Richard Lares v. Karina Guevara

• Court: Court of Appeals of Texas
• Decided: August 3, 2020
• Docket: 04-19-00541-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas August 3, 2020

No. 04-19-00541-CV

Richard LARES, Appellant

v.

Karina GUEVARA, Appellee

From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2016-CI-12518 Honorable Michael E. Mery, Judge Presiding

ORDER

Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

This is an appeal from an order dismissing appellant’s suit for want of prosecution. Appellant, a pro se inmate, has represented in a sworn statement to this court that he sent a response to the trial court’s dismissal notice, and has provided a copy of what he swears is a true and correct copy of his response. The response is not in the appellate record, and the trial court clerk has represented to this court that appellant’s response was never received by the clerk for filing.

Under the “prison mailbox rule,” a pro se inmate is deemed to have “filed” a document at the time the document is duly received by prison officials. Enriquez v. Livingston, 400 S.W.3d 610 (Tex. App.—Austin 2013, pet. denied). A certificate of service can constitute some measure of proof of filing under the prison mailbox rule. Id. However, the certificate is not conclusive proof. TEX. R. APP. P. 9.2(b)(2).

We therefore abate this appeal and remand to the trial court for an evidentiary hearing for the trial court to determine whether, and when, appellant handed his response to prison officials for mailing and filing in this case. We remand with instructions for the trial court to make specific findings on the following two questions: 1. Did appellant give the attached filing to prison officials? 2. If so, on what date did appellant give the attached filing to prison officials?

We ORDER the trial court to make findings on these questions, and file a copy of a written findings of fact with the district court clerk within 30 days of this order. We further ORDER the district court clerk to file a supplemental clerk’s record containing the trial court’s written findings within 10 days of the date the trial court files the written findings.

PER CURIAM

ATTESTED TO: