                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-16-00109-CV


THOMAS FLORENCE                                      APPELLANT

                                       V.

MARTINAY DAVENPORT III;                              APPELLEES
JAMES STIVERS, GRIEVANCE
INVESTIGATOR; JAMES ANDERS,
ASSISTANT WARDEN; MARK
ROTH, STEP II GRIEVANCE
INVESTIGATOR; TDCJ-CID

                                    ----------

          FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
                     TRIAL COURT NO. 183,643-B



                                    ----------

                         MEMORANDUM OPINION1

                                    ----------




    1
        See Tex. R. App. P. 47.4.
      Appellant Thomas Florence, an inmate, appeals the dismissal of his civil

suit for failure to comply with Chapter 14 of the Texas Civil Practice and

Remedies Code. We affirm.

                                 BACKGROUND

      As we understand Florence’s complaint, Officer Martinay Davenport filed a

false report against him for masturbating in public after she allegedly saw him

masturbating at his cell door and later falsely testified against him at a hearing.

After the hearing, the hearing officer found Florence not guilty based upon

conflicting testimony and a video that failed to show him at his cell door.

      Thereafter, Florence filed a Step I grievance against Officer Davenport for

filing a false report, for giving false testimony, and for misconduct.        James

Stivers, the Step I grievance investigator, whose signature on the Step 1

“Offender Grievance Form” is not legible but whose investigator identification

number (investigator # I0894) is, took no action because Florence “did not

receive a disciplinary case” and because “Officer Davenport stated that she did

not write a case.”

      Florence then filed a Step II grievance against Stivers and Officer

Davenport. Florence maintained that Stivers was covering up for the prison staff

because Florence had spoken to Officer Davenport, who had told him that no

grievance investigator had spoken to her. Florence further asserted that Officer

Davenport had denied telling any grievance investigator that she had not charged

him. Mark Roth, the Step II grievance investigator, ruled as follows:


                                         2
      Your Step 1 grievance investigation and response have been
      reviewed by this office and appears to be appropriate and correct.
      Records indicate you were at your cell door when Officer
      [Davenport] turned on the light and saw you masturbating. No new
      evidence [w]as found to support your claims of misconduct by Officer
      Davenport or that you were written a false case. Further action is
      unwarranted at this time.

      Florence responded by filing a petition, which he calls a “Civil Complaint,”

in district court. He attached the “TDCJ Disciplinary Report and Hearing Record”

to his “Civil Complaint.” Florence sued Appellees Officer Davenport, Stivers,

Roth, Assistant Warden James Anders, and TDCJ-CID.

      On January 7, 2016, Appellees filed a “Motion to Dismiss Pursuant to

Chapter 14.” “Chapter 14” refers to Chapter 14 of the civil practice and remedies

code, which applies to civil suits in which an “affidavit or unsworn declaration of

inability to pay costs is filed by the inmate.”2 Florence was attempting to proceed

as an indigent.     On the same date, the trial court ordered Florence’s claims

dismissed with prejudice for failure to comply with Chapter 14.

                                   ARGUMENT

      In one issue, Florence argues that the trial court abused its discretion by

adopting Appellees’ misrepresentations and granting their motion to dismiss.

Florence’s brief addresses many of the points that Appellees raised in their

motion to dismiss. Florence’s brief does not, however, address the one point

Appellees raised that interests us—whether he filed his suit “before the 31st day


      2
          Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (West Supp. 2016).


                                         3
after the date” he received the ruling in his Step II grievance, as required by

section 14.005(b).3

      In their motion to dismiss, Appellees asserted a series of arguments in

which they contended that Florence had not complied with Chapter 14. One of

their arguments was that Florence, after receiving the written decision on his

Step II grievance, failed to file his suit “before the 31st day after the date [he]

receive[d] the written decision.”4 Appellees maintained that Florence received

the Step II grievance result on October 5, 2015, but he did not file his suit until

November 23, 2015, which was not timely.5

      Our review of the record shows that Roth made his Step II grievance

response on October 5, 2015. The Step II “Offender Grievance Form” does not

show when Florence received it. In Florence’s “Civil Complaint,” he states that

he received the October 5, 2015 ruling on October 19, 2015, and directs us to the

Step II “Offender Grievance Form,” on which there is an “October 19, 2015”

stamp.      We can see the October 19, 2015 stamp, but without Florence’s

explanation, the stamped date’s significance is not clear from the form itself.

Because Florence admits receiving the Step II ruling on October 19, 2015, we

will use that date to determine whether he timely filed his “Civil Complaint.”


