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Rule 381. Time for Filing Statement of Facts in Trial Court

TEXT

(a) When an appeal is taken from a judgment rendered in a civil cause tried in either the district court, county court, or county court at law, the party appealing shall have fifty days after final judgment or order overruling motion for new trial, if such motion is filed, or perfection of writ of error, within which to prepare and file his statement of facts and bills of exception in the trial court.

(b) Upon application of the party appealing, the judge of the court may, in term time or vacation, for good cause shown, extend the time for filing such statement of facts and bills of exception, but the time shall not be extended in any case so as to delay the filing thereof beyond the time for filing the transcript, bills of exceptions, and statement of facts in the Court of Civil Appeals, as prescribed by these rules or as extended by said court.

Source: Art. 2246, as amended, with minor textual change.

Caveat: This article was amended in 1939, the effective date of the amendment being subsequent to the effective date of the Rule Making Act.

Oct. 29, 1940, eff. Sept. 1, 1941.

AMENDMENTS

Oct. 10, 1945,eff. Feb. 1, 1946

April 12, 1962, eff. Sept. 1, 1962

June 10, 1980, eff. Jan. 1, 1981

Repealed by order of April 10, 1986, eff. Sept. 1, 1986.

ADVISORY OPINIONS

Question: Does the trial court have the authority and discretion to extend the fifty-day period under Rule 381 where application for such extension is submitted subsequent to the expiration of the fifty-day period but prior to the expiration of the sixty-day period within which the Statement of Facts must be filed in the appellate court?

Answer: Yes. Rule 381, Subdivision (b) authorizes the trial court to extend the time for filing the Statement of Facts. The rule contains no provision limiting the time when it may be filed.

Rule 386 governing the time for filing Statement of Facts in Court of Civil Appeals contains a provision fixing the time within which request for extension must be made. The absence of such provision in Rule 381 would seem to sustain the conclusion that the trial court may grant an extension requested subsequent to the expiration of the fifty-day period, providing such extension does not delay the filing within the required time in the Court of Civil Appeals.

The following obiter dicta statement in Seaboard Fire & Marine Ins. Co. v. Halbert, et al., 173 S.W.2d 180 (Tex. Civ. App.-El Paso 1943), sustains this view:

"Also it is thought that if an approval of the Statement of Facts is obtained from the trial judge during the sixty-day period, but after the expiration of the fifty days, same may be filed in the trial court during the sixty-day period."

10 Tex. B.J. 109 (1947).