Appeal from the 270th District Court Harris County, Texas
Trial Court Cause No. 2016-15836
consists of Justices Wise, Jewell, and Hassan.
appeal is from a judgment signed November 26, 2018. The
clerk's record was filed April 26, 2019. The record
reflects the notice of appeal was filed April 9, 2019. In
response to a notice from the court explaining that the
notice of appeal appeared untimely, appellant alleges he did
not receive notice of the November 26, 2018 judgment until
January 2, 2019. When a party contends he did not receive
official notice of a judgment from the clerk or otherwise
obtain actual knowledge of the judgment within twenty days of
the date the judgment was signed, the party may request an
order establishing that the time period for appeal begins on
the date the party or his attorney received the clerk's
notice or acquired actual knowledge of the judgment,
whichever occurred first. See Tex. R. Civ. P.
306a(4). In no event will the new time period begin more than
ninety days after the date the original judgment was signed.
Id. To establish application of rule 306a(4), a
party adversely affected must prove in the trial court, on
sworn motion and notice, the date on which the party or his
attorney first either received a notice of the judgment or
acquired actual knowledge of the signing and that this date
was more than twenty days after the judgment was signed.
See Tex. R. Civ. P. 306a(5).
clerk's record shows that appellant filed a motion
seeking to establish application of rule 306a(4). The motion
is supported by an affidavit from appellant's counsel
stating that he did not receive notice of the judgment by
mail and instead discovered that the judgment had been signed
by looking at the district clerk's website on January 2,
2019. January 2, 2019 is more than twenty days after November
26, 2018. We also have a reporters' record from a hearing
held February 21, 2019, at which the parties argued the
merits of appellant's request for rule 306a(4) relief. At
the conclusion of the hearing, the trial court indicated that
it found that appellant's counsel first received actual
knowledge of the judgment on January 2, 2019. The record,
however, does not contain a signed order to that effect. A
trial court granting rule 306a(4) relief is required to sign
a written order that finds the date on which the party or the
party's attorney first either received notice or acquired
actual knowledge that the judgment was signed. See
Tex. R. App. P. 4.2(c); see also LDF Construction, Inc.
v. Texas Friends of Chabad Lubavitch, Inc., 459 S.W.3d
720, 724 (Tex. App.-Houston [14th Dist.] 2015, no pet.) (the
date must be established by competent proof and included in a
written order signed by the trial judge).
a signed order under rule 4.2(c), we are unable to determine
whether appellant's notice of appeal is timely. If the
trial court finds that January 2, 2019, is the date when
appellant or appellant's counsel first either received
notice or acquired actual knowledge that the judgment was
signed, then a notice of appeal, or a motion extending the
time to file a notice of appeal, was due on or before
February 1, 2019. See Tex. R. App. P. 26.1;
Tex.R.Civ.P. 329b(a). The clerk's record reflects that
appellant tendered a motion for new trial for filing on
February 1, 2019. If the motion for new trial was timely,
then appellant's notice of appeal was due April 2, 2019.
The notice of appeal was filed April 9, 2019, within the
fifteen-day time period during which we imply a motion to
extend time. See Verburgt v. Dorner, 959 S.W.2d 615,
617 (Tex. 1997).
we order the case abated and remanded to the trial court for
entry of a written order finding the date when appellant
first either received notice or acquired actual knowledge
that the judgment was signed. A supplemental clerk's
record containing the trial court's order shall be filed
with the clerk of this court within 30 days of the
date of this order.
appeal is abated, treated as a closed case, and removed from
this Court's active docket. The appeal will be reinstated
on this Court's active docket when the supplemental
clerk's record is filed in this Court. The Court will
also consider an appropriate motion to reinstate the appeal
filed by either party, or the Court may reinstate the appeal
on its own motion. It is the responsibility of any party
seeking reinstatement to request a hearing date from the
trial court and to schedule a hearing, if a hearing is
required, in compliance with this Court's ...