      3
          Id. § 14.005(b) (West 2002).
      4
          See id.
      5
          See id.


                                         4
      Thirty-one days from October 19, 2015, was Thursday, November 19,

2015.6 Florence filed his suit on Monday, November 23, 2015. He therefore filed

his “Civil Complaint” too late under section 14.005(b).7 In his brief, Florence

never addresses why he filed his suit late.

      In his reply brief, however, Florence asserts that his civil suit was filed

timely. He directs us to Exhibits A1 and A2 attached to his brief. Attachments to

briefs are not part of the record and cannot be considered.8 However, Florence’s

Exhibits A1 and A2 roughly correspond to the clerk’s index that does appear in

the clerk’s record, which we can consider.

      From reviewing the index found in the clerk’s record and the clerk’s record

itself, our understanding is that Florence mailed the paperwork for his suit in two

envelopes. The contents of one envelope were filed on November 23, 2015.

The contents of the other envelope were filed on December 7, 2015. As will be

discussed below, the documents filed on November 23, 2015, appear to have

been mailed no earlier than November 20, 2015, and we cannot determine from

the record when the documents filed on December 7, 2015, were mailed.




      6
          See Tex. R. Civ. P. 4.
      7
          See Tex. Civ. Prac. & Rem. Code Ann. § 14.005(b).
      8
       See Van De Loo v. Van De Loo, No. 05-00-01010-CV, 2001 WL 541457,
at *1 n.1 (Tex. App.—Dallas May 23, 2001, no pet.) (not designated for
publication).


                                         5
      Among the documents filed on November 23, 2015, are (1) the “Civil

Complaint,” dated November 11, 2015, (2) a signed declaration under section

14.004, dated November 20, 2015, (3) what appears to be a cover letter dated

November 20, 2015, and (4) a certified copy of Florence’s trust account

statement, dated November 10, 2015. Florence signed his “Civil Complaint” on

November 11, 2015, but his certificate of service shows simply where he mailed

his “Civil Complaint” and not when he mailed his “Civil Complaint.” There is no

envelope accompanying these documents. Based upon the cover letter and the

signed declaration, the earliest this set of documents could have been mailed

was November 20, 2015.

      The November 20, 2015 cover letter itself provides, “My 2nd Envelope,

was returned for postage. It contained the I.F.P. [in forma pauperis] form that

compl[ies] with 45 T.R.C.P.        Enclosed is T.R.C.P/ Rem. Code. 14.004

compliance [‘Affidavit Relating to Previous Filings’]. All other mandates are met

and said pleadings.” Appellant points to no evidence in the record, however, that

indicates that his petition (“Civil Complaint”) was filed before November 20, 2016.

      Among the documents filed on December 7, 2015, are Attachments 6, 7, 8,

9, 10, and 11 to the “Civil Complaint” (but not the “Civil Complaint” itself, which

was filed on November 23, 2015) and a duplicate of the certified copy of

Florence’s trust account statement. There is also an envelope that the clerk, in

its index, categorized as accompanying these documents, but its postmark is not

legible.


                                         6
      Although Florence does not articulate why he believes he filed his civil suit

timely, the only possible ground for timeliness that we perceive is the Texas

Supreme Court’s rule delivered in Warner v. Glass that under the Inmate

Litigation Act, a pro se inmate’s civil petition, enclosed in a properly addressed

and stamped envelope or wrapper, is deemed filed when given to prison

authorities for mailing.9    But this rule does not help Florence.    There is no

evidence in the record that he filed his claim before the 31st day after October

19, which would have been November 19, 2015. The earliest day his claim was

filed, according to the record, was November 20, 2015. Thus, the record shows

that he filed his claim too late.

      Because Florence did not file his suit before the 31st day after the date he

received the ruling in his Step II grievance, as required by section 14.005(b), we

hold that the trial court did not abuse its discretion by dismissing his suit.10 We

overrule Florence’s issue.

      In Florence’s August 8, 2016 document filed before Appellee’s brief, which

we treated as his supplemental brief, and again in his reply brief, he raises the

supplemental issue that the dismissal order should have been without prejudice




      9
          135 S.W.3d 681, 684–85 (Tex. 2004).
      10
           See Tex. Civ. Prac. & Rem. Code Ann. § 14.005(b).


                                         7
instead of with prejudice. But Florence could not amend his pleadings to remedy

the untimely filing of his petition.11 We overrule his supplemental point.

                                  CONCLUSION

      The trial court’s order dismissing Florence’s claims with prejudice is

affirmed. All of Florence’s pending requests for relief are denied.




                                                    /s/ Lee Ann Dauphinot
                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.

DELIVERED: December 1, 2016




      11
       See Geiger v. Milburn, No. 02-13-00250-CV, 2014 WL 487190, at *3
(Tex. App.—Fort Worth Feb. 6, 2014, no pet.) (mem. op.).


                                         8
