             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________
           No. 02-18-00342-CV
      ___________________________

   EDDIE LACY STIVERS III, Appellant

                     V.

        JERRY HOLMES, Appellee



   On Appeal from the 297th District Court
            Tarrant County, Texas
      Trial Court No. D297-S-12155-13


     Before Gabriel, Kerr, and Pittman, JJ.
Per Curiam Memorandum Opinion on Rehearing
                MEMORANDUM OPINION ON REHEARING

        On January 10, 2019, we dismissed appellant Eddie Lacy Stivers III’s attempted

appeal from the trial court’s July 18, 2018 final summary judgment. Specifically, we

concluded that Stivers had failed to pay the required filing fee after we had twice

requested his compliance. See Tex. R. App. P. 42.3(c), 44.3. The next day, Stivers

filed a letter, which we construed to be a motion for rehearing, arguing that he had

sought to proceed without the payment of costs in the trial court. See Tex. R. Civ. P.

145; Tex. R. App. P. 19. Because the clerk’s record seemed to support Stivers’s

assertion, we requested a response from appellee Jerry Holmes. See Tex. R. App. P.

49.2.

        Holmes responded and argued that Stivers’s appeal was subject to dismissal for

nonpayment because he did not fix the identified defect within a reasonable time after

our notifications. But upon further review of the record, we have determined that we

do not have jurisdiction over this appeal.

        The trial court signed its final summary judgment on July 18, 2018, making any

motion for new trial due on or before August 17, 2018. See Tex. R. Civ. P. 329b(a).

Stivers’s motion for new trial was filed in the trial court on August 22, 2018, but the

one-day priority envelope shows that it was received by the United States Postal

Service on August 17, 2018; thus, it was timely filed.        See Tex. R. Civ. P. 5.

Accordingly, Stivers’s notice of appeal was due on or before October 16, 2018. See

Tex. R. App. P. 26.1(a).
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      The notice of appeal was filed in the trial court on October 22, 2018. The

envelope shows that it was postmarked by the United States Postal Service in Austin,

Texas, on October 18, 2018, two days after the appellate deadline. Stivers stated in

the certificate of service that he “served a copy of Notice of Appeal on the Parties

listed below by First Class U.S. mail” on October 16, 2018. But the postmark is

“conclusive proof of the date of mailing.” Tex. R. App. P. 9.2(b)(2)(A).

      We recognize that because the perfecting instrument was filed within fifteen

days of the appellate deadline, an extension motion is implied. See Verburgt v. Dorner,

959 S.W.2d 615, 616–17 (Tex. 1997). But Stivers still had the duty to come forward

with a reasonable explanation to support the late filing, which he has not done. Id. at

617; Woodard v. Higgins, 140 S.W.3d 462, 462–63 (Tex. App.—Amarillo 2004, no pet.).

Before notifying Stivers of his failure to pay the filing fee, we also notified him that

his notice of appeal was not timely filed and questioned our jurisdiction. See Tex. R.

App. P. 42.3, 44.3. Stivers responded, relying on “the mail box rule” to render his

notice timely, and submitted an affidavit stating, “I personally deposited the Notice of

Appeal in a U.S. Postal Service box on October 16th, 2018, by first-class mail, affixed

with proper postage and addressed to the proper clerk.”1 Stivers did not address the

conclusive proof of the actual October 18 mailing date from Austin, Texas, which was

included in the clerk’s record and attached to his jurisdictional response. Stivers’s

      1
       We take judicial notice that October 16, 2018, was a Tuesday. See Tex. R.
Evid. 201.

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unilateral assertion of a mailing date that is clearly controverted by conclusive proof,

without more, does not provide a reasonable explanation justifying an extension. See

Tex. R. App. P. 10.5(b), 26.3; Stephens v. Stephens, No. 2-10-197-CV, 2010 WL 3433108,

at *2 (Tex. App.—Fort Worth Aug. 31, 2010, no pet.) (per curiam mem. op.).

      We also recognize that Stivers is incarcerated and cannot be penalized for

delays in the prison mail system. See Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004).

Thus, if Stivers had placed his notice of appeal “in the prison mail system,” it would

be “deemed filed at the time the prison authorities duly receive[d] the document to be

mailed.” Id. But at no point did Stivers assert that he gave either his motion for new

trial or notice of appeal to prison authorities. Stivers has never affirmatively stated or

even implied that he mailed the notice of appeal by placing it in the prison mail

system or by otherwise giving it to prison authorities. Cf. Ramos v. Richardson, 228

S.W.3d 671, 673 (Tex. 2007) (holding notice of appeal timely filed because pro se

litigant stated on certificate of service that it was placed in the “outgoing prison

mailbox” by the appellate deadline). Not in his certificates of service, not in his

affidavits, and not in his jurisdictional response. Stivers did not do “everything

necessary to comply with the rules” and we cannot give him the benefit of the prison

mailbox rule when he does not state that he availed himself of the prison mailbox. Id.

Stivers’s incarceration, without more, does not establish that he used the prison mail

system. Cf. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 928 (Tex. 1999) (“[W]hen the

sender of a document relies on office routine or custom to support an inference that
                                            4
the document was mailed, the sender must provide corroborating evidence that the

practice was actually carried out.”).

       We conclude that because Stivers failed to timely file a notice of appeal or

provide a reasonable explanation of why he failed to do so, we have no jurisdiction

over this appeal. See, e.g., Woodard, 140 S.W.3d at 462–63. We withdraw our January

10, 2019 opinion and judgment dismissing the appeal for the failure to pay a filing fee,

substitute this opinion in its place, and deny the motion for rehearing. We dismiss

Stivers’s attempted appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).

                                                       Per Curiam

Delivered: February 28, 2019




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