit his appeal within 90 days even if no findings of focts and conclusions of law is issued by the Court. Tex.R.Civ.Proc.296 deos not specifically state that a Trial Court cannot file a Findings of Facts and Conclusions of Lawwhen 

### it si adiscretionary request.lt only specifies at what time the 

### Appellant must act if the Trial Curt does not exercise that discret ion.The additional time allotted by simply making the request for the Court to issue it's FF&CL is not affected by the plain 

### language of the law, nor is the Court's interpretationof it reflect that language.Because the rule does not specify that if
a Court is not allowed to issue a FF&CL under certain circumstances 

### the onlyreasonable interpretation that anyAppellant may arrive at is that it applies to all requests for FF&CL regardless of whether the Court has discretion to issue one or not.SUMMARY OF ARGUEMENT 

### This Court has jurisdiction to considerAppellants original 

### appeal,becauseTex.R.App.P.26.1(aO(4) andTex.R.civ.Proc.296,297 does not specifically exclude an appellant's requestfor a discretionary issuance of a 'Findings of Facts and Conclusions of LAw' by a Trial Court.Further,the rules do not require the Appellate Court to be. 

### able to consider aTrial Court's 'Findings of Facts & conclusions of 

### Law',before it canGRANTanAppelalnt jurisdiction toconsider his 

### appeal if it is filed within the 90 day allotted time pursuant to the rules. QUESTIONS 

### 1. Does the request of anAppellant for a Trial Court to issue 

### aFinding ofFacts andConclusions of Lawthat isnot required to be issued,or isdiscretionary innature,cancel the extention 

### of time granted an appellant tofiela notice of appeal under Tex.R.App.Proc.26.1(a)(4) andTex.R.Civ.proc.296,297? 

### 2. Does the language ofTex.R.App.P. 26.1(a)(4) orTex.R.Civ.P. 296,297 give an appellant adequate notice that a discretionary request under rule 296 prohibits the Court of Appeals from considering a Trial Court's findings and thereby denying an 

### appellant the benefit of the extended time to fiel an appela? 3. is the sole purpose ofTex.R.Civ.P.296 intended to provide 

### an Appellate Court incite in how a Trial Court derived atits judgement orisit also intended to provide incite to a prospec -tiveappellant,sohe may decide if an appeal should be sought? 4. When a Trial Court conducts a hearing outside of either parties 

### presence and relies onthe 'PAPER' Court record to make afactual 

### finding,does not the record itselfbecomeanevidentiaryissue that invokes the requirement under Tex.R.Civ.P.296 for the Court to issue a finding and therefore also invokiking the 

### Appellate Courts jurisdiction to consider suchfindingunder an abuse of discretion standard?

### 5. Ifa Trial Court disregards its duty to file a Finding of facts and conclusions of law puruant to Tex.R.Civ.P.296 does an Appellate Court than invoke a De Novo Review standard in deciding an appellants appeal ?

RESPECTFULLY SUBMITTED THIS 26 TH DAY OF FEBRUARY,2015.

Kenneth Crissup

CERTIFICATE OF SERVICE I,Kenneth crissup,do hereby certify that a true and correct 

### copyof the foregoing was placed in U.S. Mail,First Class,Postage 

### Prepaid,to the following addressee on this the 26 TH DAy ofFebruary ,2015:
Attorney General /State of Texas PO BOX 12548 Austin Texas 78711-2548 ( attorney for defendants)

Kenneth Crissup