Austin v. Falls of Kirkwood, LP, 01-26-00465-CV, October 06, 2026.
On appeal from 215th District Court, Harris County, Texas
Synopsis
A party’s assertion in a motion for new trial that it received late notice of a judgment does not reset the appellate timetable. To invoke Texas Rule of Civil Procedure 306a, the party must satisfy the sworn-motion, notice, hearing, and proof requirements and obtain a trial-court finding establishing the date of notice or actual knowledge; absent that record, an untimely notice of appeal must be dismissed for lack of jurisdiction.
Relevance to Family Law
The Rule 306a procedure applies directly to final divorce decrees, SAPCR orders, property-division judgments, enforcement judgments, and other appealable family-law orders. When counsel or a client does not receive notice of a signed order within twenty days, the appellate deadlines do not reset automatically. Family-law litigators must promptly develop sworn proof, obtain a hearing, and secure a written trial-court finding regarding the first date of notice or actual knowledge; otherwise, the appellate court ordinarily will calculate the deadline from the date the order was signed.
Case Summary
Fact Summary
The trial court signed a final judgment on January 8, 2026. The appellant filed a motion for new trial on February 21, 2026—more than thirty days after the judgment—and filed his notice of appeal on May 4, 2026.
Under the ordinary appellate timetable, the notice of appeal was due February 9, 2026, because the thirtieth day fell on a weekend. With the fifteen-day extension permitted by Texas Rule of Appellate Procedure 26.3, the final potential deadline was February 24, 2026. The untimely motion for new trial did not extend the appellate deadline. The court also observed that even if the motion for new trial had been timely under the ordinary timetable, the May 4 notice of appeal still would have been filed after both the ninety-day deadline and the corresponding fifteen-day extension period.
After the First Court of Appeals notified the appellant that the appeal was subject to dismissal, the appellant responded that he did not receive the judgment until February 14, 2026. He argued that Rule 306a shifted the beginning of the post-judgment timetable to that date, which would have made his notice of appeal due by May 15, 2026.
The appellant’s motion for new trial mentioned the alleged February 14 receipt date. But he did not file the formal sworn motion contemplated by Rule 306a(5), prove the date of notice or actual knowledge at a hearing, or obtain a trial-court finding establishing the operative date. Although the trial court later denied the motion for new trial, that order did not supply the missing Rule 306a finding.
Issues Decided
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Whether a statement in a motion for new trial identifying the date on which a party allegedly received the judgment constitutes proof sufficient to invoke Rule 306a.
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Whether the appellate timetable resets when the party does not comply with Rule 306a(5)’s sworn-motion, notice, hearing, and proof requirements.
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Whether the court of appeals had jurisdiction over a notice of appeal filed after the ordinary deadline and extension period when the record contained no trial-court finding establishing a later notice date.
Rules Applied
Texas Rule of Appellate Procedure 26.1 generally requires a notice of appeal to be filed within thirty days after the judgment is signed. If a qualifying post-judgment motion is timely filed, the deadline generally extends to ninety days after the judgment is signed. Texas Rule of Civil Procedure 329b requires a motion for new trial to be filed within thirty days after the judgment is signed, subject to a properly established Rule 306a date.
Texas Rules of Appellate Procedure 10.5(b) and 26.3 provide a fifteen-day period in which an appellant may seek an extension of the notice-of-appeal deadline. Filing after that fifteen-day period does not invoke the appellate court’s jurisdiction.
Texas Rule of Civil Procedure 306a(4) provides that, when a party does not receive notice or acquire actual knowledge of a judgment within twenty days after it is signed, applicable post-judgment periods may begin on the date the party first received notice or acquired actual knowledge. The substituted date cannot be more than ninety days after the judgment was signed.
Rule 306a(5) establishes the procedure for proving the later date. The party must file a sworn motion, provide notice, and prove in the trial court the date on which the party or counsel first received notice or acquired actual knowledge of the judgment. Texas Rule of Appellate Procedure 4.2 likewise requires the trial court to make a finding regarding that date, with the order and related documents included in the appellate record.
The court relied on Tran v. Hong Kong Development Corp., which explains that post-judgment timetables may run from the date of official notice or actual knowledge when the party proves that the date was more than twenty days after the judgment was signed. It also relied on Florance v. State for the requirement that a party comply with the sworn-motion, notice, and hearing requirements and prove receipt more than twenty—but fewer than ninety-one—days after signing. Finally, the court cited Samuels v. Perry for the consequence of failing to obtain a trial-court ruling establishing the date of notice.
Application
The court began with the January 8 signing date. Because the appellant did not file his motion for new trial within thirty days of that date, the motion did not extend the ordinary appellate timetable. His notice of appeal therefore was due by February 9, or by February 24 if he properly invoked the fifteen-day extension procedure. The May 4 notice was untimely under either calculation.
The appellant attempted to establish a later timetable by pointing to the statement in his motion for new trial that he received the judgment on February 14. The court rejected that argument because the statement was not a substitute for the procedure mandated by Rule 306a(5). A claimed date of receipt is not self-proving, and the mere inclusion of that date in another post-judgment motion does not establish the jurisdictional facts necessary to alter appellate deadlines.
The record contained no compliant sworn Rule 306a motion, no proof presented through the required procedure, and no trial-court finding establishing February 14 as the date of first notice or actual knowledge. The trial court’s order denying the motion for new trial did not constitute the required finding. Consequently, the court of appeals was required to calculate the appellate deadline from the January 8 signing date.
Holding
The First Court of Appeals held that merely reciting an alleged date of receipt in a motion for new trial does not satisfy Rule 306a(5). A party seeking the benefit of a later start date must comply with the rule’s sworn-motion, notice, hearing, and evidentiary requirements.
