COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH 

NO. 02-16-00109-CV 

THOMAS FLORENCE APPELLANT

V. 

MARTINAY DAVENPORT III; 

JAMES STIVERS, GRIEVANCE 

INVESTIGATOR; JAMES ANDERS, 

ASSISTANT WARDEN; MARK 

ROTH, STEP II GRIEVANCE 

INVESTIGATOR; TDCJ-CID 

 APPELLEES

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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY 

TRIAL COURT NO. 183,643-B 

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MEMORANDUM OPINION1

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 1See Tex. R. App. P. 47.4. 
2 

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: 
3 

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 

 2Tex. Civ. Prac. & Rem. Code Ann. § 14.002(a) (West Supp. 2016). 
4 

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.” 

 3Id. § 14.005(b) (West 2002). 

4See id.

5See id.
5 

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. 

 6See Tex. R. Civ. P. 4. 

7See Tex. Civ. Prac. & Rem. Code Ann. § 14.005(b). 

8See 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). 
6 

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. 
7 

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 

 9135 S.W.3d 681, 684–85 (Tex. 2004). 

10See Tex. Civ. Prac. & Rem. Code Ann. § 14.005(b). 
8 

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 

 11See Geiger v. Milburn, No. 02-13-00250-CV, 2014 WL 487190, at *3 

(Tex. App.—Fort Worth Feb. 6, 2014, no pet.) (mem. op.).