IN THE TWELFTH COURT OF APPEALS TYLER , TEXAS F|LED in COURT OF APPEALS NO. 12-14-00 3 32-CV REC'D If ^LS 12th Court r . Hstrict 12th Court of Appeals District \L\iXL ROBERT C. MORRIS /CERTEXAS/ CATHV S. LUSK, CL CATHY 3. LUSK^CMER! APPELLANT vs 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 79331 IDENTITY OF PARTIES AND COUNSEL APPELLANT ROBERT C . MORRIS TDCJ-ID # 13 11083 SMITH UNIT 1313 CR 19 LAMESA , TEXAS 7933 1 COUNSEL: PRO SE APPELLE(S ) SHERRI MILLIGAN BRYAN GORDY CHRISTY HOISINGTON CO UN SE L : PATRICK BREZIK ASST. ATTORNEY GENERAL PO BOX 1254 8 AUSTIN, TEXAS 78711-2548 TRIAL JUDGE : HON. PAM FOSTER-FLETCHER 349TH JUDICIAL DISTRICT COURT 500 N. CHURCH ST. , RM .30 PALESTINE , TEXAS 75801 STATEMENT REGARDING ORAL ARGUMENT Appellant at this time waives oral arquments, unless appellee request oral arquments at a later time. 11 TABLE 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 PLEAD INGS ? PR AYE R 21/ CERTIFICATE OF SERVICE 3«/ CERTIFICATION 3* APPENDIX ATTACHED SEPARATE ill INDEX 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.2d 156 (Tex-App .-Houston [14th Dist]1998) BIRDO v SCHWATZER . 18 883S.W.2d386 (Tex.App.-Waco 1994) BROWN v VILLEGAS 5.16 202 S.W.3d 803 (Tex.App.-San Antonio 2006) CLEMENTS v BARNES 15 822 S.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.3d 718 (Tex.App.-Houston [1st Dist] 2011)' HAMILTON v PECHACEK II 2014 Tex.App.Lexis 3096 (Tex.App.-Ft. Worth 2014) 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 2014 Tex.App.LEXIS 7903 (Tex.App.-Houston[lst Dist] 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 [14th Dist] 2002) N.N. vINSTITUTE FOR REHABILITATION AND RESEARCH-. 6 234S.W.3d 1 (Tex.App.-Houston [1st Dist] 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 2014 Tex.App.LEXIS 13915 (Tex. App.-Houston [ist Dist J 2014) 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 [1st Dist] 1991) STRACKBEIN v PREWITT 12,13 671 S.W.37 (Tex. 1984) SULLIVAN v OWENS.. 16,22 2011 WL 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 " M STATEMENT 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 in trie 349th District Court of Anderson County, Texas, Judge Pam Foster-Fletcher presiding. Morris filed the necessary unsworn declaration inaccordance to Chapter 14 of the Texas Civil Practice and Remedies Code.(CR 11-12; 2 SCR 5) . Process of service of citation was conducted on Appellees on Feb- ruay 18, 2009, returned and filed with the District Clerk on February 19, 2009. See Appendix A-C. On March 17, 2009, Morris filed three pleadings concerning Default Judgment.(CR 21-23). The pleadings were refiled on May 6, 2009.(CR 25-26 ; 2 SCR 7) . Linda Richey was served on April 27, 2009 (Appx. D) and filed an answer on May 20, 2009 through counsel Asst, Attorney General Julia Hamill Yiurray. (CR 27 ). A writ of mandamus was filed to compel the trial judge to rule of the default motion.(No. 12-09-00425-CV). The mandamus was denied due tothe trial judge ruling on default judgment, qranting said default judament.(1 SCR 4). Appellees filed a motion for leave to file answer out-of-time, motion to set aside default judgment and Original answer on June 7, 2010.(CR 30-40) . A notice of appeal was filed, dismissed for want of jurisdiction. A writ of mandamus was filed, denied by the Court of Appeals without a written order. The Supreme Court subsequently denied writ in April 2011. Morris filed various motions and numerous motions for hearing on pre-trial motions. Appellees filed a motion to dismiss(CR 69) and a response was filed. (CR 80) - None of the motions filed were ruled upon. 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. ^.CR 109) . A Motion to Reinstate Suit was filed on November 6, 2014 (CR1I2) along with Notice of Appeal (CR 114) . On November 18, 2014, trial judge wrote a note stating "no action" regarding motion to reinstate.(CR 116) . 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 de noro. 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 .00 7 (formerly Vernons Ann .Civ.St. Art. 54295-1). Section 323 .007 provides : (a) the council shall plan and execute a permanent statutory revision program for the systematic and continuous study of the statutes of this State and for the formal revision of statutes on a topical or code basis. The purpose of the program is to clarify and 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.9 59, 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). Government Code § 22.004 prbtvides , in relevant parts : (a) The Supreme Court has full rulemaking power in the practice and procedure in civil actions, except that its rules may not abridge, enlarge, or modify the substantive rights of a litigant. (c) So that the Supreme Court has full rulemaking power in civil actions, a rule adopted by the Supreme Court repeals all conflicting laws and parts of laws governing practice and procedure in civil actions , but substantive law is not repealed. (Vernons 2004) (emphas is added) Under Vernon 's Ann .Civ.St. art 173 1a , which gave Supreme Court rulemaking powers , Supreme Court was invested witrl complete authority to prescribe all Rules of procedure 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 , 168 S .W .2d 6 36 (Tex . 