Texas Rules of Appellate Procedure

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.

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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 party’s attorney first either received notice or acquired actual knowledge that the judgment or order was signed.

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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 court’s 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.

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4.1. 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.

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4.2. No Notice of Judgment or Order 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 or en banc reconsideration 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 or order from the clerk or acquire actual knowledge of the rendition of the judgment or order.

 

(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 or order 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 or order.

 

(c) Where to File.

 

(1) A motion for additional time to file a motion for rehearing or en banc reconsideration 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.

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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 court’s 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.

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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 or Order 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 or en banc reconsideration 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 or order from the clerk or acquire actual knowledge of the rendition of the judgment or order.

 

(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 or order 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 or order.

 

(c) Where to File.

 

(1) A motion for additional time to file a motion for rehearing or en banc reconsideration 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.

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(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 or en banc reconsideration, petition for review, or petition for discretionary review, as the case may be—receive the notice or have actual knowledge of the judgment or order, the court must grant the motion. The time for filing the document will begin to run on the date when the court grants the motion.

 

4.6. No Notice of Trial Court’s Appealable Order on a Motion for Forensic DNA Testing

 

(a) Additional Time to File Notice of Appeal. If neither an adversely affected defendant nor the defendant’s attorney received notice or acquired actual knowledge that the trial judge signed an order appealable under Code of Criminal Procedure Chapter 64 within twenty days after the signing, then the time periods under these rules that ordinarily run from the signing of an appealable order will begin to run on the earliest date when the defendant or the defendant’s attorney received notice or acquired actual knowledge of the signing. But in no event shall such periods begin more than 120 days after the day the trial judge signed the appealable order.

 

(b) Motion to Gain Additional Time.

 

(1) A defendant’s motion for additional time must:

 

(A) Be in writing and sworn;

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(B) State the defendant’s desire to appeal from the appealable order;

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(C) State the earliest date when the defendant or the defendant’s attorney received notice or acquired actual knowledge that the trial judge signed the appealable order; and

 

(D) Be filed within 120 days of the signing of the appealable order.

 

(2) To establish the application of paragraph (a) of this rule, the defendant adversely affected must prove in the trial court:

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(A) The earliest date on which the defendant or the defendant’s attorney received notice or acquired actual knowledge that the trial judge signed the appealable order; and

 

(B) That this date was more than twenty days after the signing of the appealable order. (3) If the defendant’s motion for additional time meets the requirements set out in paragraphs (b)(1) and (b)(2), the motion may serve as the defendant’s notice of appeal.

 

(C) The Court’s Order. After hearing the motion for additional time, the trial judge must sign a written order that determines the earliest date when the defendant or the defendant’s attorney received notice or acquired actual knowledge that the trial judge signed the appealable order and whether this date was more than twenty days after the judge signed the appealable order. 

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(D) The Clerk’s Duties. The trial court clerk must immediately (as they are filed or entered in the record) forward to all parties in the case copies of the defendant’s motion for additional time, the trial judge’s written order under subsection (c), the order the defendant seeks to appeal, any State’s response, and any exhibits and related documents.

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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.

 

Comment to 2002 change: Subdivision 4.5 is amended to clarify that a party may obtain additional time to file documents when the party fails to receive notice not only of an appellate court judgment, but of an appellate court order - such as one denying a motion for rehearing - that triggers the appeal period.

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Comment to 2007 change: Subdivision 4.5 is changed, consistent with other changes in the rules, to specifically address a motion for en banc reconsideration and treat it as a motion for rehearing.

 

Comment to 2018 change: Rule 4.6 is intended to provide redress for criminal defendants who are entitled to appeal trial court rulings made pursuant to Texas Code of Criminal Procedure Chapter 64, but receive late or no notice of the rulings. The rule allows a defendant additional time to file a notice of appeal when neither the defendant nor the defendant’s attorney received notice or acquired actual knowledge of the signing of the appealable order within the first 20 days after the signing. The rule is based on the framework of Rule of Appellate Procedure 4.2 and Texas Rule of Civil Procedure 306a, but is intended to apply only in the limited context of appealable rulings on Chapter 64 motions. The term “sworn” in Rule 4.6 includes the use of an unsworn declaration made under penalty of perjury. See TEX. CIV. PRAC. & REM. CODE § 132.001. If a trial judge grants a defendant’s motion for additional time filed under this rule, the court of appeals may treat the defendant’s late-filed notice of appeal as timely or treat the motion for additional time itself as a notice of appeal for the purpose of determining compliance with Rules 25.2 and 26.2.