FILED IN
1ST COURT OF APPEALS
HOUSTON, TEXAS
DEC 2 8 2015
N0.0l-lS-OOO36*@W
IN THE .
FIRST COURT OF APPEALS
AT HOUSTON
RUSSELL HAM
APPELLANT
V.
WILLIAM STEPHENS'ET AL
APPELLEE
§PPELLED FROM THR FIRSTCOURT OF APPEALS
HARRIS COURTY-TEXAS
APPELLANT" MOTION FOR REHEARING
Russell Ham,Pro se
TDCJ-#llO4449
Polunskv Unit
3872 FM 350 South
Livingston,Tx 77351
ORAL ARGUMENT WAIVED
TABLE OF CONTENTS
/
Table of Contents
IS$ueS Presented for Review:
Issue One: Did the court properly dismiss Appellant'S
Suit as frivolous under Texas Civil Practice
&Remedies Code §l4~003(a)(2),(b)(1)
Statement of Fact$
Argumeht
Prayer
Certificate of Service
Unsworn Declaration
lO
N0.0l-15-00036-CV
Bussell,Hamw
Appellant,
William Stephens,ET/AL
Appellee.
Appellant Russell Ham's Motion for Rehearino
»Appéllant,Russell Ham,submits this motion for rehearino in
response to'the ooinion issued bv the Court on October 15,2015
and reouests that the Court consider the followino issues:
d 'Issues Presented for Review W
Issuel: Did thé Court Prooerlv Dismiss Aooellant's suit as
Frivolous under Texas Civil Practice&Remedies Code§l4\003(am(?\
(b)(l)
FACTS
On April 13,2014 at the Allan B Pol"ns}:y Unit Polk Cnnn+y,Texas
-went on lockdown status
o» April 14,2014 Russe11 nam ~o-t to 19 buildinq qvm to bn ch¢¢k
down.
Robin Sullivan was in_lQ building gym as part of the shakedown
crew.
Upon arrival from 19 building z-nod entering the ovm and ner+in~
into line defendant began velling for the inmates t` get there
property packed in the red crates.
Upon Russell Ham'" turn at 'Robin Sull ivan 's table/as Russe ll
Ham was putting RussellHam's property on the tabltM,Rob oin "ull 'van
"$
threatened to throw Russell Ham's prope ty in the trash if
Russell Ham didn't hurrv uo_
As to the `claim to paragraph 9,Russell Ha“ told Robin Sullivan
if Robin §"111"=“ *h1ew any of Russell'Ham’s pronerty away he
wanted confiscation papers and if Robin Sullivan fe iled to give
Russell Ham confiscation papers Ru"sell Ham would write a
Robin ."ulli 'an threatened to write Russell Ham acase if Russell
Ham wrote a grievance on Robin Sullivan.
Robin Su ll1 an took nussell Ham's Holy Bible,$ Dungeon and Dragon
~e "am.That
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books,as well as 23 other books belonging to Rus
(
if Russell Ham had a problem to use the grievance process
end see what happens.
Robin
all of
grandmother’s Will,and
Zam's convicti
At no time
Russell Ham
Wh“n Russell
Sullivan,took
Russell Ham's personal and familv
on and
during
any
Ham questioned Robin Sullivan about
CO
Russell Ham's photo album,which included
nictures-Ruesell Ham's
various legal papers pertaining to Russell
thew them into the trash...
the above incidents did Robin Sullivan write
nfiscation papers&on Russell Ham's`property.
the disposition
.of his property Robin Sullivan got real belligerant.
ARGUMENT
Issue P1e senteo for Review:
Did the Cc urt properly dism ss Appellant's'suit as frivolous
under_Texas Civil Fractice &Re edi e Code § l4.003(a}(2),(b)(l)@
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The 4llth Judicial Court County,TeXas,cause No.CIV28,SOO
d smi's ed Appellant's suit as fr iv lou s f
o1 failure to comply
\"i'_.
\)
with Chapter 14 of the Texas Civil Prac 11a &Reme dies Gode.see
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(b){l)"the claim" realistic chance of ultimate sue ces
{2) the claim has no arguable lasis in law or fact;
(a)it is clear that the party cannot prove facts in Support
of tne claim;or
(e}the claimis substantially similar to a previous claim filed
by the inmate because the claim arises'from the same anew a
operative facts.
