AAAction Plumbing Co. v. Stewart

OPINION SAM BASS, Justice. ON MOTION FOR REHEARING Our opinion dated March 22, 1990, is withdrawn and the following substituted in its place. We overrule appellants’ motion for rehearing. Appellee moves this Court to dismiss the appeal for want of jurisdiction, asserting that appellants did not properly perfect the appeal and appellants did not timely file the record. The trial court signed the judgment on September 27, 1989, and appellant filed a motion for new trial on October 27, 1989. Rule 54 of the Texas Rules of Appellate Procedure mandates that when a timely motion for new trial is filed, appellants must file the record within 120 days after the judgment is signed. The 120th day after judgment in this case was January 25, 1990. Appellants timely filed the record on January 25, 1990. Rule 41 of the Texas Rules of Appellate Procedure requires a party to file a cost bond within 90 days of the date the judgment is signed, if a timely motion for new trial is filed. The time for filing the cost bond in this case expired December 26, 1989. Tex.R.App.P. 41(a)(1). Rule 41 also provides that the court may grant an extension of time to file the cost bond if, within 15 days, the cost bond is filed with the district clerk, and a motion is filed in the appellate court reasonably explaining the need for such an extension. Tex.R.App.P. 41(a)(2). The last day appellants could timely file the cost bond and a motion to extend the time to file the cost bond was January 10, 1990. Id. Appellants filed their cost bond on December 27, 1989, but did not file their motion to extend the time to file the cost bond. On rehearing, appellants contend that because December 26, 1989, was a commissioners court declared holiday, pursuant to Johnson v. Texas Employers Ins. Assoc., [502] 674 S.W.2d 761 (Tex.1984), they could timely file their appeal bond on December 27, 1989. In Johnson, the court held the banking statutes, which provide that when an official holiday falls on a weekend, the Friday or Monday adjacent to the weekend holiday is also a holiday for deadline purposes, apply to extend appellate deadlines also. The court in Johnson reaffirmed its previous holding in Blackman v. Housing Auth. of City of Dallas, 152 Tex. 21, 254 S.W.2d 103 (Tex.1953), which held that if the courthouse is closed on the Friday before July 4, November 11, or December 25, or if the courthouse is closed on the Monday after July 4, November 11, or December 25, (banking holidays per Tex.Rev.Civ. Stat.Ann. art. 342-910a (Vernon Supp. 1990)), a document may be filed the next working day. The Blackman court specifically held, however, that rule 4 of the Texas Rules of Civil Procedure does not include holidays declared by the commissioners court of the county: Nor do we think the rule [Rule 4] meant to include those days, which the Commissioner’s Court of the County wherein the particular court should be located or wherein counsel for one party or another should reside, might choose to designate as a holiday. Blackman, 152 Tex. at 24, 254 S.W.2d at 105. See also Grajeda v. Charm Homes, Inc., 614 S.W.2d 176, 177 (Tex.App.-El Paso 1981, no writ). In this case, December 25, 1989, a legal holiday, fell on a Monday. Tuesday, December 26, 1989, was not a legal holiday pursuant to Tex.Rev.Civ.Stat.Ann. art. 4591 (Vernon Supp.1990). We are not unmindful of the Texas Supreme Court’s recent decision in Dorchester Master Ltd. Partnership v. Hunt, 790 S.W.2d 552 (Tex.1990) wherein the supreme court stated: We conclude that Rule 5(a) can and must continue to be construed as we have construed Rule 4 of the Texas Rules of Civil Procedure in Blackman, Smith, [160 Tex. 292, 329 S.W.2d 845 (1959)] Mid-Continent [584 S.W.2d 705 (Tex.1979)] and Johnson. Id., at 553. We find, however, that Dor-chester is not applicable to the present case. In Dorchester and the cases cited therein, the holiday in question fell on a weekend, and the courts declared the following Monday a legal holiday. Here, because the legal holiday in question did not fall on weekend, the Monday extension permitted by Dorchester, Johnson, and Black-man does not apply. While we agree with the dissent that the supreme court should interpret “legal holidays” to include all days that the courthouse is closed, until the supreme court changes the rules of appellate procedure, we are bound by the rules’ current mandates. Failure to file the cost bond and the motion to extend within 15 days after the due date is jurisdictional. Tex.R.App.P. 41, 60(a). Western Credit Co. v. Olshan Enter., Inc., 714 S.W.2d 137, 138 (Tex.App.—Houston [1st Dist.] 1986, no writ). Because appellants did not file the appeal bond on or before December 26, 1989, nor did they file a motion to extend time to file the appeal bond on or before January 10, 1990, this Court does not have jurisdiction to hear the appeal. Tex.R.App.P. 41(a)(2), 60(a). In the absence of a properly filed cost bond, the Court may only dismiss the appeal. Davies v. Massey, 561 S.W.2d 799, 800-801 (Tex.1978); Wadkins v. Diversified Contractors, 714 S.W.2d 136, 137 (Tex.App.—Houston [1st Dist.] 1986, no writ). Appellee’s motion to dismiss is GRANTED. The appeal is DISMISSED for want of jurisdiction. O’CONNOR, J., dissents.