Opinion
02-21-00010-CV
02-17-2022
Alexander Frasier and Hitomi Frasier, Appellants v. Kathleen Ann Shafeeq, Appellee
On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048-322104-20
Before Womack, Wallach, and Walker, JJ.
MEMORANDUM OPINION
BRIAN WALKER JUSTICE
In this appeal from a summary judgment, we are asked a discrete legal question based on undisputed facts: If a limitations period expires on a Saturday and the next Monday is a national holiday, is the period extended to Tuesday even though the county's offices were open for business on the national holiday? We conclude that limitations was extended to Tuesday and reverse the trial court's summary judgment concluding the opposite.
I. BACKGROUND
Appellants Alexander and Hitomi Frasier were in a car accident with appellee Kathleen Ann Shafeeq on November 9, 2017, in Tarrant County. Under the applicable statute of limitations, the Frasiers' personal-injury suit was due no later than November 9, 2019, which was a Saturday. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a). Monday, November 11, 2019, was Veterans Day, which the Texas Legislature has classified as a "national holiday . . . dedicated to the cause of world peace and to honoring the veterans of all wars in which Texans and other Americans have fought." Tex. Gov't Code Ann. § 662.003(a)(7). The Frasiers filed suit on Tuesday, November 12, 2019, in Tarrant County.
Shafeeq answered the petition and raised the affirmative defense of limitations. She then filed a traditional motion for summary judgment on her defense and argued that because the Tarrant County Commissioners Court had determined that county offices would be open on Veterans Day, the Frasiers' limitations period was not extended to the next day-November 12-under either Rule 4 or the statutory limitations extension. See Tex. Civ. Prac. & Rem. Code Ann. § 16.072; Tex. R Civ. P. 4. The Frasiers responded that because the Texas Legislature had expressly provided that Veterans Day is a "national holiday," Rule 4 extended their deadline to file suit to the next day that was not a legal holiday-November 12, 2019. Tex. Gov't Code Ann. § 662.003(a)(7). The trial court granted Shafeeq's motion and dismissed the Frasiers' individual claims against her.
The Frasiers had also raised claims against Shafeeq as next friends for their son; however, these claims were severed from the Frasiers' individual claims and were not affected by the trial court's summary-judgment order.
In computing time, the Rules of Appellate Procedure use similar language: "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." Tex.R.App.P. 4.1(a).
II. DISCUSSION
A. Standard of Review
We review the trial court's summary judgment de novo. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). We take as true all evidence favorable to the Frasiers and we indulge every reasonable inference and resolve any doubts in their favor. Id.
A traditional motion for summary judgment may be granted only when the movant-Shafeeq- establishes that there are no genuine issues of material fact and that she is entitled to judgment as a matter of law. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Because Shafeeq moved for summary judgment on the basis of limitations, she had the burden to conclusively establish the defense by showing when the cause of action accrued and that suit was filed outside the applicable limitations period. KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Boyd v. Kallam, 152 S.W.3d 670, 683 (Tex. App.-Fort Worth 2004), pets. denied, 232 S.W.3d 774, 776 (Tex. 2007). If she did so, the burden shifted to the Frasiers to raise a fact issue regarding an applicable avoidance of limitations. See KPMG Peat Marwick, 988 S.W.2d at 748.
B. Time Calculation and Extension
Rule 4 governs time computation for "any period of time prescribed or allowed by [the rules of civil procedure], by order of court, or by any applicable statute." Tex.R.Civ.P. 4 (emphasis added). Thus, Rule 4 applies to the calculation of a limitations period. Martinez v. Windsor Park Dev. Co., 833 S.W.2d 950, 951 (Tex. 1992); Hughes v. Autry, 874 S.W.2d 890, 894 (Tex. App.-Austin 1994, no writ) (per curiam). The rule directs that the first day of the time period is not counted but that the last day is included unless the last day "is a Saturday, Sunday, or legal holiday," which extends the operative period to the end of the next day that is not a Saturday, Sunday, or legal holiday. Tex.R.Civ.P. 4.
Section 16.072, which also applies to limitations periods, is a little different. It provides that if the last day of a limitations period falls on a "Saturday, Sunday, or holiday," the period is "extended to include the next day that the county offices are open for business." Tex. Civ. Prac. & Rem. Code Ann. § 16.072. Section 16.072 is "somewhat broader" than Rule 4 because Section 16.072's application "is not restricted to legal holidays." Martinez , 833 S.W.2d at 951.
