Russell Hast #1104449
Allan B. Polunsky Unit
FILED IN
3872 FM 350 South
1ST COURT OF APPEALS
Livingston,Tx 77351 HOUSTON, TEXAS
AUG 0 6 2015
August 3, 2015
CHRISTOPHER A. PRINE
Clerk of the Court/ CLERK
First Court of Appeals
301 Fannin
Houston* Tat 77002
Re:Russell Ham v. William Stephens* ST.AL.#
Dear Clerka
Enclosed please find (1) original copy of Appellant Russell
Ham's Reply Brief. Please bring this motion to the Court's
Attention. Also enclosed is Appellant's copy of Appellant Russell
Ham's Reply Brief. Please date stamp Appellant's copy and return
tohim in the S.A.S.E.* Thank you.
A true and correct copy has been mailed to the Appellee.
Respectfully submittedi
Russell Ham# Pro se
No. 01-15-00036-CV
FILED IN
tST COURT OFAPPEALS
HOUSTON, TEXAS
IN THE
AUG 0 6'2015
FIRST COURT OF APPEALS
CHRISTOPHER A. PRINE
AT HOUSTON CLERK.
Russell Ham
Appellent
William Stephens,ET.AL
Appellee.
Appealed from the 411th court of
Polk county, Texas
APPELLANT RUSSELL HAM'S APPELLATE REPLY BRIEF
Russell Ham
T.D.C.J.-ID#1104449
Polunsky Unit
3872 FM 350 South
Livingston,Texas 77351
ORAL ARGUMENT WAIVED
TABLE OF CONTESTS
Table of contents 1
Indes of Authorities 2 -
Statement onOral Argument 3
Issues Presented 4
ISSUE-ONEs Was Appellee Sullivan Acting under the scope of
employment wlien she destroyed Appellant Ham's photo album,
grandmother's will, and legal papers. 3-10
ISSUE TWO: Should the trial court have dismissed Appellant
Ham's suit against Appellee Sullivan without allowing
Appellant thlty days to cure defects pursuant to Texas
Civil Practice § Remedies Code §101.106(f). 10-11
Statement of Facts 5-6
Summary of Argument 7
Argument 8-11
Prayer 12
Certificate of Service 13
Appendix 14
INDE2 OF AUTHORITIES
CASES
City of Lancaster v. Chambers, 883 S.W.2d 650,658(Tex. 1994)^9
Frank v. Velasquez,332 S.W.3d 367,369(Tex.2011) 8
Presiado v. Sheffield,230 S.W.3d 272,275(Tex.App.-
Beaumont 2007) 10
Reece v. Johnson,2013 Tex.App.Lexis 10621 9-10
CONSTITUTION
United States Constitution, 14th Amendment 11
STATUTES
Texas Civil Practice &Remedies CODE § ^|-^1^|^fj i6
Texas Civil Practice & Remedies Code§101.106(f) 15
(
Texas Penal Code§31.01(2)(A) 10
Texas Penal Code §31.03 (a) 10
OTHER
RRestatement (Third) of Agency §7.07 17
Statement On Oral Argument
The Court should not grant Oral Argument for the following reasons:
(a) Appellant Ham believes that Oral Argument will not aid this
Honorable Court's determination of this Appeal.
ISSUE 1
WasAppellee Sullivan acting under thr scope of employment
when she destroyed Appellant Ham's photo album,grandmother's
will,and legal papers.
ISSUE 2
Should the trial court have dismissed appellant Ham's suit
against appellee Sullivan without allowing appellant thirty
days to cure defects pursuant to Texas Civil Practice and
Remedies Code § 101.106(f).
