                                                                                                               ACCEPTED
                                                                                                           07-15-00146CV
                                                                                             SEVENTH COURT OF APPEALS
                                                                                                       AMARILLO, TEXAS
	                                                                                                   6/1/2015 12:00:00 AM
                                                                                                         Vivian Long, Clerk


                                                No. 07-15-00146CV

                                         IN THE                   FILED IN
                                                           7th COURT
                                                                June 1,OF2015
                                                                          APPEALS
                                   COURT OF APPEALS          AMARILLO, TEXAS
                          SEVENTH DISTRICT OF TEXAS AT AMARILLO
                                                           5/31/2015 5:06:53 PM
                                                                                      VIVIAN LONG
                                                                                         CLERK
       _____________________________________________________________


                                                 MARK WALTERS,
                                                 Plaintiff/Appellant

                                                            v.

                       BRAD LIVINGSTON, in his Official Capacity
                as Executive Director, Texas Department of Criminal Justice,
                                    Defendant/Appellee


                                    On Appeal from the 200th District Court
                                             Travis County, Texas
                                      Trial Court No. D-1-GN-13-002356
                                     Honorable Rhonda Hurley, Presiding


                                                APPELLANT BRIEF


	       	  
	       	        	        	          	       	     Respectfully submitted by,

                                                         Mark Walters
                                                         P.O. BOX 28072
                                                         Austin, Texas 78755
                                                         (512)-964-4343
                                                         verusconsultingtexas@gmail.com
	       	        	        	          	       	     Appellant	  Pro	  Se	  

                           ****ORAL ARGUMENTS REQUESTES****


	  
	  


                          IDENTITIES OF THE PARTIES



       1.   MARK WALTERS                            Plaintiff/Appellant
            P.O. BOX 28072                               Pro Se
            Austin, Texas 78755
            (512)-964-4343
            verusconsultingtexas@gmail.com

       2.   BRAD LIVINGSTON                         Defendant/Appellee
            In his Official Capacity as Executive
            Director of the Texas Department of
            Criminal Justice

       3.   CRAIG JACOBS                            Counsel for Appellee
            c/o Texas Attorney General
            P.O. BOX 12548
            Austin, Texas 78711-2548
            (512) 463-2100
            craig.jacobs@texasattorneygeneral.gov

       4.   THE HONORABLE RHONDA HURLEY                   Presiding Judge
            District Judge, 98th District Court
            P.O. BOX 1748
            Austin, Texas 78767
            (512) 854-9307




	                                         ii	  
	  


                                      TABLE OF CONTENTS

       Identity of the Parties.....................................................................................ii

       Table of Contents...........................................................................................iii

       Index of Authorities........................................................................................vi

       Statement Requesting Oral Arguments.........................................................vii

       Statement of the Case......................................................................................1

       Issues Presented.............................................................................................4

       Statement of Facts...........................................................................................5

                Issue One Presented..............................................................................6
                The trial court erred in determining that Plaintiff’s
                claims were mooted for lack of standing by his
                release from prison
                         A. Texas Religious Freedom Restoration Act
                         B. Breach of Contract
                Issue Two Presented............................................................................14
                The trial court erred in determining that Plaintiff’s
                claims for damages under the Texas Religious Freedom
                Restoration Act were barred by the statute of
                limitations
                Issue Three Presented.........................................................................17
                The trial court erred in granting summary judgment
                to Defendant

       Prayer for Relief............................................................................................20

       Certificate of Service.....................................................................................21




	                                                      iii	  
	  



                                     INDEX OF AUTHORITIES

STATE CASES

Basic Capital Mgmt., Inc. v. Dynex Commercial, Inc.,
      348 S.W.3d 894, 900 (Tex.2011)..................................................................13

Bland Indep. Sch. Dist. v. Blue,
      34 S.W.3d 547, 554 (Tex.2000)...............................................................18,19

Board of Land Comm'rs v. Walling, Dall.,
     524 (Tex. 1843).............................................................................................13

Caso-Bercht v. Striker Indus.,
     147 S.W.3d 460, 463 (Tex.App.-Corpus Christi 2004, no pet.)...................18

