Opinion issued April 28, 2011.                                                                                                                                                                                                                                             

In The

Court of Appeals

For The

First District of Texas

Timothy Paul Martin, Appellant

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 2004-51912

CONCURRING opinion

Although I concur in the judgment, I am writing separately to further expound upon an issue that is only briefly addressed by the majority—the filing date of Martin’s petition. 

Because he is an incarcerated pro se litigant, Martin would ordinarily be entitled to have his petition deemed filed for purposes of Chapter 14 of the Texas Civil Practice and Remedies Code at the time he placed the document in a properly addressed and stamped envelope or wrapper and gave it to prison authorities for mailing.  See Warner v. Glass, 135 S.W.3d 681, 684 (Tex. 2004). 

Unfortunately for Martin, the record in this case contains no indication of when prison authorities received his petition, and Martin made no argument to the trial court or this Court as to the timeliness of its filing.^[1]  There is no declaration in any of Martin’s pleadings reciting this critical date,^[2] and the record contains neither certificates of service nor other indicia of mailing which would allow us to determine when he first placed his petition in the prison mail system.  See generally Jon v. Griffin, No. 03-08-00552-CV, 2009 WL 1256431, at *2 (Tex. App.—Austin May 8, 2009, no pet.) (mem. op.) (trial court abused its discretion when it dismissed inmate’s petition as untimely under Chapter 14 because date and method of service ascribed to it in certificate of service attached to original petition sufficient to demonstrate date inmate placed petition in prison mail system).

The sole indication of filing contained in the record is the April 2, 2009 file-stamp date affixed to Martin’s petition and accompanying documentation by the Brazoria County Clerk’s office.  Although the record contains documents which suggest that Martin filed his petition before April 2, 2009, these documents are insufficient to establish a filing date for purposes of Chapter 14.^[3]  See generally Boone v. Different, No. 12-08-00468-CV, 2010 WL 337338, at *2 (Tex. App.—Tyler Jan. 29, 2010, no pet.) (mem. op.) (trial court did not abuse its discretion when it dismissed inmate’s petition as untimely under Chapter 14 because record contained no evidence that inmate’s claim was timely received by proper prison authorities; declining to hold that “date set forth beneath Appellant’s signature on his original petition is evidence of when the petition was received by the prison mail system”); Brooks v. TDCJ-ID, No. 13-04-00320-CV, 2005 WL 1797071, at *2 (Tex. App.—Corpus Christi July 28, 2005, pet. denied) (mem. op.) (trial court did not abuse its discretion when it dismissed inmate’s petition as untimely under Chapter 14 because record contained no evidence establishing when petition was placed in prison mail system; inmate’s documents which were dated prior to deadline and included in record were insufficient to establish date).

Despite his best effort to carefully comply with the well-nigh endless requirements of Chapter 14, and my belief that he probably did place his petition in hands of the prison authorities for mailing within the 31-day period (see footnote 3), the evidence in the record is inconclusive on this point and, thus, I am bound to concur.

                                                          Jim Sharp

                                                          Justice

Panel consists of Keyes, Sharp, and Massengale.

Justice Sharp, concurring.