STATBHEOT OF FACTS • * ' "
On April 13,2014, at the Allen B. Polunsky Unit* Livingston,
Texas w&a on ife*s bi-^'v.vti-l^ ioek-dowii. Russell Bam, plaintiff
brought his personal * legal and spiritual property to the 19
Building .Oorot tya to bo searched.{?l'»Pee*,j^« 2) RussellHaa'a
property was searched bf Officer Robin Sullivan* Officer Sull
ivan i®«*©di®tely began to threaten tothrov at?ay his property,
if he did'at hurry up and bring his property* Russell lam replied
"if you do decide to do so* I want confiscation papers'*.{PI*&
•t* pf.2)* Also * ho told officer Sullivan-that**if you refuse'-'
or fail to issue me confiscation ppapere* I will file a-grievance
on you".(PL's £>et*pg.2) Officer Sullivan then replied"that'
if you write a grievance I will write you a discippliaary iafca*
ctiefi.{PL*ePet.pf.2).However, Officer Sullivan unlawfully
and fitaliciouslly confiscated his Holy Bible*(3) throe Dungeons
and Dragon books* an wallas 26 other books belonging to Russell
»a©..(PL'aP#t. pg.2)0ffieer Robin Sullivan also confiscated
Susseil Baa's photo album contains his grandmother's mill otid
various legal papers* and placed it into the ftrasisean #{§&####$$ #
P9.2«3)offic@r ftobi® Failed or refused to icaue confiscaties*
papers for the property she eonfiscated from auoeell mm*
Russell Ham timely filed his Step 1 Grievance asserting various
elates retaliation and Texas Theft Liability eisiaa* among other
claims. Gnlfey 5*2314* the decisionmaker Assistant Warden Donald
Munis held Substantiate your allegations.you could only prove
legitimate ownership o£ (4) four of the booJia.contact Officer
Fox in the property room for these items to be returned. Ho
policy violations noted. Ho further action warranted.
Russell Ham*dissstifled with the response of the Step 1 Deci
sionmaker* submitted his Step 2 Grievance* showing how and what
the unit level failed to consider in their investigation.80
HaylS*2014*the response from Matt Gross.Regional Director held
that the grievance has been investigated b^ their ofice.your
allegations of misconduct could not be sustained.No further
Investigations is warranted by this office.
aussell Bara timely filed his Appeal on March 6*201S
:*v
6
SUMMARY OP THE ARGUMENT
A Appellant's first argument is that Appellee Sullivan
vonfiscated some of Appellant's books and turned them into
the Polunsky property officer without writing Appellant any
confiscation papers. Appelleealso destroyed Appellant's photo
albumi grandmother's will and various legal papers.
Appellant's second argument is that the District Court
abused* it's discretion when it dismissed Appellant's lawsuit
againt Appellee without allowing him the opportunity to cure
the defects under Texas. Civil Practice & remedies Code
§101.106(f). Appellant was denied Due Process ©flaw as
guaranteed under the 14th Amendment to the Uniter States
constituton.
ARGUMENT
ISSUE ONE:
Was Appellee Sullivan Acting under the scope of employment
whe nshe destroyed Appewhen she destroyed Appellant Ham's photo
album* grandmother's will and legal papers.
In Franka v. Velasquez*332 S.W.3d 367(Tex.2011*the Texas
Supreme Court set out a 3 prong test to determine whether a
suit against a government employee is considered a suit against
the employee in her official capacity. Id. a§ 369.
(1) whether the defendant is an employee Of a governmental unit:
(2) whether the defendant is acting within the general scope
Of her employment;and
(3) whether suit could have been brought under the tort claims
act against the agency. Id. at 369.
Appellant admits that Appellee Sullivan is a T.D.C.J. emplog#e4.
This admission meets Prank's first prong, the second prong of
Prank/ whether the Appellee was acting within the general scope
ofher employment is where Appellant and Appellee differ.
Appellee claims she was in her scope of employment when she
confiscated Appellant's books and failed to give him confiscation
papers when she turned the books into the Polunsky property
room. Appellee claims she was in the scope ofemployment when
she destroyed Appellant's photo album,grandmother's will* and
various legal papers by throwing theminthe trash can. Appellee
never turned the pholo album/ nor Appellant's grandmother's
will/ nor the various legal papers of Appellant's into the
Polunsky property room she destroyed them instead.
"An official acts within the scope of authority if she is
dischaging the duties generally assigned to her." city of
Lancaster v. Chambers, 883 S.W.2d 650/658(Tex.1994).
Appellee's destruction of Appellant's property during the
semi-annual shakedown is not included in the scope of her
employment, upon information and belief the T.D.CiJ- has a policy
of turning into the property room all personal property that
is taken from inmate's during shakedown.
The Texas Tort Claims Act defines the "scope of employment"
as"the performance for a government unit of the duties of an
employee's office or employment and include being in and about
the performance of a tasklawfully assigned to an employee by
competent authority." Texas Civil Practice &Remedies Code §
101.001(5). an employee's Act is not within the scope of
employment when it occurs within an independent course of conduct
not intended by the employee to serve and purpose of the employer*
Restatement (third) of agency §7.07(2). see appendix C.
In Reece v. Johnson* 2013 Tex.App.Lexis 10621* inmate William
Reece sued TDCJ correctional officers alleging a claim under
the Texas Theft Liability Act pertaining to the alleged
destruction and taking of Reece's personal property. This case
is identical to Ham's present case against Sullivan.
