                           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.




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