Casso v. Brand,
      776 S.W.2d 551, 556 (Tex. 1989).................................................................17

City of Amarillo v. Martin,
       971 S.W.2d 426, 427 (Tex. 1998).................................................................13

City of Houston v. Clear Creek Basin Authority,
       589 S.W.2d 671, 678 (Tex. 1979).................................................................17

Esquivel v. Murray Guard, Inc.,
      992 S.W.2d 536, 543-44 (Tex. App.-Houston [14 Dist.]
      1999, pet. denied)..........................................................................................11

Federal Sign v. Tex. S. Univ.,
      951 S.W.2d 401, 409 (Tex. 1997)................................................................13

General Servs. Comm'n v. Little-Tex Insulation Co.,
     39 S.W.3d 591, 594 (Tex. 2001)...................................................................13

Hosner v. DeYoung,
     1 Tex. 764, 769 (1847)..................................................................................13




	                                                       iv	  
	  


Hunt v. Bass,
      664 S.W.2d 323, 324 (Tex.1984)....................................................................7

In re C.M.C.,
       192 S.W.3d 866, 874 (Tex.App.-Texarkana 2006, no pet.)..........................19

In re Pringle,
       862 S.W.2d 722, 724 (Tex.App.-Tyler 1993, no pet.)..................................18

Nixon v. Mr. Property Management Co.,
      690 S.W.2d 546, 548-49 (Tex. 1985)..........................................................18

MCI Telecomms. Corp. v. Tex. Utils. Elec. Co.,
     995 S.W.2d 647, 651 (Tex.1999).............................................................10,11

Padilla v. LaFrance,
      907 S.W.2d 454, 461 (Tex. 1995).................................................................10

Prime Products, Inc. v. S.S.I. Plastics, Inc.,
      97 S.W.3d 631, 636 (Tex.App.-Houston [1st Dist] 2002, pet. denied).........10

S. Tex. Water Auth. v. Lomas,
       223 S.W.3d 304, 306 (Tex.2007)..................................................................11

Texas A & M Univ.-Kingsville v. Lawson,
      87 S.W.3d 518, 521 (Tex. 2002)...................................................................14

Union Pac. R.R. Co. v. Novus Int'l, Inc.,
     113 S.W.3d 418, 422 (Tex.App.-Houston [1st Dist.] 2003, pet. denied)......12

Williams v. Lara,
      52 SW 3d 171, 179 (Tex 2001).......................................................................7

Winchek v. AMN. EXP.,
     232 S.W.3d 197, 202 (Tex. App.- Houston [1st Dist] - 2007).......................10




	                                                  v	  
	  


STATE LAWS, REGULATIONS & STATUTES

Texas Civil Practice and Remedies Code § 110.003(b)(1)(2)...................................6

Texas Civil Practice and Remedies Code § 110.005(a)............................................7

Texas Civil Practice and Remedies Code § 110.005(b)............................................7

Texas Civil Practice and Remedies Code § 110.005(d)............................................7

Texas Civil Practice and Remedies Code § 110.006(a)..........................................16

Texas Civil Practice and Remedies Code § 110.006(b)(2).....................................16

Texas Civil Practice and Remedies Code § 110.006(f)...........................................16

Texas Civil Practice and Remedies Code § 110.007(a)..........................................14

Texas Government Code § 501.008.........................................................................16




	                                                 vi	  
	  


             STATEMENT REQUESTING ORAL ARGUMENTS



       Despite the voluminous briefing on the part of the appellant, the judgment

below can be reversed in whole by a simple holding: the Appellant was denied a

fair and impartial hearing at summary judgment after the trial court overruled

another District Judge who had already concluded that Plaintiff/Appellant had

standing to bring suit. That is an uncontroversial conclusion that can be made

based on the arguments in the briefs, and oral arguments would significantly aid

the Court in deciding this case.




	                                     vii	  
	  


                           STATEMENT OF THE CASE


        On April 13, 1995, Jolene Yellowquill, a Native American of Ojibwa

heritage who was confined at a TDCJ unit in Gatesville, Texas, filed suit for

injunctive relief in the United States District Court for the Southern District of

Texas, Houston Division, seeking that TDCJ be required to provide sacred pipe

ceremonies to Native American adherents confined within the TDCJ.

        On May 22, 1997, the Houston district court granted Yellowquill's motion

for a temporary restraining order permitting her to smoke the sacred pipe.

        The parties reached a settlement in the litigation.

        Although YELLOWQUILL involved only one inmate, the resulting

settlement agreement served as the basis for the TDCJ implementing certain

policies to address the practices of the Native American faith, including smoking

the pipe. Under the terms of the settlement agreement in YELLOWQUILL, TDCJ

agreed to permit all NA's the ability to personally smoke the sacred pipe during

religious ceremonies.

        In 2011, TDCJ officials made the decision to no longer allow Native

American inmates the right to personally smoke the sacred pipe. This decision was

made on the heals of litigation from inmate William Chance, who challenged

TDCJ’s NA religious policy seeking his own personal prayer pipe. On October 12,

2012,                                      the                               TDCJ

	                                          1	  
	  


Chaplaincy Division issued a memorandum advising all NA Chaplains that

“effective immediately.... [t]he contract Native American chaplain or authorized

Native American volunteer will be the only individual allowed to smoke the pipe.”

       The Native American Plaintiffs were forced to bring this lawsuit to protect

their constitutional rights—and, surprisingly, they lost, because the protected

religious conduct at issue is obviously an infringement on an almost two-decade-

old settlement agreement that conformed to the constitutional rights of all of the

Plaintiffs involved, including the Appellant. As a result of the ruling below, the

Appellant was not allowed to recover damages for the infringement of his religious

rights to personally smoke the sacred pipe during NA religious ceremonies during

his incarceration in the years 2012 thru 2014.

       The government’s ban on Appellant’s ability to practice his sincerely held

Native American religious belief while he was incarcerated; a tactic used to defeat

litigation by another inmate wishing to possess his own personal prayer pipe- a

strategy that, if accepted by this Court, would only lead to the prohibition of any

religious activity or sincerely held religious devotional items, casting further doubt

on the governments professed desire to allow inmates the ability to freely worship

in a meaningful manner.

       Under the state law claims for damages under the Texas Religious Freedom

Restoration Act and for Breach of Contract, the trail court erred and the only



	                                        3	  
	  


reasonable action is for this Court to reverse the trial court’s judgment in whole

and remand that a trial on the merits be heard.



                        ISSUES PRESENTED ON APPEAL

       1.    Did the trial court erred in determining that Plaintiff’s
             claims were mooted for lack of standing by his
             release from prison
                     A. Texas Religious Freedom Restoration Act
                     B. Breach of Contract
       2.   Did the trial court erred in determining that Plaintiff’s claims for
            damages under the Texas Religious Freedom Restoration Act were
            barred by the statute of limitations

       3.   Did the trial court erred in granting summary judgment
            to Defendant




	                                        4	  
	  


                           STATEMENT OF FACTS


       Appellant is Native American and a former inmate of the Texas Department

of Criminal Justice (TDCJ). Appellant filed suit, along with 42 other Native

American inmates alleging that Appellee violated Plaintiff’s rights under the First

and Fourteenth Amendment of the United States Constitution by denying

Plaintiff’s access to personally smoke the sacred ceremonial pipe during religious

ceremonies. (CR 1: 6-32). Appellant and the other Plaintiffs, also alleged state law

violations of the Texas Religious Freedom Restoration Act.

       Appellant was discharged from TDCJ on June 13, 2014. On July 15, 2014,

Appellee filed a Plea to the Jurisdiction arguing that Appellant’s release from

prison denied him standing to prosecute his claims. (CR 1: 62-70) Appellant file a

response to Appellee’s plea, and a hearing was held before Judge Joseph Hart.

Judge Hart DENIED Appellee’s plea on Appellant’s claims under the Texas

Religious Freedom Restoration Act claim for damages. (CR 1: 82-83). Appellant

file a SECOND AMENDED PETITION adding the claim of breach of contract, in

relationship to a settlement agreement that the TDCJ entered into with former

inmate Jolene Yellowquill granting Native American inmates the right to

personally      smoke         the      sacred      pipe       during       religious

ceremonies. (CR 1: 84-101).




	                                       5	  
	  


       Appellee filed for summary judgment and Appellant filed his response. A

hearing was conducted before The Honorable Rhonda Hurley on December 18,

2014, where Judge Hurley only heard testimony on Appellee’s defense that

Appellant did not have standing for his claims for damages under the Texas

Religious Freedom Restoration Act or for Breach of Contract. On February 6,

2015, the District Court issued ORDER granting Appellee’s motion for summary

judgment and dismissing Appellant’s suit with prejudice. (CR 1: 555). Appellant

timely filed his Notice of Appeal. (CR 1: 560-561).



                                   ARGUMENT



Restatement of Issue One: The trial court erred in determining that Plaintiff’s
                          claims were mooted for lack of standing by his
                          release from prison

                         ARGUMENT & AUTHORITIES

A. Texas Religious Freedom Restoration Act
                 The Texas Religious Freedom Restoration Act – TRFRA - states
       that a government agency may not substantially burden a person's free
       exercise of religion unless it (1) is in furtherance of a compelling
       governmental interest; and (2) is the least restrictive means of furthering that
       interest. Texas Civil Practice and Remedies Code § 110.003(b)(1)(2). Any
       person, other than a government agency, who successfully asserts a claim or
       defense under this chapter is entitled to recover (1) declaratory relief under


	                                         6	  
	  


       Chapter 37; (2) injunctive relief to prevent the threatened violation or
       continued violation; (3) compensatory damages for pecuniary and
       nonpecuniary losses; and (4) reasonable attorney's fees, court costs, and
       other reasonable expenses incurred in bringing the action. Id. § 110.005(a).
       Compensatory damages awarded under Subsection (a)(3) may not exceed
       $10,000 for each entire distinct controversy. Id. (b). A person may not bring
       an action for damages or declaratory or injunctive relief against an
       individual, other than an action brought against an individual acting in the
       individual's official capacity as an officer of a government agency. Id. (d).
                 On July 15, 2015, Appellee filed “this plea to the jurisdiction
       challenging subject matter jurisdiction on the basis of no standing and
       mootness.” (CR at 63). A hearing was conducted in the District Court on
       July 31, 2014, where the parties argued their position. Appellees maintained
       their position that due to Plaintiff’s release from prison, he no longer had
       standing under the TRFRA for declaratory, injunctive, or compensatory
       relief. (CR at 69-70). Plaintiff conceded that due to his release from prison,
       Article III standing under the United States Constitution prevented him from
       obtaining the requested declaratory or injunctive relief, but he still retained
       standing for compensatory relief as provided by the TRFRA.
                 As a general rule of Texas law, to have standing, unless it is
       conferred by statute, a plaintiff must demonstrate that he or she possesses an
       interest in a conflict distinct from that of the general public, such that the
       defendant's actions have caused the plaintiff some particular injury. Williams
       v. Lara, 52 SW 3d 171, 179 (Tex 2001)(quoting Hunt v. Bass, 664 S.W.2d
       323, 324 (Tex.1984).
                 Due to the legislatures waiver of immunity from suit and
       permitting a Plaintiff compensatory relief, Plaintiff maintained standing for

	                                         7	  
	  


            economic recovery for violation of his religious rights. The District Court,
            Presided by Judge Hart, agreed with this argument and denied Appellees
            motion for plea to the jurisdiction due to mootness and lack of standing. (CR
            at 82, 83).
                          Forward, to summary judgment before District Judge Rhonda
            Hurley, Appellees presented the same argument that was denied during their
            plea to the jurisdiction. For this reason, this issue should be remanded back
            to the District Court.


       B. Breach of Contract
            In 1998, former TDCJ inmate Jolene Yellowquill, entered into a settlement

       agreement with Defendant TDCJ where Defendant is required to conduct the

       [NA] Sacred Pipe Ceremony twice a month, and stipulating “inmates participating

       in the Sacred Pipe Ceremony will be permitted to smoke ceremonial tobacco.”

