|1997 Rules of Appellate Procedure|
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RULE 4. TIME AND NOTICE PROVISIONS
4.1 Computing Time.
(a) In general. The day of an act, event, or default after which a designated period begins to run is not included when computing a period prescribed or allowed by these rules, by court order, or by statute. The last day of the period is included, but if that day is a Saturday, Sunday, or legal holiday, the period extends to the end of the next day that is not a Saturday, Sunday, or legal holiday.
(b) Clerk's office closed or inaccessible . If the act to be done is filing a document, and if the clerk's office where the document is to be filed is closed or inaccessible during regular hours on the last day for filing the document, the period for filing the document extends to the end of the next day when the clerk's office is open and accessible. The closing or inaccessibility of the clerk's office may be proved by a certificate of the clerk or counsel, by a party's affidavit, or by other satisfactory proof, and may be controverted in the same manner.
4.2 No Notice of Trial Court s Judgment in Civil Case.
(a) Additional time to file documents .
(1)In general. If a party affected by a judgment or other appealable order has not within 20 days after the judgment or order was signed either received the notice required by Texas Rule of Civil Procedure 306a.3 or acquired actual knowledge of the signing, then a period that, under these rules, runs from the signing will begin for that party on the earlier of the date when the party receives notice or acquires actual knowledge of the signing. But in no event may the period begin more than 90 days after the judgment or order was signed.
(2)Exception for restricted appeal. Subparagraph (1) does not extend the time for perfecting a restricted appeal.
(b) Procedure to gain additional time . The procedure to gain additional time is governed by Texas Rule of Civil Procedure 306a.5.
(c) The court s order . After hearing the motion, the trial court must sign a written order that finds the date when the party or the partys attorney first either received notice or acquired actual knowledge that the judgment or order was signed.
4.3 Periods Affected by Modified Judgment in Civil Case.
(a) During plenary-power period . If a judgment is modified in any respect while the trial court retains plenary power, a period that, under these rules, runs from the date when the judgment is signed will run from the date when the modified judgment is signed.
(b) After plenary power expires . If the trial court corrects or reforms the judgment under Texas Rule of Civil Procedure 316 after expiration of the trial courts plenary power, all periods provided in these rules that run from the date the judgment is signed run from the date the corrected judgment is signed for complaints that would not apply to the original judgment.
4.4 Periods Affected When Process Served by Publication. If process was served by publication and if a motion for new trial was filed under Texas Rule of Civil Procedure 329 more than 30 days after the judgment was signed, a period that, under these rules, runs from the date when the judgment is signed will be computed as if the judgment were signed on the date when the motion for new trial was filed.
4.5 No Notice of Judgment of Appellate Court; Effect on Time to File Certain Documents.
(a) Additional time to file documents . A party may move for additional time to file a motion for rehearing in the court of appeals, a petition for review, or a petition for discretionary review, if the party did not until after the time expired for filing the document either receive notice of the judgment from the clerk or acquire actual knowledge of the rendition of the judgment.
(b) Procedure to gain additional time . The motion must state the earliest date when the party or the party's attorney received notice or acquired actual knowledge that the judgment had been rendered. The motion must be filed within 15 days of that date but in no event more than 90 days after the date of the judgment.
(c) Where to file .
(1)A motion for additional time to file a motion for rehearing in the court of appeals must be filed in and ruled on by the court of appeals in which the case is pending.
(2)A motion for additional time to file a petition for review must be filed in and ruled on by the Supreme Court.
(3)A motion for additional time to file a petition for discretionary review must be filed in and ruled on by the Court of Criminal Appeals.
(d) Order of the court . If the court finds that the motion for additional time was timely filed and the party did not within the time for filing the motion for rehearing, petition for review, or petition for discretionary review, as the case may be receive the notice or have actual knowledge of the judgment, the court must grant the motion. If the court grants the motion, the time for filing the document will begin to run on the date when the court grants the motion.
Notes and Comments
Comment to 1997 change: This is former Rule 5. Paragraph 4.1(b) is added. Former paragraph (b)(1) is omitted because it is covered by other provisions of the rules. Former paragraphs (b)(2) and (b)(3) are omitted because they are duplicative of provisions in the Rules of Civil Procedure, which prescribes the applicable procedure. The phrase modified, corrected or reformed in any respect in paragraph 4.3(a) is changed to modified in any respect, but no change in substance is intended. Former subdivision (e) regarding notice of judgment by the court of appeals is moved to Rule 12.6. Subdivision 4.5 is revised and now makes clear that the court must grant the motion for additional time if the court finds that the party did not receive the notice or acquire actual knowledge in time. Other changes are made throughout the rule.
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Last modified: March 25, 2010