Enriquez v. Livingston

MOTION FOR REHEARING

The State has filed a motion for rehearing in which it argues that we erred *621 in sustaining Enriquez’s third issue because his motion to reinstate was not timely filed. Under the procedures required by Rule 165a(3), which apply to all motions to reinstate, a motion to reinstate must be “filed with the clerk within 30 days after the order of dismissal is signed.” Tex.R. Civ. P. 165a(3). Here, the trial court’s dismissal order was signed on August 24, 2011, and Enriquez certified that he placed his motion to reinstate in the prison mail system on September 23, 2011, the last day to file the motion. The motion bears the district clerk’s file-stamped date of October 12, 2011. In our original opinion, we rejected, without discussion, the State’s argument in its amicus brief that the trial court could have disbelieved the delivery date stated in Enriquez’s certification, thereby obligating this Court to presume an implied finding by the trial court that Enriquez’s motion to reinstate had not in fact been placed in the prison mail system on September 23 and therefore was untimely. The State argues in its motion for rehearing that our prior opinion “legislates from the bench” and effectively holds that the trial court is obligated to take as true any inmate statement regarding the date on which he placed a pleading in the outgoing prison mailbox. We make no such holding. We hold only that once the inmate has provided adequate proof of the date he toned his court pleading over to prison authorities for mailing, the burden shifts to the opposing party to rebut the inmate’s evidence.

The Texas Supreme Court has adopted a “prisoner mailbox rule” for court filings by pro se inmates. That rule deems their petitions filed with the clerk of the court “at the time the prison authorities duly receive the document to be mailed.” Warner v. Glass, 135 S.W.3d 681, 684 (Tex.2004); see also Ramos v. Richardson, 228 S.W.3d 671, 673-74 (Tex. 2007) (extending mailbox rule to civil suits filed by pro se inmates outside of context of Inmate Litigation Act, Tex. Civ. Prac. & Rem.Code Ann. §§ 14.001-.014 (West Supp.2012)). The Texas Court of Criminal Appeals has also adopted the prisoner mailbox rule. See Campbell v. State, 320 S.W.3d 338, 344 (Tex.Crim.App.2010) (adopting mailbox rule for pro se inmate filings in criminal appeals). In Ramos , the supreme court held that an inmate has the burden of providing “some measure of proof’ regarding the date that he toned his pleading over to prison authorities for mailing. 228 S.W.3d at 673 . There, the supreme court accepted as sufficient proof statements contained in the filing letter and certificate of service accompanying Ramos’s petitions regarding the date he gave the documents to the prison authorities to be mailed. Id.

In the present case, Enriquez included in his motion to reinstate a “mailbox filing verification” reciting the date he says he placed the motion into the prison mail system. In addition, the certificate of service attached to the motion recites the same date, September 23, 2011. The trial court clerk filed Enriquez’s motion nineteen days later. As the State points out, Enriquez might have been able to take further steps to confirm the date he mailed his motion, such as by requesting a mailing verification from the Department or a certificate of mailing from the U.S. Postal Service. Nonetheless, we think that a dated certificate of service combined with a “mailbox filing verification” constitutes “some measure of proof’ entitling him to the benefit of the “prisoner mailbox rule.” 6 *622 See id.; Wanzer v. Longoria, No. 04-05-00490-CV, 2006 WL 1814305 , at ⅜2 (Tex. App.-San Antonio July 5, 2006, pet. denied) (mem. op.) (“In his verified motion to vacate the dismissal order, Wanzer again states he delivered his petition to prison officials on April 7, 2004. Therefore, under Warner , the trial court erred in dismissing Wanzer’s suit as untimely filed.”); Witherspoon v. Johnson, No. 04-04-00371-CV, 2004 WL 2803410 , at *1 (Tex.App.-San Antonio Dec. 8, 2004, no pet.) (mem. op.) (“Because the uncontroverted evidence indicates Witherspoon’s claim was timely received by the proper prison authority, we hold Witherspoon’s claim was timely filed.”).

We understand the supreme court’s holding in Ramos to mean that once the inmate has provided “some measure of proof’ that he placed his petition in the hands of prison authorities for mailing on or before the date it was due to be filed, the burden shifts to the State to offer rebuttal evidence. Ramos, 228 S.W.3d at 673 . Here, the State offered no rebuttal evidence, despite the apparent ease with which it could have shown the date Enri-quez delivered his motion to reinstate to prison officials:

As for concerns about increasing disputes and uncertainty over when a filing occurred, the [United States Supreme] Court recognized that “[t]he pro se prisoner does not anonymously drop his notice of appeal in a public mailbox — he hands it over to prison authorities who have well-developed procedures for recording the date and time at which they receive papers for mailing and who can readily dispute a prisoner’s assertions that he delivered the paper on a different date.” “Because reference to prison mail logs will generally be a straightforward inquiry, making filing turn on the date the pro se prisoner delivers the notice to prison authorities for mailing is a bright-line rule, not an uncertain one.”

Campbell, 320 S.W.3d at 342 -43 (quoting Houston v. Lack, 487 U.S. 266, 275 , 108 S.Ct. 2379 , 101 L.Ed.2d 245 (1988)).

The State argues, however, that the trial court, as fact-finder, was authorized to disbelieve Enriquez on the basis, for example, that his motion took longer than some other filings to reach the trial court and that Enriquez did not offer an explanation for the delay. We disagree. Texas courts adopted the prisoner mailbox rule precisely because the “unique circumstances” of incarceration make it difficult if not impossible for a pro se inmate to monitor his filing once he turns it over to prison authorities for mailing, determine the source of a delay, or take steps to remedy it. 7 Campbell, 320 S.W.3d at 343-44 . In sum, we hold that because the proof offered by *623 Enriquez was adequate under the standard announced by the supreme court, and because the State offered no evidence to rebut that proof, the motion to reinstate was timely under the prisoner mailbox rule.

CONCLUSION

Having sustained Enriquez’s third issue, we reverse the trial court’s judgment of dismissal and remand the cause to that court for further proceedings consistent with this opinion.

Dissenting Opinion by Justice PEMBERTON.

. We express no opinion as to whether a lesser amount of proof might have been sufficient.

. The State cites to several inmate-litigation cases in which the delay between the purported date of mailing and the date of receipt by the court clerk was substantially longer and implies that our holding could contribute to inmate-caused delays in resolving litigation with finality. We think the State’s concerns are overstated; two of the cited cases involved wholly unsupported allegations that prison or court officials obstructed the timely filing of the inmate's petitions, and none of them appear to have included any certificate of service or a mailbox verification. See Trevino v. Ravenburg, No. 10-11-00245-CV, 2012 WL 1435188 , at *3 (Tex.App.-Waco Apr. 25, 2012, pet. struck) (mem. op.); Hornee v. Fondren, No. 02-05-00063-CV, 2006 WL 416973 , at *2 (Tex.App.-Fort Worth Feb. 23, 2006, no pet.) (mem. op.); Hardy v. Villereal, No. 14-04-00821-CV, 2006 WL 771880 , at *1 (Tex.App.-Houston [14th Dist.] Mar. 28, 2006, no pet.) (mem. op.). In any event, we express no opinion as to whether the length of delay alone could, under the right circumstances, be enough to raise a fact issue regarding the veracity of an inmate’s statement. We hold only that in this case a delay of 19 days does not, by itself, constitute sufficient evidence to rebut Enriquez’s verification.