Petition for Writ of Mandamus Denied and Memorandum Opinion filed
August 18, 2020.




                                       In The

                        Fourteenth Court of Appeals

                                 NO. 14-20-00351-CV

                        IN RE TANYA WILSON, Relator


                           ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                                335th District Court
                              Bastrop County, Texas
                          Trial Court Cause No. 383-335

                          MEMORANDUM OPINION

      On Monday, May 4, 2020, relator Tanya Wilson filed a petition for writ of
mandamus in the Third Court of Appeals. See Tex. Gov’t Code Ann. § 22.221; see
also Tex. R. App. P. 52. The Texas Supreme Court issued a transfer order on
March 4, 2020, transferring this cause to our court. In her petition, relator asks this
court to compel the Honorable Reva L. Towslee, presiding judge of the 335th
District Court of Bastrop County, to vacate an April 30, 2020 “order1” issued by
the trial court and to conduct a Texas Rule of Civil Procedure 306a(5) hearing to
determine when relator received actual notice that a judgment had been signed
from which she wishes to appeal. See Tex. R. Civ. P. 306a(5). In response, real-
party-in-interest, Joanna Shumaker, argues that realtor’s 306a motion was
insufficient to the extend the trial court’s plenary power to hold a hearing on the
motion. We agree with Shumaker and deny this petition for writ of mandamus.

       I.      Background

       On February 12, 2020, the trial court signed a final and appealable judgment
that adversely affected relator. On April 8, 2020, relator filed a notice of appeal.
On April 14, 2020, relator filed a request for findings of fact and conclusions of
law. On April 24, 2020, relator filed a motion to extend post-judgment deadlines
pursuant to Texas Rule of Civil Procedure 306a(4). See Tex. R. Civ. P. 306a(4).

       In her 306a motion, relator asked the trial court to determine the date relator
“acquired actual notice and received notice” of the trial court’s judgment pursuant
to Texas Rule of Civil Procedure 306a(4). Relator alleged that she did not receive
notice or acquire actual knowledge or the judgment until March 31, 2020. Relator
attached an affidavit to the motion stating, in relevant part,

       “I did not know that the Court signed a judgment until March 31, 2020.
       Before that date, I had no notice or actual knowledge of the judgment. If I
       had received notice of acquired knowledge of the Court’s judgment, I
       would have instructed my attorney to file a motion for a new trial and/or
       notice of appeal.”

       “I learned of the Court’s judgment when I received post-judgment
       discovery in the mail. To my knowledge, no notice of judgment was ever
       sent. I did not otherwise know the judgment existed until March 31, 2020,
       1
         The document signed by the trial court on April 30, 2020 is titled “The Court’s Response to the
Request for Findings of Fact and Conclusions of Law and for a Hearing on Defendant’s Motion to Extend
Post Judgment Deadlines.” The trial court lacked plenary power to enter an order on April 30, 2020.
      as I believed the case was still under advisement and that no judgment had
      yet been signed.”

Relator did not include an affidavit from her trial counsel stating when counsel had
learned of the judgment. Relator did not aver in her affidavit as to when her trial
counsel learned of the judgment. In her motion, relator stated that neither she nor
her attorney “learned by any other means, formal or informal, of the Court’s
judgment within 20 days after the judgment was signed.” The motion alleging that
trial counsel, who withdrew from relator’s representation on April 17, 2020, did
not receive notice or acquire actual knowledge of the judgment was not filed by or
signed by trial counsel, but instead her appellate counsel.

      The trial court did not set the motion for a hearing. On April 30, 2020, the
trial court signed a document captioned “The Court’s Response to the Request for
Findings of Fact and Conclusions of Law and For a Hearing on Defendant’s
Motion to Extend Post Judgment Deadlines.” That documents contains eight
findings and conclusions:

      1. Final judgment was signed by this court on February 12, 2020.

      2. The judgment was filed with the clerk on February 12, 2020 at 2:57 pm.

      3. Notice was sent to the attorneys of record by the District Clerk’s office.

      4. Notice of Appeal was filed by [relator] on April 8, 2020.

      5. Notice of Appeal is untimely filed.

      6. This court does not have the authority to make any further findings or
         conduct hearing in this case.

      7. The judgment in this case is final.

      8. The court is aware that the 14th Court of Appeals is considering that this
         appeal be dismissed.
      On May 4, 2020, relator filed a petition for writ of mandamus in this court
complaining of the trial court’s “ruling” on her 306a motion without hearing.

      II.    Standard of Review

      With certain exceptions, to obtain mandamus relief a relator must show both
that the trial court clearly abused its discretion and that relator has no adequate
remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.
2004) (orig. proceeding).

