Order filed November 21, 2013




                                      In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-13-00313-CV
                                    __________

                     DONNY LEE BRETZ, Appellant
                                         V.
                    THE STATE OF TEXAS, Appellee


                    On Appeal from the 70th District Court
                                 Ector County, Texas
                         Trial Court Cause No. A-17,040


                                     ORDER
      On October 18, 2013, Donny Lee Bretz filed a notice of appeal from the
denial of his motion to rescind an order to withdraw funds from his inmate trust
fund account. The trial court noted on the bottom of a letter sent by Bretz to the
trial court regarding the earlier filed motion that relief was denied, and the court
signed and dated the denial on August 21, 2013. Upon receipt of the docketing
statement and the notice of appeal, this court wrote Bretz and informed him that his
notice of appeal appeared to be untimely under TEX. R. APP. P. 26.1. We requested
that Bretz respond and either provide proof that the notice of appeal was timely
filed or otherwise show grounds to continue this appeal. Bretz filed a response
indicating that he did not receive notice of the trial court’s denial until October 9,
2013, because the district clerk did not mail such notice until October 4, 2013, as
reflected by the postmark on the envelope sent to him from the district clerk. Upon
receiving notice of the denial, Bretz promptly filed a notice of appeal. We abate
this appeal.
      TEX. R. CIV. P. 306a 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, the 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
or his attorney first either received a notice of the judgment or acquired actual
knowledge of the signing and that this date was more than twenty days after the
judgment was signed.” TEX. R. CIV. P. 306a.5; see also TEX. R. APP. P. 4.2(b).
After hearing the motion, the trial court shall sign a written order indicating 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).
      Bretz has not presented to this court any finding by the trial court reflecting
the date that he received notice or acquired actual knowledge of the denial of his
motion to rescind.    Therefore, we will abate this appeal to provide Bretz an
opportunity to file with the trial court the appropriate motion and obtain the
requisite findings from that court. If a hearing is conducted, it may be conducted
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by telephone or affidavit; a bench warrant is not required. The trial court clerk is
directed to furnish the trial court’s findings to this court on or before December 23,
2013. Upon receipt of the trial court’s findings, this appeal will be reinstated.
      The appeal is abated.


                                                     PER CURIAM


November 21, 2013
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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