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Rule 381. Time for Filing Bills of Exception (1981)

TEXT

If any matter pertinent to the appeal is not included in the papers and orders filed in the cause or in the record made by the official reporter, the party appealing shall have 60 days after the judgment is signed, or, if a timely motion for new trial (or motion to modify the judgment) has been filed by any party, he shall have ninety days after the judgment is signed, within which to prepare and complete a bill of exception as provided by Rule 272. When so completed, the bill may be included in the transcript; otherwise, it may be included in a supplemental transcript under Rule 428 on motion showing good cause.

Amended by order of June 10, 1980, eff. Jan. 1, 1981: The rule has been rewritten. Formal bills of exception are now rarely required because it is sufficient under Rules 272, 372, and 376b that the matters complained of be shown in the statement of facts. Only where the statement of facts fails to show some material matter is a separate bill of exceptions needed. Accordingly, Rule 381 has been redrafted to serve this purpose. The time for filing such a bill is made to run from the date the judgment is signed, in conformity with other amendments, and the manner of including it in the record is specified.

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).