      III.   Analysis

      When a final judgment or other appealable order is signed, the clerk of the
court shall immediately give notice to the parties or their attorneys by first-class
mail advising that the judgment or order was signed. Tex. R. Civ. P. 306a(3). If
within twenty days after the judgment or other appealable order is signed, a party
adversely affected by it or his attorney has neither received the notice required by
paragraph (3) of Rule 306a nor acquired actual knowledge of the order, then with
respect to that party, time periods for filing post-judgment motions and the notice
appeal shall begin on the date the party received such notice or acquired actual
notice of the signing, whichever occurred first, but in no event shall such periods
begin more than ninety days after the original judgment or appealable order was
signed. Tex. R. Civ. P. 306a(4). In order to take advantage of the extended time
periods provided in paragraph (4) of Rule 306a, the party adversely affected is
required to prove in the trial court, on sworn motion and notice, the date upon
which the party or his attorney first either received notice of the judgment or
acquired actual knowledge of its signing, and that this date was more than twenty
days after the date the judgment was signed. Tex. R. Civ. P. 306a(5).
      Rule 306a places the burden to establish its applicability on the movant. City
of Laredo v. Schuble, 943 S.W.2d 124, 126 (Tex. App.—San Antonio 1997, orig.
proceeding); In re Simpson, 932 S.W.2d 674, 677 (Tex. App.—Amarillo 1996, no
writ.); In re Jamea, No. 14-10-00228-CV, 2010 WL 2968044, at *5 (Tex. App.—
Houston [14th Dist.] July 29, 2010, orig. proceeding) (mem. op.). Compliance with
the provisions of Rule 306a is a jurisdictional prerequisite. Mem’l Hosp. of
Galveston County v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam); In re
Simpson, 932 S.W.2d at 677; Carrera v. Marsh, 847 S.W.2d 337, 342 (Tex.
App.—El Paso 1993, orig. proceeding); In re Jamea, 2010 WL 2968044, at *5.
Rule 306a specifies that the party must prove “the date on which the party or his
attorney first either received notice of the judgment or acquired actual knowledge
of the signing.” Tex. R. Civ. P. 306a(4) (emphasis added). The Supreme Court of
Texas, our court, and others have construed this language to require parties to
present evidence establish the date or dates on which the party and the party’s
counsel first received notice or acquired actual knowledge of the judgment. Jarrell
v. Bergdorf, 580 S.W.3d 463, 467 (Tex. App.—Houston [14th Dist.] 2019, no pet.)
(citing In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006) (orig. proceeding); In re
Jamea, 2010 WL 2968044, at *6–7 & n.4; In re J.S., 392 S.W.3d 334, 338 (Tex.
App.—El Paso 2013, no pet.); Schuble, 943 S.W.2d at 126; In re Simpson, 932
S.W.2d at 677–78). Unless the movant in the sworn motion makes a prima facie
showing of the dates upon which the movant and the movant’s attorney first either
received notice of judgment or acquired actual knowledge of its signing, the trial
court’s plenary power is not reinvoked and the trial court is without jurisdiction to
conduct a hearing under rule 306a(5). Jarrell, 580 S.W.3d at 468 (citing In re Lynd
Co., 195 S.W.3d at 685; In re Jamea, 2010 WL 2968044, at *5–6).
      In her 306a motion, relator verifies only her own contention that notice or
actual knowledge of the judgment was not received within twenty days of the
judgment; she does not negate by sworn statement of trial counsel the possibility
that counsel received notice or acquired actual knowledge within twenty days after
the trial court signed the judgment. Following the precedent of the Supreme Court
of Texas, this court, and our sister courts, we conclude that relator did not comply
with rule 306a(5)’s requirement that she file a sworn motion establishing the date
on which she or her counsel first either received notice of the order or acquired
actual knowledge of the entry of a judgment. See In re Lynd Co., 195 S.W.3d at
685; Jarrel1, 580 S.W.3d at 468; Schuble, 943 S.W.2d at 126.

      IV.    Conclusion

      Because relator’s motion was insufficient to make a prima facie showing of
lack of timely notice, the time tables for the trial court’s plenary power were not
extended so as to invoke the trial court’s otherwise-expired jurisdiction for the
limited purpose of conducting an evidentiary hearing to determine the date on
which the party’s counsel first received notice or acquired knowledge of the
judgment. See Jarrell, 580 S.W.3d at 468. Accordingly, we hold the trial court did
not abuse its discretion in failing to hold a hearing on relator’s 306a motion
because it lacked plenary power to do so.

      Relator’s petition for writ of mandamus is denied.



                                  PER CURIAM

Panel consists of Justices Wise, Bourliot, and Spain.