The court further held that the absence of a trial-court finding establishing the date of first notice or actual knowledge prevented the appellant from invoking the modified timetable under Rule 306a and Rule of Appellate Procedure 4.2. Because the notice of appeal was untimely under the ordinary timetable, the court dismissed the appeal for lack of jurisdiction and dismissed all pending motions as moot.
Practical Application
In a divorce or SAPCR, counsel should not assume that the appellate timetable begins when the signed decree or order arrives by email. The clerk’s failure to provide prompt notice, a breakdown in an electronic filing notification, or delayed transmission of an order may support Rule 306a relief, but none of those circumstances automatically changes the deadline.
A motion for new trial that simply says, “Counsel first received the decree on March 15,” is insufficient. The safer practice is to file a separate, sworn Rule 306a(5) motion that identifies both when the party and when counsel first received notice or acquired actual knowledge. The motion should request an expedited evidentiary hearing and a written order containing the necessary finding.
The distinction is especially important when a court signs a final divorce decree after taking rendition under advisement, signs a modification order without a conventional submission setting, or signs an enforcement judgment following a remote hearing. It also matters when competing proposed orders have been submitted and counsel does not know which version the court ultimately signed.
Counsel should continue calculating all possible deadlines conservatively while the Rule 306a motion is pending. If a notice of appeal can still be filed under the earliest plausible deadline, file it. A pending Rule 306a motion should not be treated as assurance that the appellate timetable has been reset.
The Rule 306a finding should identify the precise date on which the party or the party’s attorney—whichever occurred first—received notice or acquired actual knowledge of the signed order. Counsel should then ensure that the clerk’s record contains the sworn motion, notice of hearing, evidence or reporter’s record, and signed order containing the finding required by Texas Rule of Appellate Procedure 4.2.
Checklists
Immediate Response to Suspected Late Notice
- Confirm the date on which the judgment, decree, or appealable order was signed.
- Determine separately when the client first received notice or acquired actual knowledge.
- Determine separately when every attorney of record first received notice or acquired actual knowledge.
- Preserve emails, electronic filing notices, clerk communications, envelopes, docket entries, and file metadata.
- Calculate deadlines from the original signing date before considering Rule 306a.
- Calculate the potential modified deadlines from the first date of notice or actual knowledge.
- Confirm that the claimed notice date is more than twenty days, but no more than ninety days, after the order was signed.
- File a protective notice of appeal whenever a plausible deadline remains open.
Preparing the Rule 306a(5) Motion
- Caption the filing expressly as a sworn motion under Texas Rule of Civil Procedure 306a(5).
- Identify the judgment or order by title and signing date.
- State the exact date on which the party first received notice or acquired actual knowledge.
- State the exact date on which counsel first received notice or acquired actual knowledge.
- Address which of those dates occurred first.
- Include facts showing that neither the party nor counsel received notice or acquired actual knowledge within twenty days after signing.
- Support the motion with a proper verification, affidavit, or unsworn declaration permitted by law.
- Attach available documentary evidence supporting the claimed date.
- Request an expedited evidentiary hearing.
- Serve all parties and preserve proof of service.
Proving the Operative Date
- Present admissible testimony or documentary evidence establishing the first date of notice or actual knowledge.
- Address both official notice and actual knowledge.
- Avoid relying solely on argument of counsel.
- Obtain a reporter’s record of the hearing.
- Ask the trial court to resolve any discrepancy between the client’s and counsel’s dates.
- Request an express finding of the date on which notice or actual knowledge was first received.
- Confirm that the date found by the court falls within Rule 306a’s permitted period.
Drafting the Proposed Order
- Identify the judgment or appealable order at issue.
- Recite the date on which that order was signed.
- State that neither the party nor counsel received notice or acquired actual knowledge within twenty days after signing.
- State the exact date on which the party or counsel first received notice or acquired actual knowledge.
- Include an express finding rather than merely granting the motion.
- Avoid an order that says only “Rule 306a motion granted.”
- Obtain the judge’s signature promptly.
- Request immediate filing and distribution of the signed order.
Protecting the Appellate Record
- Request inclusion of the sworn Rule 306a motion in the clerk’s record.
- Include the supporting affidavits, declarations, exhibits, and service documents.
- Include the hearing notice and signed Rule 306a order.
- Request the reporter’s record from the Rule 306a hearing.
- Review the appellate record to ensure that the trial court’s finding appears.
- Notify the court of appeals of the Rule 306a proceedings when appropriate under Rule of Appellate Procedure 4.2.
- Recalculate the notice-of-appeal deadline and all post-judgment deadlines from the date found by the trial court.
Family Law Crossover
The procedural mechanism in Austin applies whenever a family-law litigant seeks to move the starting date for post-judgment and appellate deadlines because notice or actual knowledge of a signed order was not received within twenty days. This can arise after a final divorce decree, final SAPCR order, property-division judgment, modification order, or appealable enforcement judgment.
The critical distinction is between the substantive basis for relief and the procedure required to establish it. Late notice may provide the factual basis for applying Rule 306a(4), but Rule 306a(5) supplies the mandatory mechanism: a sworn motion, notice to the other parties, a hearing, proof of the first date of notice or actual knowledge, and a trial-court finding. Rule of Appellate Procedure 4.2 then governs the use of that finding in the appellate proceeding.
Thus, a family-law practitioner cannot preserve appellate jurisdiction merely by inserting a late-notice allegation into a motion for new trial, motion to modify, or response filed in the court of appeals. The trial court must determine the operative date through the prescribed Rule 306a process, and the resulting finding must be made part of the appellate record.
Citation
Austin v. Falls of Kirkwood, LP, No. 01-26-00465-CV, slip op. (Tex. App.—Houston [1st Dist.] Oct. 6, 2026, no pet. h.) (mem. op.).
Full Opinion
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