       (CR at 330). In 2011, Appellee’s NA sacred pipe ceremony policy was to allow

       NA inmates to smoke from a communal pipe. Inmate William Chance filed suit

       against Appellee, after being denied the right to smoke from a personal pipe,

       instead of the communal pipe, which was a violation of the YELLOWQUILL

       settlement. (CR at 330). In retaliation for the Chance lawsuit, Appellee disguised a

       way to deny all NA inmates the ability to personally smoke the sacred pipe, by

       claiming that smoking from a communal pipe was a health risk. (CR at 145-147).

       Moreover, during summary judgment of the Chance case, TDCJ argued that

       allowing   NA      inmate’s   personal   prayer   pipes,   as   stipulated   in   the

	                                              8	  
	  


       YELLOWQUILL settlement, was too costly. (CR at 162-163). On October 12,

       2012, Marvin Dunbar, of the TDCJ Chaplaincy Division, issued a memorandum

       to all Native American chaplains stating, “the contract Native American chaplain

       or authorized Native American volunteer will be the only individual allowed to

       smoke the pipe.” (CR at 220), thereby creating an official policy that breached the

       YELLOWQUILL settlement. Appellant was a third party beneficiary to the

       YELLOWQUILL settlement, as outlined in the agreed stipulation that “This

       agreement in no way modifies or alters TDCJ's right to deny the ceremony to Ms.

       Yellowquill or any other inmate should their custodial classification change to a

       level in which inmates are not permitted to attend religious services.” (CR at 330).

       Moreover, “Inmates participating in the Sacred Pipe Ceremony will be permitted

       to smoke ceremonial tobacco. It is expected that the amount of ceremonial

       tobacco allowed to each inmate will not exceed one teaspoon per inmate, per

       ceremony. The inmates will be required to purchase their own individual pipes,

       and must follow the proper procedure for such purchase. Each inmate's pipe shall

       be maintained by the chaplain or another designated TDCJ employee at the unit.

       At no times will inmates be allowed to possess or have access to the pipes in their

       cell.” (CR at 330).




	                                             9	  
	  


            Appellant, as a third party beneficiary to the YELLOWQUILL settlement,

       raised in his Second Amended Petition a claim for Breach of Contract and

       damages for said breach. (CR at 93 & 99).

            A settlement agreement is simply a contract between the parties; a breach of

       settlement agreement cause of action is identical to a breach of contract cause of

       action. See Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex. 1995). To establish a

       breach of contract, [Plaintiff] is required to prove the existence of a valid contract,

       his performance or tendered performance under the contract, breach of the

       contract by [Defendant], and damages sustained as a result of the breach. Winchek

       v. AMN. EXP., 232 S.W.3d 197, 202 (Tex. App.- Houston [1st Dist] - 2007). On a

       breach of contract claim, Amex was required to prove, as a matter of law, the

       essential elements of a breach of contract claim: (1) the existence of a valid

       contract; (2) performance or tendered performance by the plaintiff; (3) breach of

       the contract by the defendant; (4) damages sustained as a result of the breach.

       Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex.App.-

       Houston [1st Dist] 2002, pet. denied).

            A third party may enforce a contract it did not sign when the parties to the

contract entered the agreement with the clear and express intention of directly

benefitting the third party. MCI Telecomms. Corp. v. Tex. Util. Elec. Co., 995

S.W.2d 647, 651 (Tex .1999). A third party may sue to enforce a contract as a



	                                              10	  
	  


third-party beneficiary only if the contracting parties entered into the contract

directly and primarily for the third party's benefit. S. Tex. Water Auth. v. Lomas,

223 S.W.3d 304, 306 (Tex.2007); Esquivel v. Murray Guard, Inc., 992 S.W.2d

536, 543-44 (Tex. App.-Houston [14 Dist.] 1999, pet. denied). There are three

types of third-party beneficiaries-donee, creditor, and incidental. Donee and

creditor beneficiaries may bring suit to enforce a contract; incidental beneficiaries

may not. Esquivel, 992 S.W.2d at 543. A person is a donee beneficiary if the

performance of the contract inures to his benefit as a gift. A person is a donee

beneficiary only if a donative intent expressly or impliedly appears in the contract.

