NO. 12-15-00027-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

APPEAL FROM THE

FILED IN COURT OF APPEALS

12th Court of Appeals District

\m - h 2015

TYLER TEXAS

KENNETH CRISSUP % 3£AW S. LUSK, CLERK

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 ,Kenneth Crissup,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 jurisdiction was 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 to notice the Court,that due to the

inadequacy of the prison library on the Michaels Unit of the

Texas Department of Criminal Justice,he is unable to research

the case law in a timely manner and properly brief this issue.

He would request that the Court consider placing this matter

before the pro bono committee, or in the alternative 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 law pursuant to Tex.R.Civ.Proc.296.Appellant then filed

a Notice of Appeal within the 90 days allotted pursuant 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 30 days,because an evidentiary hearing

is not required to issue a findings of fact and conclusion of

law pursuant toTex.R.Civ.Proc.296 and hterefore,they are 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 the decision in order for them to formulate a basis for appeal.

In the case at bar,the Trial Court made a decision on a procedural

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 a party adversely affected 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 a Court 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 evidentiary hearing 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 a Trial 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 comply with the ruel and requires

an Appellant 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 Law when

it si a discretionary 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 interpretation of 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 only reasonable interpretation that any Appellant 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 consider Appellants original

appeal,because Tex.R.App.P.26.1(aO(4) and Tex.R.civ.Proc.296,297

does not specifically exclude an appellant's request for 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 a Trial Court's 'Findings of Facts & conclusions of

Law',before it can GRANT an Appelalnt jurisdiction to consider his

appeal if it is filed within the 90 day allotted time pursuant to

the rules.

QUESTIONS

1. Does the request of an Appellant for a Trial Court to issue

a Finding of Facts and Conclusions of Law that is not required

to be issued,or is discretionary in nature,cancel the extention

of time granted an appellant to fiel a notice of appeal under

Tex.R.App.Proc.26.1(a)(4) and Tex.R.Civ.proc.296,297?

2. Does the language of Tex.R.App.P. 26.1(a)(4) or Tex.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 of Tex.R.Civ.P.296 intended to provide

an Appellate Court incite in how a Trial Court derived at its

judgement or is it also intended to provide incite to a prospec

-tive appellant,so he 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 a factual

finding,does not the record itself become an evidentiary issue

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 such finding under an

abuse of discretion standard?
5. If a 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

copy of the foregoing was placed in U.S. Mail,First Class,Postage

Prepaid,to the following addressee on this the 26 TH DAy of February

,2015:

Attorney General /State of Texas

PO BOX 12548

Austin Texas 78711-2548

( attorney for defendants)

Kenneth Crissup