:‘_`.
:'4}'
Appellant was rever granted a_fact hearing before the trial
court.When a trial court dismisses a suit without afact hearing
,the court could not have determineo the suit had no arguable
»basis in law,Horris v. Collins,916 s.w.2d52 (T“X.App. -Houston[lst
dist.. ]1995).
.~.'»
S ; f Review
is reviewed under Chapter le for an abuse of discre-
tion iii , an inmate‘ s suit is dismissed as frivolous for naving`
no - z 1 ' ‘n law or fact but no fact hearing is held. Tze review
on whether th suit has an arguable basis in law
v.Pechacek,3l9 s.w-Bd 801q807(Tex.App.~Fort worth ZGlO)"
S:ott v. Gallagher ,2ۤ E.v;.3d2'2, SG(T App. ~Houv*on
gist §1;1.]2©©6?¥-
When `the court conoucts.a review under an abuse of discretion
the fattual allegations are taken as true in an inmate' s petition§
* 319 g.w.3a at 307.
'Appo'ialt‘s` case should not have been dismissed as :rivolous
~by the trial court for the follozing itasons.
When'_'\_»§ov Sullivan threw appellant‘ s photo album- which 1ncltl
.irreplacable personal an” family photoi" along with, appell ant's
legal. papers pertaining to app ell` ant's
'rash co Sullivan was no longer under the
o{ her employment b1t was acting under her own interes
2
employee's \act is not ithin'the scope of emolo/n at when
|within an independent course of conduct not intenied
4 oyee to serve any pu1 pose of the eu1ployer.Restatement
(Third}:of'ngeney.
»»
Sullivan's act of destroying Ham's property with out turning
that 'y room are acts
(,j
r1
['r
property into the pclun squ unit p :op
occurrdng` within an independent course of eonduct§not intended
ment
(`C‘
by Sullivan to serve any' urpose of her employe".R's;at
(third) of Agency §7.07(2).See also Reece v. Johison,ZGlB Tex.App
LEXIS 106211
'When an officer ot TDCJ destroys an inmate's property ;hat
inmate has an varguable basis in Law. Presiado v. Sheffield,ZB~
S.W.Bd 272,275`(Tex.App1 Beaumont 2607).
' . .~
Appellant Ham has an arguable oesis in Law agains~
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court should not have dismis"ed Appellaht*s
|,.J.
El
therefore the tr
a
'1voloc and the Court of Appeals should not nas
bh
w
(!.‘
Ca.ES aS
affirmed the trial court's rulinq.
\l\\
PRAYER
For these reasons Appellant Ham asks this Honorable Court
to reverse and remand this case back to the trial Court so that
Appellant can take thisl case to a jury trial on the merits of
whether Appellee Robin Sullivan was acting under the scope of
her employment.
CERTIFICATE OF SERVICE
I, Russell Ham, TDCJ-ID # 1104449, Prose certify that a
true and correct copy of Appellant Russell Ham's Appellant
RRussell Ham's motion for rehearing has been placed in the Allan
B. Polunsky Unit's mailbox on December 21, 2015, postage prepaid,
First Class mail addressed to the Clerk of the Court, First
Court of Appeals, 301 Fannin, Houston, Texas 77002. A true
and correct copy has been mailed to the following:
Briana Webb
Assistant Attorney General
P.O.Box 12548, Capital Station ,, _
Austin, Texas 78711 1 ;Z::Z:”’W
Russell Ham/ Pro se
TDCJ-ID# 1104449
Polunsky Unit
3872 F.M. 350 South
Livingston, Texas 77351
UNSWORN DECLARATION
My name is Russell Ham, my date of birth is 12-30-71, and
my inmate identifying number is # 1104449. I am presently incar-
cerated in the Allan B. Polunsky Unit, Livingston, Polk County,
Texas 77351. I declare under penalty of perjury that the facts
stated in this document are true and correct.
Executed on December 21, 2015.
-%%M
l
Russell Ham, Declarant
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