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Rule 356. Time for Perfecting Appeal (1981)

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(a) When a bond for costs on appeal is required, the bond or affidavit in lieu thereof shall be filed with the clerk within 30 days after the judgment is signed, or, within 90 days after the judgment is signed if a timely motion for new trial has been filed by any party. If a deposit of cash is made in lieu of bond, the same shall be made within the same period.

(b) An extension of time may be granted by the appellate court for late filing of a cost bond or making the deposit required by subdivision (a) or for filing the affidavit, if such bond is filed, deposit is made, or affidavit is filed within 15 days after the last day allowed and, within the same period, a motion is filed in the appellate court reasonably explaining the need for such extension. If a contest to an affidavit in lieu of bond is sustained, the time for filing the bond is extended until 10 days after the contest is sustained unless the trial court finds and recites that the affidavit was not filed in good faith.

(c) When a bond for costs on appeal is not required by law, the appellant shall in lieu of a bond file a written notice of appeal with the clerk or judge which shall be filed within the time otherwise required for filing the bond. Oral notice or a recital in the judgment of notice does not comply with this rule. Such notice shall be sufficient if it states the number and style of the case, the court in which pending, and that appellant desires to appeal from the judgment or some designated portion thereof. Copy of the notice shall be mailed by counsel for appellant in the same manner as the mailing of copies of the appeal bond.

Amended by order of June 10, 1980, eff. Jan. 1, 1981: By paragraph (a) the period for perfecting appeal runs from the date the judgment is signed (thirty days if no motion for new trial, 90 days if there is a timely motion for new trial). Paragraph (b) permits a 15 day extension on motion to appellate court. One whose affidavit of inability to pay costs is denied may file a bond within ten days after the contest is sustained. Paragraph (c) is moved from Rule 354 and is amended to state expressly that a written document, not an oral statement or recital in the judgment, must be filed.

COMMENTS: (1) Since time runs from the date the judgment is signed, the rule eliminates the pitfall of computing time from an order signed after the motion for new trial is overruled by operation of law.

(2) This rule, and the amendments to Rule 329b, establish a period of thirty days after the judgment in which the losing party must (a) perfect his appeal, (b) file a motion for new trial, and any amendments to a motion for new trial, or (c) let the judgment become final, subject only to a bill of review. This period, though jurisdictional, is more easily remembered and is less likely to be overlooked.

(3) The period of ninety days for perfecting the appeal when a motion for new trial has been filed is easily computed and not likely to be overlooked. It allows sixty days additional for disposition of the motion for new trial. This compares with the former maximum time of approximately one hundred five days.

(4) The additional sixty days is allowed, even though the motion for new trial is filed by a party other than the appellant. This change eliminates false reliance on a motion for new trial filed by another party, and changes the rule applied in Angelina County v. McFarland, 374 S.W.2d 417 (Tex. 1964), and Neuhoff Bros. Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434 (1959).

(5) Jurisdictional periods are simplified. There is only one if no motion for new trial is filed (perfecting appeal within 30 days). There are two if a motion for new trial is filed (filing motion for new trial within 30 days from time judgment is signed and perfecting appeal within 90 days). The rule eliminates the requirement that a motion for new trial be filed within 10 days and an amended motion within 20 days, and the 60 day period for filing the transcript is no longer jurisdictional, although noncompliance may be a matter for dismissal under Rule 387.

(6) "Signing" is used in place of "rendition" to conform to Burrell v. Cornelius, 570 S.W.2d 382, 384 (Tex. 1978).

(7) The provision for an extension of the time for filing the bond, certificate or affidavit is limited to the situation in which the bond, certificate or affidavit is tendered for filing within fifteen days after the last day for filing and a motion for extension is filed in the appellate court within the same period. Requiring the bond or affidavit to be tendered avoids further delay in the appellate timetable pending determination of the motion to extend.

(8) The notice of appeal which is required when no bond is required, must be a written notice filed with the clerk or judge and not by alternatives such as an oral notice or a recital in the judgment that notice of appeal was given.