                            Fourth Court of Appeals
                                   San Antonio, Texas
                                         August 14, 2014

                                      No. 04-14-00487-CV

                                        Mary Alice SAIZ,
                                           Appellant

                                                v.

               SUSSER HOLDINGS CORPORATION AND STRIPES LLC,
                                 Appellee

                  From the 38th Judicial District Court, Uvalde County, Texas
                             Trial Court No. 2012-02-28,530-CV
                      The Honorable Camile G. Dubose, Judge Presiding


                                         ORDER
        On July 25, 2014, we issued a show cause order questioning our jurisdiction over this
appeal. Based on the record before us, it appeared that the notice of appeal was untimely. The
motion for new trial was file-marked by the trial court clerk on April 10, 2014, which was more
than thirty days after the trial court’s February 24, 2014 judgment was signed. We ordered
appellant to show cause in writing why this appeal should not be dismissed for lack of
jurisdiction.

        Appellant’s counsel has filed a response to our order, explaining that he mailed the
motion for new trial and a check for the filing fee to the trial court clerk on March 22, 2014, but
that the motion and the check were returned to him by the trial court clerk because he had failed
to sign the check. Appellant’s counsel further explains that he signed the check and returned the
motion for new trial and the check to the trial court clerk for filing. Appellant’s response
includes an affidavit from counsel and additional documentation showing that the motion for
new trial was mailed to the trial court clerk on March 22, 2014. Appellant’s counsel asserts that
we have jurisdiction over this appeal and should retain the case on our docket. We agree with
appellant’s counsel.

       Generally, a document is considered “filed” when it is tendered to the clerk, or otherwise
put under the custody or control of the clerk. Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex.
1993) (holding that a motion for new trial was conditionally filed when it was tendered to the
clerk without payment of the filing fee and that the filing was completed when the filing fee was
paid). Additionally, under the mailbox rule, service is complete upon deposit of the document,
postpaid and properly addressed, in the mail. See TEX. R. CIV. P. 21a; TEX. R. APP. P. 9.2(b).
Here, the motion for new trial was conditionally filed with the trial court clerk on the date it was
mailed, and this date controls for purposes of determining appellate deadlines. See Jamar, 868
S.W.2d at 319 (concluding the date the motion for new trial was tendered to the trial court clerk
controlled for appellate purposes of calculating the appellate timetable); Spellman v. Hoang, 887
S.W.2d 480, 482 (Tex. App.—San Antonio 1994, no writ) (concluding that the motion for new
trial was filed at the time it was tendered to the trial court clerk and that payment of the filing fee
retroactively completed the filing so as to extend the appellate timetable). Thus, for purposes of
determining the deadline for filing the notice of appeal, the motion for new trial was filed on
March 22, 2014, which was less than thirty days after the trial court’s judgment was signed.

        Because appellant’s motion for new trial was timely filed on March 22, 2014, appellant’s
notice of appeal was due ninety days later, on May 25, 2014. See TEX. R. APP. P. 26.1(a).
Appellant timely filed her notice of appeal on May 23, 2014. Because appellant’s notice of
appeal was timely filed, we have jurisdiction over this appeal. We, therefore, ORDER this appeal
retained on our docket.

       Appellant is ORDERED to file a docketing statement no later than ten days from the
date of this order. The reporter’s record, if any, is due thirty days from the date of this order.



                                                       _________________________________
                                                       Karen Angelini, Justice

       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 14th day of August, 2014.



                                                       ___________________________________
                                                       Keith E. Hottle
                                                       Clerk of Court