1943 )( emphas is 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 . 501 S .W .2d 868 8 72 (Tex. 19 73) . 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 , 234 S .W .3d 1 (Tex App .-Houston [ Is t 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 : 'Upon such call of the docket , or at anytime after a defendant is required to answer , the plaintiff may in term time take judgment by default against sucji defendant if he has not previously filed an answer , and provided that the return of service shall have been on file with the clerk for the lenqth of time required by Rule 10 7." • 6" (West 2 014 ) 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. take default judqment aqainst the state, a state aaenqy, or a partv in a civil case for which Chapter 104 authorizes representation by the attorney general shall be mailed to the attorney generaloat the attorney general' s office in Austin, Texas, by United States Postal Service Certified Mail, Return Receipt Requested, not later than the 10th day before the entry of 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 of inconsistency between provisions of these rules and any statutory procedure not specifically listed as repealed, these rules shall apply. " (West 2 014 )"( emphas is added) Furthermore, Rule 2 clearly states that the Rules of Civil Procedure is controlling: "These rules shall govern the procedure in the justice, county, and district courts of the State of Tejas in all actions of a civil nature, with such exceptions as may be hereinafter stated. " . (West 2 014 ) (emphasis added) Therefore, pursuant to the stablished Rules and Statutes, a finding that the Supreme Court has exclusive rulemaking authority for 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-Worth 1997), or special procedural rules. GARRETT v WILLIAMS, 250 S.W.3d 154 (Tex.App.-Ft-Worth 2008). 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.2d at 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 .2d at 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, 370 S.W.2d 867,870-71 (Tex. 1963); PERAZA v STATE, 2014 TEX.APP.Lexis 13915 (Tex.App.-Houston [1st Dist] 2014. FN 1: Section 14.002 was amended in 2012, 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.2d 386 (Tex.App.-Waco 1994); SMITH v STEVENS, 822 S.W.2d 152 (Tex.App.-Houston [1st Dist] 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 many- frivolous 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 dismiss inq of a case for abuse of discretion. HICKSON v MOYA, 926 S-W . 2d 39 7 (Tex. Ap p.-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 or unsworn declaration of inability to pay cost shall file a separate affidavit or declaration: (1)identifying each action, other than an action under the Family Code, previous brought by the person and in which the person was not represented by an attorney, without regard to whether the person was an inmate at the time the action was brought; and (2 )describinq each action tha was brought by: (A)statinq the operative facts for which relief was souqht; (B)listinq the case nane, cause number, and the court in which the action was brouqht; (C) identifying each party named in the action: and (D)statinq the result of the action, inclndinq whether the action or a claim that was a basis for the action was dismissed as frivolous or malicious 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. xo HICKSON, 926S.W.2dat 399. In BELL v TDCJ-ID, 962, S .W .2d 156 (Tex.App.- Houston [14th Dist] 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 [14th Dist] 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.2d 936 (Tex. App.-Ft.Worth 1997) ; see also THOMPSON v SILVAS, 2003 WL 22254950 (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, 37 S-W.3d 562-563-64 (Tex.App.-Beaumont 2001) . Notwithstanding, the trial courts determination, Appellant contends that such determination by the trial court after 5\ years of litigation that included a Default 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..." See Tex.