Id. A party is a creditor beneficiary if no intent to make a gift appears from the

contract, but performance will satisfy an actual or asserted duty of the promisee to

the beneficiary, such as an indebtedness, contractual obligation, or other legally

enforceable commitment to the third party, and the promisee must intend that the

beneficiary will have the right to enforce the contract. Id. at 543-44. "The intent to

confer a direct benefit upon a third party `must be clearly and fully spelled out or

enforcement by the third party must be denied.'" Lomas, 223 S.W.3d at 306

(quoting MCI Telecomms. Corp. v. Tex. Utils. Elec. Co., 995 S.W.2d 647, 651

(Tex.1999)).

       From the express language in the YELLOWQUILL settlement agreement,

Appellant is a pure donee and a creditor beneficiary to all of the rights assigned to



	                                       11	  
	  


Yellowquill, as are all other NA inmates that became beneficiaries to Native

American Sacred Pipe Ceremonies within the TDCJ, per the agreement.

Yellowquill was released from custody in 2001, yet Appellee did not alter or

rescind any parts of the agreement upon her release. The only changes came upon

the heals of litigation by NA inmate William Chance who requested his own

personal prayer pipe, per the agreement.

       The rights of the settlement agreement clearly stipulates to be all inclusive

for all NA inmates, and makes no provisions that upon Yellowquill’s release from

TDCJ, that the agreement becomes null and void. The parties of the settlement

agreement intended to secure a benefit to the third party [Appellant] and all NA

inmates otherwise TDCJ would be faced with a multitude of lawsuits by NA

inmates if they bestowed Sacred Pipe Ceremonies upon only one inmate,

Yellowquill, and not other NA inmates.

       Due to the presumption against finding third-party beneficiaries to contracts,

courts will generally deny third-party-beneficiary claims unless: (1) the obligation

of the bargain-giver is fully spelled out, (2) it is unmistakable that a benefit to the

third party was within the contemplation of the contracting parties, and (3) the

contracting parties contemplated that the third party would be vested with the right

to sue for enforcement of the contract. Union Pac. R.R. Co. v. Novus Int'l, Inc., 113

S.W.3d 418, 422 (Tex.App.-Houston [1st Dist.] 2003, pet. denied). The Texas



	                                         12	  
	  


Supreme Court has reasoned that, because the intention to confer a direct benefit to

a third party must be clearly and fully spelled out in the contract for that party to

have standing as a third-party beneficiary, “a presumption exists that parties

contracted for themselves unless it clearly appears that they intended a third party

to benefit from the contract.” Basic Capital Mgmt., Inc. v. Dynex Commercial,

Inc., 348 S.W.3d 894, 900 (Tex.2011).

       Due to the State’s willful intention of entering into a contract in the

YELLOWQUILL settlement, the State waived immunity for further action should

they violate the terms of the settlement agreement. In Texas, the bar of sovereign

immunity is a creature of the common law and not of any legislative enactment.

Hosner v. DeYoung, 1 Tex. 764, 769 (1847) (recognizing doctrine, without citation

of authority); Board of Land Comm'rs v. Walling, Dall. 524 (Tex. 1843)

(recognizing doctrine, without citation of authority); City of Amarillo v. Martin,

971 S.W.2d 426, 427 (Tex. 1998)(referring to "the common law doctrine of

sovereign immunity"). The Texas Supreme Court has held that a governmental

entity by entering into a contract waives immunity from liability for breach of the

contract but does not, merely by entering into a contract, waive immunity from

suit. General Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.

2001); Federal Sign v. Tex. S. Univ., 951 S.W.2d 401, 409 (Tex. 1997)). Because

the Legislature has waived immunity from suit for violations of the TRFA, which



	                                       13	  
	  


was one of Appellant’s claims in this suit against the TDCJ and his only claim for

damages that survived the TDCJ’s plea to the jurisdiction. (CR at 83). Appellant is

therefore entitled to sue the TDCJ for violating the statute and if he prevails, to

hold the Appellee liable. See Texas A & M Univ.-Kingsville v. Lawson, 87 S.W.3d

518, 521 (Tex. 2002).

