In 2023, the legislature amended Texas Government Code Section 80.002 to include a provision requiring courts to provide notice of orders through the efiling system. Tex. Gov’t Code § 80.002(b). Additionally, Texas Rule of Civil Procedure 21 was amended to state:
“the clerk must send orders, notices, and other documents to the parties electronically through an electronic filing service provider”
unless certain exceptions apply, such as the case being sealed or when an unrepresented party has no email address. Tex. R. Civ. P. 21(f)(10) (emphasis added).
Texas Rule of Civil Procedure 306a paragraph 3 states that a “clerk of the court must immediately send the judgment or order to the parties as provided in Rule 21(f)(10). Tex. R. Civ. P. 306a(3).
However, there are still times in which an order is not timely received. Because post-judgment timelines begin to run from the time the order is signed, if the parties are not immediately notified of the signing of a judgment, issues can arise.
Normal Deadlines
A motion for new trial must be filed within 30 days of the judgment. Tex. R. Civ. P. 329b. While a court may grant leave to consider an amended motion for new trial after 30 days, it does not need to consider such a motion. See Tex. R. Civ. P. 329b; Kalteyer v. Sneed, 837 S.W.2d 848, 852 (Tex. App.—Austin 1992, no writ). Regardless, a court cannot grant leave to consider an original motion for new trial filed more than 30 days after a judgment has been signed because it no longer has plenary power to do so. Tex. R. Civ P. 329b(b); see Buffa v. Buffa, No. 13-21-00171-CV, 2023 WL 3881118, at 4–5 (Tex. App.—Corpus Christi–Edinburg 2023, no pet.) (mem. op.).
A request for findings of fact must be filed within 20 days of the judgment. Tex. R. Civ. P. 296. Although findings are not always necessary, when you need them, this deadline is one to keep an eye on since it comes sooner than other important deadlines. Tex. R. Civ. P. 296, 329b; Tex. R. App. P. 26.1.
The court’s plenary power ends 30 days after the judgment unless a motion for new trial is timely filed, in which case the power is automatically extended for 75 days. Tex. R. Civ. P. 329b. If there is no ruling on the motion, then the power is extended a total of 105 days (75 + 30) because the motion is considered overruled by operation of law on the 75th day, but the court retains plenary power over that implied ruling for another 30 days. Tex. R. Civ. P. 329b. If the court denies the motion quickly, then the new plenary power only runs 30 days from the date of that denial (you don’t get 105 days). Tex. R. Civ. P. 329b. If the court grants the motion, then all deadlines vanish because the case will be reopened as if no final judgment had been signed. See Tex. R. Civ. P. 329b.
The deadline to file a notice of appeal is typically 30 days after the signing of the judgment. Tex. R. App. P. 26.1. If the appeal is accelerated for any reason—for example, in termination proceedings—then the deadline is only 20 days after the signing of the judgment. Tex. R. App. P. 26.1(b); Tex. Fam. Code §§ 109.002, 152.314. However, the deadline can be extended from 30 days to 90 days if a motion for new trial or request for findings of fact is timely filed. Tex. R. App. P. 26.1(a).
The deadline to file notice of a restricted appeal is 6 months after a judgment, and the deadline to file a petition for bill of review is four years after the signing of the judgment. Tex. R. App. P. 26.1(c); PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 272 n.7 (Tex. 2012) (citing Tex. Civ. Prac. & Rem. Code § 16.051 (setting out that a bill of review is governed by the residual four-year limitations period)). Importantly, however, to be entitled to a bill of review, a party must show that all available legal remedies were exercised, including seeking a 306a order if appropriate. E.g., In re S.G.F., No. 05-23-00853-CV, 2024 WL 4211323, at *4 (Tex. App.—Dallas 2024, no. pet. h.) (mem. op.).
Texas Rule of Civil Procedure 306a
Texas Rule of Civil Procedure 306a, paragraph 4 is entitled “No notice of judgment” and provides:
If within twenty days after the judgment or other appealable order is signed, a party adversely affected by it or his attorney has neither received the notice required by paragraph (3) of this rule nor acquired actual knowledge of the order, then with respect to that party all the periods mentioned in paragraph (1) shall begin on the date that such party or his attorney received such notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed.
Tex. R. Civ. P. 306a(4). In other words, if the judgment has not been received and the party has no actual knowledge of the order more than 20 days after but less than 90 days after the order was signed, then all the deadlines referenced above begin running on the date the order was received instead of the date the order was signed. Tex. R. Civ. P. 306a(4).
However, this extension of the deadlines is not automatic. Buffa, 2023 WL 3881118, at 4. Before the deadlines can be extended, a party must prove, “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 [and less than 90 days] after the judgment was signed.” Tex. R. Civ. P. 306a(5). Additionally, a party cannot simply say the order was received “late.” See In re Mendez, No. 05-22-01070-CV, 2023 WL 4229819, at 2 (Tex. App.—Dallas 2023, orig. proceeding) (mem. op.). The party must offer evidence of the date the order was received or when the party or his attorney acquired actual knowledge of the order. Id.
If the party is seeking to appeal the late-received order, that party will need to obtain a 306a order stating the date the party had notice or knowledge of the order. Without that 306a order, the appellate court will send the issue back to the trial court to get a 306a order or dismiss the appeal for lack of jurisdiction. Washington v. Thompson, No. 06-24-00056-CV, 2024 WL 4002706, at 2 (Tex. App.—Texarkana 2024, no pet.) (mem. op.) (dismissing for lack of jurisdiction); Lampasas Drug Co., Ltd. v. Santamaria, No. 07-24-00140-CV, 2024 WL 3513879, at 1 (noting appeal was previously remanded for 306a ruling).
If the party attempts to file a motion for new trial after 30 days after the order was signed but within 30 days of notice or knowledge of the order without getting a 306a order, any order granting a new trial will be void for lack of plenary power. See Buffa, 2023 WL 3881118, at *4.
If the party could have gotten deadlines extended under 306a and could have filed a timely motion for new trial—based on a 306a extension of deadlines—but did not do so, that party will not be entitled to a bill of review because the party failed to exercise all available remedies before seeking a bill of review. See S.G.F., 2024 WL 4211323, at *4.
Texas Rule of Civil Procedure 306a is a very important rule to remember. If you are already on a case and do not receive notice, or if you have a potential new client who just received late notice of an order, you need to know all the post-judgment deadlines and whether you can get them extended. Unfortunately, as the rules exist today, if you receive actual notice or knowledge of the order on the 19th day after the judgment has been signed, you have 1 day to request to findings and 11 days to file a motion for new trial, and Rule 306a cannot help extend those deadlines.
I, personally, would like to see Rule 306a amended—considering the changes to Government Code Section 80.002 and Rule of Civil Procedure 21—to allow an extension of the deadlines if the order is even one day late, but as of right now, the window is only available if the order is received more than 20 days but less than 90 days after a judgment is signed.
Comments