Opinion
NO. 14-19-00056-CV
02-21-2019
FRANCO GAMBOA, Appellant v. LIZETTE NOEMI ALECIO, Appellee
On Appeal from the 310th District Court Harris County, Texas
Trial Court Cause No. 2018-26302
ABATEMENT ORDER
This appeal is from a judgment signed October 17, 2018. The notice of appeal indicates it was deposited in the prison mail on January 7, 2019. The district clerk filed the notice of appeal on January 16, 2019.
If a party affected by a judgment has not—within 20 days after the judgment 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. See Tex. R. App. P. 4.2(a). The procedure to gain additional time is governed by Texas Rule of Civil Procedure 306a.5. Tex. R. App. P. 4.2(b).
Texas Rule of Civil Procedure 306a.5, in turn, provides in relevant part:
[T]he party adversely affected [by the lack of notice or actual knowledge of the judgment] is required to 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.Tex. R. Civ. P. 306a(5). 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 was signed. Tex. R. App. P. 4.2(c); see also LDF Constr., Inc. v. Texas Friends of Chabad Lubavitch, Inc., 459 S.W.3d 720, 724 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (date of notice or actual knowledge must be established by competent proof and included in written order signed by trial judge).
The clerk's record contains documents suggesting appellant did not receive notice of the judgment within 20 days after the judgment was signed. Appellant sent a letter to the district clerk, which was mailed on an unknown date and was filed on November 5, 2018, inquiring about the status of his case. He wrote a similar letter on December 3, 2018, which was filed on December 11, 2018.
Accordingly, we ABATE this appeal and remanded to the trial court for a hearing and entry of an 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 by April 22 , 2019 .
The 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 order. If the parties do not request a hearing, the court coordinator of the trial court shall set a hearing date and notify the parties of such date.
PER CURIAM Panel consists of Justices Christopher, Hassan, and Poissant.