         For the above reasons, and the context within the YELLOWQUILL

settlement, Appellant was an intended third party beneficiary of the Native

American Pipe Ceremony as spelled out in the settlement, and Appellee breached

his duty to permit Native American Appellant to personally smoke the Sacred Pipe

during part of his incarceration. This issue should be remanded back to the District

Court.



Restatement of Issue Two: Did the trial court erred in determining that Plaintiff’s
                        claims for damages under the Texas Religious Freedom
                        Restoration Act were barred by the statute of limitations

         Appellant’s second issue is that the District Court erred in determining that

Plaintiff’s claims for damages under the TRFRA was barred by the statute of

limitations pursuant to Texas Civil Practice and Remedies Code § 110.007.

Section 110.007(a) states a person must bring an action to assert a claim for

damages under this chapter not later than one year after the date the person knew




	                                         14	  
	  


or should have known of the substantial burden on the person's free exercise of

religion.

       Appellant testified at summary judgment that he was assigned to the Native

American designated Stevenson Unit in Cuero, Texas from December 2011, until

April 2012, where he had access to a NA Chaplain, religious services, devotional

items, and other religious items permitted on the designated unit strictly for the

purpose of accommodating NA inmates.              In March 2012, Appellant, while

assigned to the Stevenson Unit, participated in the Spring Equinox feast and pipe

ceremony, where he personally smoked from the ceremonial pipe. The District

Court took notice of this testimony. Appellant was transferred from the Stevenson

Unit on or about April 2, 2012, to the non-Native American Allred Unit, where he

had no access to a NA Chaplain or volunteer, no access to sacred pipe ceremonies,

or other NA devotional item that are only permitted on NA designated units. This

breach of Appellant’s right to access to religion is a matter that is currently

pending in the U.S. Federal Courts. Upon filing his federal suit, Appellee

transferred Plaintiff on or about January 4, 2013, back to a NA designated unit. It

was at this time Appellant was first informed that NA inmates could no longer

smoke from the ceremonial sacred pipe during pipe ceremonies. Plaintiff filed his

cause of action under the TRFRA on July 11, 2013, approximately 188 days after

first receiving notice of the change of the NA pipe policy.



	                                       15	  
	  


       A person may not bring an action to assert a claim under this chapter

[TRFRA] unless, 60 days before bringing the action, the person gives written

notice to the government agency by certified mail, return receipt requested: Id.

110.006(a). A person who complies with an inmate grievance system as required

under Section 501.008, Government Code, is not required to provide a separate

written notice under Subsection (a). Id. (f). Moreover, a claimant may bring an

action for declaratory or injunctive relief and associated attorney's fees, court costs,

and other reasonable expenses, if the person was not informed and did not

otherwise have knowledge of the exercise of the governmental authority in time to

reasonably provide the notice. Id. (b)(2).

       The District Court was well aware that Appellant, who testified under oath,

that he did not receive notice of the change of the pipe policy until January 2013.

Moreover, Appellant directed the Court’s attention to Plaintiff’s Response in

Opposition to Defendant’s Motion for Summary Judgment, Exhibit 7, where

TDCJ’s Chaplaincy Department officially notified all TDCJ NA Chaplains that

“Effective immediately offenders participating in the Native American Pipe service

will be allowed to handle the pipe prior to its lighting.” (CR at 349). Moreover, this

memorandum to the chaplains, dated 10-12-12, notifies “The contract Native

American chaplain[s] or authorized Native American volunteer[s] will be the only

individual[s] allowed to smoke the pipe.” (CR at 349). Even using the date of



	                                           16	  
	  


October 12, 2012 as the start date of the new policy, Appellant filed his suit

approximately 211 days after Appellees officially instituted the new policy, giving

Appellant an additional 92 days to file suit should he had needed it.

          Due to Appellant’s lack of knowledge that a change was imminent regarding

the NA sacred pipe policy because of his assignment to a non-NA unit, and the fact

that the NA chaplains were not give official notice as to when the new policy

would be enacted, Appellant timely filed his suit within the one year statute of

limitations period and for this reason, and the reasons stated above, this issue

should be remanded back to the District Court.


Restatement of Issue Three: Did the trial court erred in granting summary
                            judgment to Defendant

       Summary judgments are governed by Tex. R. Civ. P. 166a. Under this rule, a

court may render a summary judgment if "there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law." Tex.