Even so, Section 16.072 and Rule 4 should be construed similarly because both "extend time periods for taking action when the period ends on weekends and holidays." Id.
C. Application
On appeal, the Frasiers contend that Rule 4 extended the limitations period to November 12 because a legal holiday, which includes national holidays set by the Legislature, is not included in time computations. And although they initially seemed to concede that limitations expired on Veterans Day under Section 16.072 because the county offices were open, the Frasiers later argued that Section 16.072 includes the same holidays contemplated under Rule 4 and did extend the limitations period. In sum, the Frasiers assert that under either Rule 4 or Section 16.072, November 11 is not included in the computation of the end of their limitations period because Veterans Day is a legislatively declared holiday.
We note that the Frasiers did not make their argument based on Section 16.072 in the trial court in response to Shafeeq's summary-judgment motion and that the majority of their appellate argument is focused on Rule 4. But the Frasiers asserted in the trial court that they had filed their suit timely, thereby necessarily arguing that Shafeeq had not conclusively established that they had filed their suit outside of the limitations period. The Frasiers continue to raise that issue on appeal in attacking the trial court's summary judgment. Because the trial court's summary judgment must stand or fall on its own merits, the Frasiers may challenge on appeal the legal sufficiency of the summary-judgment grounds presented by Shafeeq-Rule 4 and Section 16.072. See Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014); cf Li v. Pemberton Park Cmty. Ass'n, 631 S.W.3d 701, 704-05 (Tex. 2021) ("And while appellate courts 'do not consider issues that were not raised . . . below,' parties may 'construct new arguments in support of issues' that were raised." (quoting Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4 (Tex. 2014))).
Again, the Legislature has identified Veterans Day as a national holiday and, thus, as a legal holiday. Tex. Gov't Code Ann. §§ 662.003(a)(7), 662.021(1). See generally Cummings v. Billman, 629 S.W.3d 297, 299 n.1 (Tex. App.-Fort Worth 2020, no pet.) (concluding, in case from Denton County, that motion to reinstate was timely filed on 31st day because 30th day fell on Veterans Day). The Texas Supreme Court has held that a legislatively declared holiday for state employees is "a legal holiday for procedural purposes within the meaning of Rule 4." Mid-Continent Refrigerator Co. v. Tackett, 584 S.W.2d 705, 706 (Tex. 1979); see also Dorchester Master Ltd. P'ship v. Hunt, 790 S.W.2d 552, 552-53 (Tex. 1990); Johnson v. Tex. Employers Ins. Ass'n, 674 S.W.2d 761, 762 (Tex. 1984); Blackman v. Hous. Auth. of City of Dall, 254 S.W.2d 103, 104-06 (Tex. 1953); Old Republic Ins. Co. v. Wuensche, 782 S.W.2d 346, 348 (Tex. App.-Fort Worth 1989, writ denied). Thus, it seems clear that under Rule 4, the Frasiers' suit was timely filed on November 12 because that was the "next day which [was] not a Saturday, Sunday, or legal holiday." Tex.R.Civ.P. 4.
The wrinkle in this case arises because the Tarrant County Commissioners Court, contrary to many other counties, has declared that its offices will be open on Veterans Day. Section 16.072, therefore, would seem to dictate that the Frasiers were required to file suit on November 11 because the county offices were "open for business." Tex. Civ. Prac. & Rem. Code Ann. § 16.072. The Frasiers succinctly illustrate the practical complications that would arise under an interpretation that would render their suit timely under Rule 4 but time-barred under Section 16.072:
For example, Wichita, Bell, Liberty, and Williamson Counties recognize Veterans Day as a holiday. See, e.g., Kadow v. Grauerholz, No. 02-20-00044-CV, 2021 WL 733302, at *6 (Tex. App.-Fort Worth Feb. 25, 2021, no pet.) (mem. op.) (Wichita County); Long v. Yurrick, 319 S.W.3d 944, 946 (Tex. App.-Austin 2010, no pet.) (Bell County); In re J.B., No. 09-07-625 CV, 2008 WL 4735434, at *2 (Tex. App.-Beaumont Oct. 30, 2008, no pet.) (mem. op.) (Liberty County); Barnes v. Sulak, No. 03-01-00159-CV, 2002 WL 1804912, at *8 (Tex. App.-Austin Aug. 8, 2002, pet. denied) (not designated for publication) (Williamson County).
The Texas Supreme Court has also recognized this duty of diligence:
[A] party who finds the courthouse closed on the last day that a document must be filed is not without recourse. He may mail the document that day, and if it is received by the clerk not more than ten days later it is timely filed. He may also locate the clerk or judge of the court and file the document with them. In some circumstances, a party may also move for an enlargement of time.Miller Brewing Co. v. Villarreal, 829 S.W.2d 770, 771-72 (Tex. 1992) (authorities omitted); see also Zidell v. NHP Real Est. Co., 643 S.W.2d 199, 200 (Tex. App.-Austin 1982, no writ) ("Since appellant was required to file the cost bond on July 5, and assuming the Courthouse was closed on that day, appellant should have arranged to file the cost bond with the district clerk or district judge."); Michol O'Connor & Alessandra Ziek Beavers, O'Connor's Texas Civil Appeals, Ch. 1(C), § 6.2.2 (2021) ("When the courthouse is open, the holiday probably will not extend a filing deadline. When in doubt, a party should call the clerk's office, and if the court is open for filing documents on a legal holiday, consider it a regular business day and file any documents due on that day."); Tex.R.Civ.P. 74 (allowing documents to be filed with the judge in addition to the clerk).
If this Court adopts the position of Shafeeq in this case, then the last day of any statute of limitations (and perhaps deadlines under other statutes as well), would vary from county to county. It would vary depending on which county the incident sued upon occurred. It would depend on how many Defendants are being sued and the residences of each of those Defendants. Each of these factors influence the appropriate venue for a suit and, therefore, would influence a determination of the last day of a statute of limitations[, ] which will be different in each case. In sum, an identical event in two different counties in the state would have two different statutes of limitation even though the state has only one statute of limitation for that type of event. If an attorney woke up on a day after a legal holiday and realized that a county of proper venue was open for business on that legal holiday, he could pick any other
county, say Cherokee County, to file in the next day so long as that county had not been open for business on the legal holiday. If it is a county of improper venue, it will probably then be transferred to a county of proper venue. But it will nevertheless be timely filed under the law that Shafeeq is trying to create.
Given the Texas Supreme Court's direction that Rule 4 and Section 16.072 should be similarly construed and given that tolling provisions relating to limitations periods should be liberally construed, we hold that the Frasiers timely filed suit on November 12. See Martinez , 833 S.W.2d at 951; Vale v. Ryan, 809 S.W.2d 324, 326 (Tex. App.-Austin 1991, no writ).
A contrary result would be nonsensical, leading to venue shopping based on the vagaries of county politics. See generally Silguero v. CSL Plasma, Inc., 579 S.W.3d 53, 59 (Tex. 2019) ("It is the Legislature's prerogative to enact statutes; it is the judiciary's responsibility to interpret those statutes according to the language the Legislature used, absent a context indicating a different meaning or the result of the plain meaning of the language yielding absurd or nonsensical results."). And it would allow counties to alter, on an ad hoc basis, which days are considered procedural and statutory holidays. In a state with 254 counties, such a result would be absurd.
A further problem would arise if we concluded that the Frasiers should have electronically filed their petition on November 11. If a document is electronically transmitted on a Saturday, Sunday, or legal holiday, the document is considered filed the next day that is not a Saturday, Sunday, or legal holiday. See Tex. R. Civ. P. 21(f)(5)(A). Therefore, even if the Frasiers had electronically filed their petition on November 11, it would still have been considered filed on November 12 because November 11 was a legal holiday. See Tex. Gpov't Code Ann. § 662.021 (defining legal holiday as national and state holidays as designated by the Legislature). In short, the petition arguably would still have been untimely filed if it had been electronically transmitted on November 11.
The Frasiers and Shafeeq electronically filed their pleadings in this case.
Section 662.003(a)(7) identifies Veterans Day as a "national holiday," and Section 662.021 defines "legal holiday" to include a "national holiday" under Section 662.003(a). Tex. Gov't Code Ann. §§ 662.003(a)(7), .021(1).
We recognize, as does the dissenting opinion, that another intermediate appellate court has held differently, reasoning that our conclusion here would be "absurd." Lowe v. Rivera, 60 S.W.3d 366, 369 (Tex. App.-Dallas 2001, no pet). The Dallas Court of Appeals held that because Dallas County offices were open on a legislatively declared national holiday (Presidents Day), which was the last day of the appellant's limitations period, the appellant was required to file suit on that day under Section 16.072 to be considered timely filed. Id. at 367-70. The Dallas Court of Appeals did not consider Rule 4 in its analysis, and its holding effectively allows a county by fiat to render Rule 4 inapplicable for limitations purposes if it opens its offices on a Saturday, Sunday, or holiday. As the Frasiers point out, this would result in different limitations periods based on the county of suit. And different results under Rule 4 and Section 16.072 would run afoul of the Supreme Court's direction to construe them similarly because both "extend time periods for taking action when the period ends on weekends and holidays." Martinez , 833 S.W.2d at 951 (emphasis added). See generally Robles v. Rivera, No. 05-17-00733-CV, 2018 WL 3120858, at *3 (Tex. App.-Dallas June 26, 2018, pet. denied) (mem. op.) ("[L]egal holiday [as used in Tex.R.Civ.P. 500.5] must mean something other than days when the court is closed."). Thus, we respectfully decline to follow Lowe in this case.
Electronic-filing rules were not enacted until 2013 and, thus, were not part of the Dallas Court of Appeals' 2001 analysis.
"The number and date of state holidays are directly related to the appropriation of funds for hours and days of work by state personnel from the State Treasury." Mid-Continent Refrigerator Co. v. Tackett, 584 S.W.2d 705, 706 (Tex. 1979).
Finally, we look to the purpose behind Section 16.072, which further bolsters our conclusion. See generally In re J.F.-G, 627 S.W.3d 304, 313-14 & n.34 (Tex. 2021) (citing Pruski v. Garcia, 594 S.W.3d 322, 328 & n.2 (Tex. 2020), and recognizing how an enacted statute changes over time-the history of legislation as opposed to legislative history-may inform statutory interpretation by providing context). The text of current Section 16.072 was initially enacted in 1977 in response to a court of appeals case-Fulghum v. Baxley, 219 S.W.2d 1014, 1015 (Tex. App.-Dallas 1949, no writ)-which had held Rule 4 inapplicable to statutes of limitations and had concluded that if a limitations period ended on a Sunday, the case must be filed on Sunday to avoid the time bar. The Texas Legislature, specifically referring to Fulghum, enacted Article 5539d in the Revised Civil Statutes to "allow a party to file suit on the first business day following a holiday where the last day of the period of limitation falls on a holiday." House Comm. on Judiciary, Bill Analysis, Tex. H.B. 524, 65th Leg., RS. (1977). In other words, the predecessor to Section 16.072 was enacted to ensure that Rule 4 applied to the calculation of limitations periods. When the Legislature codified the Civil Practice and Remedies Code in 1985, Article 5539d became Section 16.072 with no substantive change. Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws 3242, 3258. Section 16.072 has not been amended since. Accordingly, the Legislature intended that Saturdays, Sundays, and holidays occurring at the end of a limitations period not be counted whether under Section 16.072 or Rule 4. A conclusion that Veterans Day be included in the Frasiers' limitations calculation, based on the Commissioners Court's holiday declaration contrary to the Legislature's, would ignore the purposes of Rule 4 and Section 16.072-to toll limitations periods for Saturdays, Sundays, and holidays.
III. CONCLUSION
Even though the Frasiers' limitations period expired on Saturday, November 9, we conclude that the deadline was extended to Tuesday, November 12, because Monday, November 11, was a legal holiday. Shafeeq failed to conclusively establish that the Frasiers' suit was filed outside of that deadline; therefore, she was not entitled to summary judgment on her affirmative defense. We reverse the trial court's order granting summary judgment in favor of Shafeeq and remand this case for further proceedings. See Tex. R. App. P. 43.2(d), 43.3(a).
DISSENTING MEMORANDUM OPINION
Dana Womack Justice
Today, the majority holds that the statute of limitations is extended on a day-Veterans Day-that the clerk's office was open for business. Because I would hold otherwise, I respectfully dissent.
