Richard Lares v. Karina Guevara

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: