                                  NO.    12-15-00027-CV
                                                                                     FILED IN COURT OF APPEALS
                             IN    THE   COURT          OF    APPEALS                  12th Court of Appeals District

                        TWELFTH    COURT       OF       APPEALS   DISTRICT
                                                                                             \m - h 2015
                                        TYLER,          TEXAS
                                                                                            TYLER TEXAS
KENNETH     CRISSUP                                 %
                                                               APPEAL   FROM   THE   3£AW S. LUSK, CLERK
APPELLANT                                           §

V.                                                  §         JUDICIAL    DISTRICT     COURT


WILLIAM STEPHENS,TODD A.                            §
FOXWORTH,PAMELA KIRKPATRICK,                        §
                                                               ANDERSON   COUNTY,TEXAS
EBONI BROWN,DR.         GARY WRIGHT,                §
LISA GARRETT,ADN UNKNOWN                            §
OFFICER                                             §

                                 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