As noted by the majority, the facts in this case are not in dispute. Appellants Alexander Frasier and Hitomi Frasier sued Kathleen Ann Shafeeq for personal injuries two years and three days after a car accident by e-filing their original petition in Tarrant County on Tuesday, November 12, 2019- one day after Veterans Day, a day that the Tarrant County Commissioners Court did not declare a holiday and a day on which the clerk's office was open. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (providing a two-year statute of limitations for personal injury lawsuits). The trial court granted summary judgment to Shafeeq when she argued that under Rule of Civil Procedure 4 and Civil Practice and Remedies Code Section 16.072, limitations could not be extended because the Tarrant County District Clerk's office had been open for business on Veterans Day. See id. § 16.072 ("If the last day of a limitations period . . . falls on a Saturday, Sunday, or holiday, the period for filing suit is extended to include the next day that the county offices are open for business.") (emphasis added); Tex.R.Civ.P. 41 (providing, in pertinent part, that the last day of a statutory time period is to be included unless it is a Saturday, Sunday, or "legal holiday"). Since the Frasiers could have and should have filed their original petition on November 11, 2019, when the clerk's office was open for business, I would affirm the granting of the motion based on the statute of limitations.
A sister court has previously addressed this open/closed scenario. Lowe v. Rivera, 60 S.W.3d 366 (Tex. App.-Dallas 2001, no pet.). In Lowe, the last day of the two-year limitations period for the appellant's claims fell on Monday, February 21, 2000, which was Presidents' Day, a day on which Dallas County offices, including the clerk's office, were open for business. Id. at 367. The "single question in dispute [was] whether [the] appellant's limitations period should have been extended one day because February 21st was Presidents' Day." Id. at 368. Relying on Section 16.072 of the Civil Practice and Remedies Code, the appellant argued that a plaintiff automatically receives an extension of his limitations period until the next day that the county offices are open for business. Id.
The Dallas court disagreed, noting that the "appellant looks past the very purpose of section 16.072, which is to extend the limitations period when a plaintiff would otherwise lose the final day of that period for filing purposes." Id. Reading Section 16.072 as a whole, "the section clearly addresses the situation that arises when the county's offices are not open for business on the last day of the limitations period." Id. at 369. The court concluded that a plaintiff has the "minimal obligation" to make inquiry as to whether or not the courthouse is open when he has a filing due, as this is the "most elementary form of diligence." Id. at 370; see also Raley v. Lile, 861 S.W.2d 102, 105-06 (Tex. App.-Waco 1993, writ denied) (dismissing appeal for want of jurisdiction after taking judicial notice "that the Commissioners' Court of Johnson County did not designate Columbus Day as an official county holiday in 1992 and that the courthouse was open for business on October 12"); Seismic & Digit. Concepts, Inc. v. Digit. Res. Corp., 583 S.W.2d 442, 442 (Tex. App.-Houston [1st Dist] 1979, no writ) (holding that a motion to extend time for filing the statement of facts was untimely where attorney relied on a courthouse switchboard operator that the courthouse was closed on Good Friday, when in fact "[c]ourt personnel were present the entire day").2
Relying on Government Code Sections 662.003 and 662.021, which identify holidays for state officers and employees, the Frasiers argue Rule 4 extended their filing deadline to November 12. See Tex. Gov't Code Ann. §§ 662.003, .021.3Although Section 662.021 states what is included as a "legal holiday," its plain language and context make clear that it identifies state holidays for "state officers and employees."4 See id. § 662.021; see also id. § 662.003 (identifying "national," "state," and "optional" holidays). It is found in Title 6, "Public Officers and Employees," and Subtitle B, "State Officers and Employees," and it is surrounded by general state employment provisions such as management-to-staff ratios, see id. § 651.004, and state job classifications and pay rates, see id. § 654.011. See generally Michol O'Connor & John Zavitsanos, O'Connor's Texas Rules 4 C ivil Trials, Ch. 1(C), § 8 (2021) (explaining that Section 662.003 "was not enacted to explain the impact of legal holidays on filing deadlines" but rather "to inform state-paid employees which days are paid holidays").