Sullivan's search of Ham's property was within the yeneral
scope of employment and was a lawfully assigned task* see Reece
v. Johnson*supra. Sullivan's acts of destroying Ham's property
without turning them into the Polunsky Unit property room are
acts occurring "within an independent course of conduct not
in tended by the employee to serve any purpose of the employer."
Restatement(third) of agency §7.07(2).see also Reece v. Johnson*
supra.Ham's allegations that Sullivan destroyed his property*
name the photo album* grandmother's will*and varioun's legal
papers is an arguable claim that Sullivan committed theft and
is liable under the Texas Theft Liability Act in her indivdual
capacity, see Tex. Penal Code 31.01(2)(a).*31.03(a); Reece v.
Johnson/ supra, see also Presiado v. Sheffield. 230 S.W.3d 272/
275(Tex.App.-Beaumont 2007)(inmate's TLA CLAIM AGAINST PRISON
EMPLOYEE"S IN THEIR INDIVIDUAL CAPACITIES FOR DESTROYING HIS
PERSONAL PROPERTY HAD ARYUABLE BASIS IN LAW.).
ISSUE TWO:
The question before this Court is "should the trial court
have dismissed Appellant Ham's suit against Appellee Sullivan
without allowing Appellant thirty days to cure defects pursuant
to Texas Civil Practice SRemedies Code §101.106(f)."
The answer is no of course not. The due process clause of
the 14th Amendment to the United States Constitution guarantees
due process of Law. A chance to be heard. A reading of Tex.
Civ. Prac&Rem. Code §101.106(f) shows the legisature fully
intended to give a plaintiff the oportunity to amend his
pleadings dismissing the employee and naming the governmental
unit as the defendant on orbefore the 30th day after the date
the motion is filed, see Appendix A.
10
Appellee destroyed some of Appellant's property and confiscated
some of Appellant's property, when Appellee filed a motion to
dismiss the case without giving Appellant a chance to dismiss
Appellee and name the governmental unit as defendant according
to the Tex.Civ.Practice arem.Code §101.106(f) statute.the trial
court abused it's Authority without giving Appellant a chance
to remedy the situation. Astate shall not deprive a person of
property without due process of law.Id./14th Amend, to the
U.S. Constitution.
11
PRAYER
For these reasons Appellant Ham asks this Honorable Court
to reverse and remand this ease back to the trial court so that
Appellant can take this case to a jury trial onthe merits of
whether Appellee Robin Sullivan was actinq under the scope of
employment.
12
CERTIFICATE OP SERVICE
I/Russell Ham, TDCJ ld#1104449, Pro se certify that a true
and correct copy of Appellant Russell Ham's Appellant Reply
Brief has been placed in the Allan B. Polunsky Unit's mailbox
on August 3, 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
^—.
Russell Ham,Pro se
T.D.CJ.-ID# 1104449
Polunsky Unit
3872 FM 350 South
Livingston,Texas 77351
13
APPENDIX
A-Texas Civil Practice &Remedies Code §101.106(f)
B-Texas Civil Practice SRemedies Code §101.106(5)
C-Restatement (Third) of Agency, §7.07 Employee Acting within
Scope of Employment
14
A
Texas Civil Practice & Remdies Code §101.106(f)
(f) f) If a suit is filed against an employee of a governmental
unit based on conduct within the general scope of that employee's
employment and if it could have been brought under this chapter
against the governmental unit, the suit is considered to be
against the employee in the employee's official capacity only.
On the employee's motion, the suit against the employee shall
be dismissed unless the plaintiff files amended pleadings dismiss
ing the employee and naming the governmental unit as defendant
on or before the 30th day after the date the motion is filed*
15
Texas Civil Practice & Remedies Code §101.001(5)
"SCOPE OF EMPLOYMENT" means the performance for a governmetal
unit of the duties of an employee's office or employment and
includes beinq in or about the performance of a task lawfully
assigned to an employee by competent authority.
16
Restatement (Third) of Agency
§ 7.07Employee Acting Within Scope of Employmeat
(l)An employer is saflject to vicarious liability for a tort
committed by its employee acting within the scope of employment.
C§) An employee acts within the scope of employment when
performing work assigned by the employer or engaged in a course
of conduct subject to the employerls controll. An employee's act
is hot within the scope of employment when it occurs within and
independent course of conduct not intended by the employee to
serveany purpose of the employer.
(3) For purposes of this section,
(a) an employee is an agent whose principal controls
or has the right to control the manner and means of the agent's
performance of work, and
(b) the fact that work is performed gratuitously does
not relieve a principle of liability.
9 17