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Rule 4. Computation
TEXT
In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Sunday or a legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a holiday.
Source: Federal Rule 6(a).
Change: Omission of the Federal provision excluding intermediate Sundays or holidays when the period of time is less than seven days and the Federal reference to half-holidays.
Oct. 29, 1940, eff. Sept. 1, 1941.
AMENDMENTS
July 26, 1960, eff. Jan. 1, 1961
ADVISORY OPINIONS
Question: Rule 101 reads that the citation shall command the defendant to answer on "the Monday next after the expiration of twenty days from the date of service thereof." If the twentieth day falls upon Sunday, will defendant be required to answer on the Monday immediately following or will he be justified in awaiting the second Monday in view of Rule 4 which reads that, in computing "any period of time" prescribed or allowed by the rules "the last day of the period" is to be "included unless it is a Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a holiday”?
Answer: Defendant will be required to answer on the Monday immediately following the expiration of the twenty days because the time between service and answer is a traditional period in Texas procedure and seems to be the principal interval which Rule 101 has in view. In reason the last day of the intermediate twenty-day period is not within the purview of Rule 4 for the above reason and for the further reason that nothing has to be done on that day that requires the presence or aid of an official who would normally be unavailable on a Sunday or legal holiday.
5 Tex. B.J. 15 (1942) reprinted in 8 Tex. B.J. 6 (1945).
Question: In forcible entry and detainer, Rule 742 provides that citation shall be served at least six days before the return day thereof. In the computation of time, Rule 4 provides that the day of the act is not to be included, but the last day of the period so computed is to be included. Forcible entry and detainer, being a special proceeding, is the time under Rule 742 governed by Rule 4? For illustration, could a citation in forcible entry and detainer served on the defendant on May 21, 1946, be properly returnable on May 27, 1946?
Answer: It is the opinion of the Subcommittee that Rule 4 is applicable in construing Rule 742, and that a citation in forcible entry and detainer served on the defendant on May 21st, 1946, would be properly returnable on May 27th, 1946.
Rule 4 provides a general rule of construction, and the fact that forcible entry and detainer is a special proceeding does not make Rule 4 inapplicable if it is otherwise pertinent. By its express terms Rule 4 may be invoked "in computing any period of time prescribed or allowed by these Rules, by order of court, or by any applicable Statute .... "
It will be noticed that the service of citation provided for in a forcible entry and detainer suit under Rule 742 calls for service upon the defendant "at least six days before the return day thereof," and its terminology does not follow the wording of Rule 101 in regard to citation in the District and County Courts which provides that the defendant must answer on the Monday next after the expiration of twenty days from the date of service."
Under the proper construction of Rule 742, in the light of the provisions of Rule 4, service on May 21st would constitute service six days before May 27th, and accordingly the citation would be properly returnable on May 27th.
9 Tex. B.J. 262 (1946).
Question: Article 4632 of the Revised Civil Statutes prescribes that a suit for divorce shall not be heard or the divorce granted before the expiration of thirty days after the same is filed. Under the decisions rendered prior to the adoption of the rules, the court held that thirty full days must elapse between the filing of the suit and the date of trial not including the date of such filing or the date of such trial. Rule No. 4 prescribes that in computing any period of time prescribed or allowed by these rules by order of court or by applicable statute, the day of the act shall not be included but that the last day of said period shall be included in computing the time. Under Rule 4 is it legal to try a divorce suit on the 30th day after it is filed not including the day of filing of the suit?
Answer: Under the plain provisions of Rule No. 4, it is the opinion of the committee that the trial of divorce suit may be had on the 30th day after the same has been filed not counting the day of filing. This would permit the trying of a case one day earlier than was permitted under the law existing prior to the effective date of the rules. Since this committee does not believe that the provisions of the statute are jurisdictional but rather a matter of procedure, we believe that the provisions of Rule 4 should be applied to such a cause of action.
We are aware of the cases of Eldridge v. Eldridge, 259 S.W. 209 (Tex. Civ. App.-San Antonio 1924), and Snow v. Snow, 223 S.W. 240 (Tex. Civ. App.-San Antonio 1920), which hold under the law prior to the effective date of the rules that a judgment taken on the 30th day was void, thus indicating that it was a matter of jurisdiction. We believe the reasoning in Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77 (1933) by the Supreme Court would indicate that Article 4632, was not jurisdictional. The Aucutt case held that Article 4631 having to do with residence of the plaintiff was not jurisdictional but rather a matter of venue. Applying the same rule, we believe that Article 4632 is a matter of procedure rather than jurisdiction. This is supported also by the heading of Article 4632 which is "Procedure."
10 Tex. B.J. 109 (1947).