R. Civ. P. 166a(c). Thus, the courts frequently reiterate the stringent legal standards

for obtaining a summary judgment. For example, the courts often state that a

movant must conclusively prove all the essential elements of his cause of action as

a matter of law. E.g., City of Houston v. Clear Creek Basin Authority, 589 S.W.2d

671, 678 (Tex. 1979). Further, the non-movant never has a burden of proof unless

and until the moving party has met his burden. E.g., Casso v. Brand, 776 S.W.2d



	                                        17	  
	  


551, 556 (Tex. 1989). It is also said that every reasonable inference is indulged in

favor of the non-movant, and any doubts are resolved in his favor. E.g., Nixon v.

Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

       The District Court never heard arguments or reviewed evidence regarding

summary judgment.      During the brief, twenty -20 minute hearing, the only

arguments presented was whether Appellant had standing under the TRFRA and

his Breach of Contract claim to bring suit. The first, being the TRFRA standing,

was already settled by Appellee’s plea to the jurisdiction being denied regarding

Appellant’s standing under this statute. (CR at 62-70, 83). Secondly, Appellant

provided testimony and evidence that he maintained standing regarding Appellee’s

argument that Appellant filed suit outside of the appropriate statute of limitations

under the TRFRA. (CR at 349). There was a genuine issue of material fact that

Appellant had the requisite standing to defeat Appellee’s motion for summary

judgment. Being that the court heard no argument regarding the facts of the case,

but only on standing, the District Court erred in granting Appellee summary

judgment.

       While the issue of standing can be brought in the form of a summary

judgment, standing can also be raised by other procedural means.      Bland Indep.

Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000);   see In re Pringle, 862 S.W.2d

722, 724 (Tex.App.-Tyler 1993, no pet.);    cf. Caso-Bercht v. Striker Indus., 147



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S.W.3d 460, 463 (Tex.App.-Corpus Christi 2004, no pet.) (standing challenged by

summary judgment). The Texas Supreme Court has specifically authorized

standing to be challenged through a plea to the jurisdiction.   See Blue, 34 S.W.3d

at 554. A decision concerning whether a party has standing is not a decision

deciding the merits of a case. See Blue, 34 S.W.3d at 554. Standing, as a

component of subject-matter jurisdiction, can be challenged by procedural means

other than summary judgment. In re C.M.C., 192 S.W.3d 866, 874 (Tex.App.-

Texarkana 2006, no pet.) (holding decision concerning whether a party has

standing is not a decision deciding the merits of a case).

       For the reasons stated above, the District Court erred in deciding summary

judgment based on Appellant’s standing. Appellant has the required standing to

pursue his case under the TRFRA, and for Breach of Contract, and summary

judgment in favor of Appellee was erroneous. The Court heard no arguments to

decide whether there are genuine issues of material facts regarding the merits of

Appellant’s claims, and therefore, this case should be remanded back to the

District Court.




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                                     PRAYER

       WHEREFORE, PREMISES CONSIDERED, Appellant respectfully

prays that this Honorable Court hears Appellant’s issues, and remands this case

back to the District Court for further proceedings.



                                       Respectfully submitted,

                                        /s/ MARK WALTERS
                                       Mark Walters
                                       P.O. BOX 28072
                                       Austin, Texas 78755
                                       (512)-964-4343
                                       verusconsultanttexas@gmail.com




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                           CERTIFICATE OF COMPLIANCE

       I certify that this document was produced on a computer using Microsoft Word

For Mac 2011 and contains 4,089 words, as determined by the computer software's

word-count function, excluding the sections of the document listed in Texas Rule of

Appellate Procedure 9.4(i)(1).

                                               /s/ MARK WALTERS
                                               Mark Walters



                           CERTIFICATE OF SERVICE

       I certify that on June 1, 2015, I served a copy of the APPELLANT’S BRIEF, on

Appellee’s counsel of record, Assistant Attorney General Craig Jacobs by electronic

service - EFILE.TXCOURTS.GOV - and that the electronic transmission was reported

as complete.



                                               /s/ MARK WALTERS
                                               Mark Walters




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