O'Connor's Texas Rules * Civil Trials also contains a chart showing "Legal Holidays for Filing" and notes the following as a "Practice Tip": "To determine whether a certain day is a legal holiday for a particular county, call the court clerk or go to the county's website and search for 'holidays.'" O'Connor & Zavitsanos, supra, at Ch. 1(C), § 8.1.1(1); see also Michol O'Connor & David J. Beck, O'Connor's Texas Civil Practice and Remedies Code Plus, at C-67 (2021-2022) (containing a "Legal Holidays for Purposes of Filing Chart" and noting that "[f]iling deadlines are extended when a court closes for a holiday").
The Legislature has shown in plain language when it intends for Section 662.003's holidays to be read into other statutes. See, e.g., Tex. Elec. Code Ann. § 1.006(f)(2) (defining "State holiday" as "a state holiday under Sections 662.003(b)(1) through (6), Government Code"); Tex. Util. Code Ann. § 251.002(9) (defining "Legal holiday" to mean "a holiday specified as a legal holiday by Subchapter B, Chapter 662, Government Code"); Tex. Hum. Res. Code Ann. § 48.002(a)(9) (defining "Legal holiday" to mean "a state holiday listed in Subchapter B, Chapter 662, Government Code, or an officially declared county holiday"); cf. Tex. Civ. Prac. & Rem. Code Ann. § 16.072 (referring to "Saturday, Sunday, or holiday"). The supreme court has not amended Rule of Civil Procedure 4 or Rule of Appellate Procedure 4.1 to refer to Section 662.003 or Section 662.021.
While the supreme court has addressed situations where the clerk's office is closed on a holiday, it has not addressed those situations where it is open on a "national holiday," "state holiday," or "optional holiday." See Tex. Gov't Code Ann. § 662.003(a)-(c). It has held that "legal holiday," as used in Rule 4 "includes a day which the commissioners court in the county in which the case is pending has determined to be a holiday, or on which the clerk's office for the court in which the case is pending is officially closed." Miller Brewing Co., 829 S.W.2d at 772. It has even expanded the holding of Miller to Civil Practice and Remedies Code Section 16.072, holding that Section 16.072 is broader than either Rule of Civil Procedure 4 or 5 "because its language suggests that holidays include days when county offices are not open for business." Martinez v. Windsor Park Dev. Co., 833 S.W.2d 950, 951 (Tex. 1992).
If, as the majority opinion holds, a "legal holiday" under Civil Practice and Remedies Code Section 16.072 includes a "national holiday," it must also include a "state holiday" because Section 662.021 defines a "legal holiday" to include both national and state holidays. This then leads to the absurd result that limitations expiring on the nineteenth day of January ("Confederate Heroes Day"), the second day of March ("Texas Independence Day"), the twenty-first day of April ("San Jacinto Day"), and the twenty-seventh day of August ("Lyndon Baines Johnson Day")-each a "state holiday" under Government Code Section 662.003(b)-also extends a limitations period even though most courthouses and clerk's offices are open on those days. See Tex. Gov't Code Ann. § 662.003(b)(1), (2), (3), (5); see also ZYZY Corp. v. Hernandez 345 S.W.3d 452, 455-56 (Tex. App.-San Antonio 2011, no pet.) (concluding that the filing deadline under Section 16.072 was extended by the closure of the Bexar County District Clerk's office on April 27 for the "Battle of Flowers" holiday). And an additional problem arises because "legal public holidays" as defined by federal law do not equate to "national holiday[s]" as defined by state law. Compare 5 U.S.C.A. § 6103, with Tex. Gov't Code Ann. § 662.003(a).
If "holiday" is defined to include all holidays described in the Government Code, it would also include the "optional holidays" of Rosh Hashanah, Yom Kippur, Good Friday, and Cesar Chavez Day. See Tex. Gov't Code Ann. §§ 662.003(c), .013.
