
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-11-00110-CV


Jon Alan Ashcraft, Appellant

v.

Estate of Jay Arden Ashcraft and Richard Trachtenberg, Administrator, Appellees




FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY
NO. C-1-PB-10-000318, HONORABLE GUY S. HERMAN, JUDGE PRESIDING


M E M O R A N D U M   O P I N I O N


		On February 14, 2011, Appellant Jon Alan Ashcraft, appearing pro se, filed a notice
of appeal from the probate court's declaratory judgment, which was signed on October 6, 2010.  On
June 8, 2011, pursuant to rule of appellate procedure 42.3, this Court notified Ashcraft that the
notice of appeal appeared to be untimely and that his appeal would be dismissed unless he
provided information on or before June 20, 2011, to show the jurisdiction of this Court.  See Tex.
R. App. P. 42.3.  In response to our letter, Ashcraft informed us that he is incarcerated, the
probate court denied his motion for issuance of bench warrant and his motion to participate in the
hearing by teleconference, and he did not receive notice of the signing of the judgment until
November 15, 2010, more than twenty days after the judgment was signed.  Ashcraft further
informed us, and the clerk's record confirms, that on November 30, 2010, he filed a motion pursuant
to rule of civil procedure 306a to establish the operative date of the judgment, which he re-urged on
January 4, 2011, and January 23, 2011.  See Tex. R. Civ. P. 306a(5).
		Rule 306a of the rules of civil procedure provides that if within twenty days after a
judgment is signed, a party adversely affected by it has neither received the required notice nor
acquired actual knowledge of the judgment, then appellate deadlines shall begin to run from the date
that such party received notice or acquired actual knowledge of the rendition of judgment.  Tex. R.
Civ. P. 306a(4); see also Tex. R. App. P. 4.2(a).  In order to establish the application of the rule, the
adversely affected party must prove in the trial court on sworn motion and notice the date on which
the party first received notice of the judgment or acquired actual knowledge of it and that this date
was more than twenty days after it was signed.  Tex. R. Civ. P. 306a(5); Tex. R. App. P. 4.2(b). 
After hearing the motion, the trial court must sign a written order that finds the date when the party
first received notice or acquired actual knowledge of the signing of the judgment.  Tex. R. App. P.
4.2(c).
		The probate court did not rule on Ashcraft's motion.  See Tex. R. App. P. 4.2(c). 
Accordingly, we abate this appeal and remand the cause to the probate court to conduct the requisite
hearing and to sign an order ruling on Ashcraft's motion.  See id.  After the hearing, the probate court
shall cause a supplemental clerk's record with a copy of the order to be filed with this Court.  The
supplemental clerk's record shall be filed no later than 45 days following the date of this opinion.






						__________________________________________
						Melissa Goodwin, Justice
Before Chief Justice Jones, Justices Henson and Goodwin
Abated
Filed:   July 6, 2011