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 v OWENS, 2011 WL 2409311 (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 by prison inmates, as these suits consume many valuable judicial resources with little offsetting benefits); LEACHMAN v DRETKE, 261 S.W.3d 297 (Tex.App.-Ft.Worth 2008) (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 to dismiss or not. It is clear, Legislature intended state trial courts to develop similiar procedure, to ensure justice. The Appellant filed an unsworn 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. •11 PRAYER 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 ft fir, I -t* this the /S^ day of Maroh , 20 15 . C . M o rr is TDCJ-ID # 131108 3 DOB : 11/01/1971 • aM CERTIFICATE 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 10 CPI 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 County IN 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 79331 TABLE 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 7 APPENDIX NO. 1 RETURN SERVICE PROCESS ON SHERRI MILLIGAN zn ? , at Y 2 2- o' clock /? .M. EXECUTED at 7-^?c J~ ;3<£ ^ within the County of /Pss/p&sls>7 , by delivering to the within named f/f£/l/tj At/£/..* 6 S}**' _, in person, a true copy of this citation together with the accompanying copy of 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 (T)t> Fees for serving this citation £r TO CERTIFY WHICH WITNESS MY HAND OFFICIALLY. SHERIFF C©NS^BLE # /V0/5>J- -.fg^ County, Texas BY /&Z4& J*J^. 7-^£?>-~ _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 APPENDIX 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 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 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. ISSUED AND GIVEN UNDER MY HAND AND SEAL of said court at office, this the 6th day of February, 2009. JANICE STAPLES Distant Clerk o.f- ANDERSON COUNTY, TEXAS BV / ,(-X , / •. v • Deputy 500 NC#TH CHURCH ST ISSUED AT REQUEST OF: PALESTINE, TEXAS, 758 01 ROBERT C. MORRIS #1311083 P.O. BOX 12 8 TENNESSEE COLONY, TX 75880 BAR NO. •I »•• • rn en VjD CO o OFFICER/AUTHORIZED PERSON RETURN CAME to hand on the £ day of J ,±c? , at y z z. o'clock p .M. EXECUTED at 7~<£> C T /$''/-^ within the County of /}a"/>J-A Sj^ at fr 2y o'clock y/.M. ON THE /& day of p f j3 .3^*7 , by delivering to the within named 3_ Ay#a; &*A&/ , in person, a true copy of this citation together' with the accompanying copy of 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- SHERIFF GGNBHffiLE /j'/UP f /? S V County, Texas BY z&fr"^-^. 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 APPENDIX NO. 3 RETURN SERVICE PROCESS ON CHRISTY HOISINGTON -^ "CITATION PERSONAL SERVIC RETURN THE STATE OF TEXAS 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 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. ISSUED AND GIVEN UNDER MY HAND AND SEAL of said court at office, this the 6th day of February, 2009. JANICE STAPLES District Clerk7of ANDERS0N COUNTY, TEXAS Deputy BYi f 500 'LtL-fL-L NORTH CHURCH ST CZ H^^^ ISSUED AT REQUEST OF: PALESTINE, TEXAS, 758 01 ROBERT C. MORRIS #1311083 P.O. BOX 12 8 TENNESSEE COLONY, TX 75880 BAR NO. ~n m CO 9? 1X5 OFFICER/AUTHORIZED PERSON RETURN CAME to hand on the & day of f t=. c., r# xs , in person, a true copy of this citationtogether with the accompanying copy of 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 J^S' TO CERTIFY WHICH WITNESS MY HAND OFFICIALLY. SHERIFF CQ$*S?KBLE Xf st.'ps'/l S o s^ County, Texas BY ^ r>.^r-^sr->- 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 APPENDIX NO. 4 RETURN SERVICE PROCESS ON LINDA RICHEY STATION PERSONAL SERVICI RETURN THE STATE OF TEXAS h KtC'JHQ TO LINDA RICHEY 901 NORMAL PARK, SUITE 101 HUNTSVILLE, TX 7 73 2 0 0Sh^^ Mfrff Defendant, in the hereinafter styled and nuiri .be^illl^ YOU ARE HEREBY COMMANDED to appe ar 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 clock a.m. on the Monday next or before 10:00 o" after the expiration of 2 0 days after the date of service hereof, a copy of which accompanies this citation in Cause 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. 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 30th day of March, 2009. JANICE STAPLES Dist t Clerk, o TEXAS y%^/Dep Deputy m CHURCH ISSUED AT REQUEST OF: PALESTINE, TEXAS, 75801 ROBERT C. MORRIS #1311083 - MICHAEL UNIT, P.O. BOX 128 TENNESSEE COLONY, TX 7 5880 BAR NO. 5Lioo\ OFFICER/AUTHORIZED PERSON RETURN CAME to hand on the /J[ day of /VyA; / 0f , at / '.»* o'clock