The majority says that there are "practical complications" that would arise under an interpretation that would render the Frasiers' suit time-barred. The Frasiers express this as a concern that the last day of any statute of limitations "would vary from county to county" Similarly, the majority is concerned that "the vagaries of county politics" could impact tolling provisions by leading to venue shopping and that "a county by fiat" could render Rule 4 inapplicable However, these alleged concerns are just as aptly directed at situations when the courthouse is closed as opposed to open See Miller Brewing Co, 829 S.W.2d at 772 ('''[L]egal holiday,' as used in Rule 4, Tex R Civ P, includes a day in which the commissioners court in the county in which the case is pending has determined to be a holiday, or on which the clerk's office for the court in which the case is pending is officially closed") And this concern also ignores the fact that the Legislature has given to county commissioners courts the authority to set hours and days that their employees work and hence when their places of work-the courthouses-are open and closed See, eg, Tex Loc Gov't Code Ann § 157032 (granting the commissioners court the authority to adopt and enforce rules on the hours of work of employees); see also Zidell, 643 S.W.2d at 201 (Gammage, J, concurring) ("A holiday declared by a lawfully empowered local governing body is certainly not an 'illegal' or 'non-legal' holiday, even though not declared in statutory form by the legislature. The existence of 254 counties creates the possibility of 254 separate practices . . . .").
While the majority also expresses concern that counties on an "ad hoc basis" could alter what days are holidays, the cases are replete with circumstances where a specific county has closed its courthouse doors for a reason unique to that county. See Walles v. McDonald, 889 S.W.2d 236, 237 n.2 (Tex. 1994) (noting that "[t]hough neither day was an official state or federal holiday, Orange County Commissioners had voted in a public meeting to declare [certain days] local holidays"); ZYZY Corp., 345 S.W.3d 452 at 455-56 (noting that the Bexar County District Clerk's office was closed for the "Battle of Flowers" holiday); Garcia v. Vera, No. 01-05-01161-CV, 2006 WL 2865033, at *2-3 (Tex. App.-Houston [1st Dist] Oct. 5, 2006, no pet.) (mem. op) (noting that a litigant was unable to file a motion for new trial because the courthouse was closed as a result of a mandatory evacuation order issued by the mayor in preparation for Hurricane Rita); Boone v. St. Paul Fire & Marine Ins. Co., 968 S.W.2d 468, 470-71 (Tex. App.-Fort Worth 1998, pet. denied) (holding that the fact that the district clerk's office opened two hours late due to inclement weather did not make the entire day a legal holiday thereby extending time to file petition). Similarly, statutes envision the closing of courthouses or clerk's offices for different reasons that vary from county to county. See, e.g., Tex. Gov't Code Ann. § 552.2325(b), (d), (e) (allowing the temporary suspension of requirements of the Texas Public Information Act to those "impacted by a catastrophe" as determined by a "governmental body") and Tex. Prop. Code Ann. § 51.002(b-1) (allowing notices to be posted "after the courthouse or county clerk's office reopens for business" if "the courthouse or county clerk's office is closed because of inclement weather, natural disaster, or other act of God"). This is the natural consequence of local government control and presents no more of a problem to the running of limitations than it does to any other situation. And it further bolsters the reason that the open/closed scenario should be determinative in this situation involving the statute of limitations.
With the advent of electronic filing, it is arguable that the distinction between the clerk's office being open or closed is, for most purposes, irrelevant. However, until the rules of procedure or the statutes are amended to address this situation, I would hold that a day on which the clerk's office is open does not extend a filing deadline. Since I would also affirm the granting of the motion for summary judgment based on the statute of limitations, I respectfully dissent.
Electronic filing has been mandatory for all attorneys filing non-juvenile civil cases in district courts, statutory county courts, constitutional county courts, and statutory probate courts in Tarrant County since January 1, 2014. See Amended Order Requiring Electronic Filing in Certain Courts, Misc. Docket No. 13-9164, Paragraphs 1-2 (Tex. Dec. 9, 2013).
"Attorneys practicing in courts where electronic filing is available but not mandated and unrepresented parties may electronically file documents, but it is not required." Tex.R.Civ.P. 21(f)(1).
Conversely, electronically-filed documents can be considered "filed" even when the courthouse is closed. See Tex. R. Civ. P. 21(f)(5) ("Unless a document must be filed by a certain time of day, a document is considered timely filed if it is electronically filed at any time before midnight (in the court's time zone) on the filing deadline."). But see Tex. R Civ. P. 21(f)(5)(A) ("[I]f a document is transmitted on a Saturday, Sunday, or legal holiday, it is deemed filed on the next day that is not a Saturday, Sunday, or legal holiday [.]").