Order filed May 30, 2019 

In The

Fourteenth Court of Appeals

____________

NO. 14-19-00315-CV

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EMILIO LOPEZ, Appellant

V.

CLEAR LAKE REGIONAL MEDICAL CENTER, CIICA CLEAR LAKE, 

L.P. D/B/A CLEAR LAKE REGIONAL MEDICAL CENTER, 

GABRIEL RODRIGUEZ, M.D., TEXAS ONCOLOGY P.A. D/B/A 

TEXAS UROLOGY SPECIALISTS, TEXAS ONCOLOGY P.A. AND 

TEXAS UROLOGY SPECIALISTS-WEBSTER, Appellees

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2016-15836

ABATEMENT ORDER

This appeal is from a judgment signed November 26, 2018. The clerk’s 

record was filed April 26, 2019. The record reflects the notice of appeal was filed

April 9, 2019. In response to a notice from the court explaining that the notice of 

appeal appeared untimely, appellant alleges he did not receive notice of the 

November 26, 2018 judgment until January 2, 2019. When a party contends he did 

not receive official notice of a judgment from the clerk or otherwise obtain actual 
knowledge of the judgment within twenty days of the date the judgment was 

signed, the party may request an order establishing that the time period for appeal 

begins on the date the party or his attorney received the clerk’s notice or acquired 

actual knowledge of the judgment, whichever occurred first. See Tex. R. Civ. P. 

306a(4). In no event will the new time period begin more than ninety days after the 

date the original judgment was signed. Id. To establish application of rule 306a(4), 

a party adversely affected 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. See Tex. R. Civ. P. 306a(5).

Our clerk’s record shows that appellant filed a motion seeking to establish 

application of rule 306a(4). The motion is supported by an affidavit from 

appellant’s counsel stating that he did not receive notice of the judgment by mail 

and instead discovered that the judgment had been signed by looking at the district 

clerk’s website on January 2, 2019. January 2, 2019 is more than twenty days after 

November 26, 2018. We also have a reporters’ record from a hearing held 

February 21, 2019, at which the parties argued the merits of appellant’s request for 

rule 306a(4) relief. At the conclusion of the hearing, the trial court indicated that it 

found that appellant’s counsel first received actual knowledge of the judgment on 

January 2, 2019. The record, however, does not contain a signed order to that 

effect. A trial court granting rule 306a(4) relief is required to sign a written order 

that finds the date on which the party or the party’s attorney first either received 

notice or acquired actual knowledge that the judgment was signed. See Tex. R. 

App. P. 4.2(c); see also LDF Construction, Inc. v. Texas Friends of Chabad 

Lubavitch, Inc., 459 S.W.3d 720, 724 (Tex. App.—Houston [14th Dist.] 2015, no 

pet.) (the date must be established by competent proof and included in a written 

order signed by the trial judge).

Without a signed order under rule 4.2(c), we are unable to determine 

whether appellant’s notice of appeal is timely. If the trial court finds that January 2, 
2019, is the date when appellant or appellant’s counsel first either received notice 

or acquired actual knowledge that the judgment was signed, then a notice of 

appeal, or a motion extending the time to file a notice of appeal, was due on or 

before February 1, 2019. See Tex. R. App. P. 26.1; Tex. R. Civ. P. 329b(a). The 

clerk’s record reflects that appellant tendered a motion for new trial for filing on 

February 1, 2019. If the motion for new trial was timely, then appellant’s notice of 

appeal was due April 2, 2019. The notice of appeal was filed April 9, 2019, within 

the fifteen-day time period during which we imply a motion to extend time. See 

Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

Accordingly, we order the case abated and remanded to the trial court for 

entry of a written order finding the date when appellant first either received notice 

or acquired actual knowledge that the judgment was signed. A supplemental 

clerk’s record containing the trial court’s order shall be filed with the clerk of this 

court within 30 days of the date of this order.

The appeal is abated, treated as a closed case, and removed from this Court’s 

active docket. The appeal will be reinstated on this Court’s active docket when the 

supplemental clerk’s record is filed in this Court. The Court will also consider an 

appropriate motion to reinstate the appeal filed by either party, or the Court may 

reinstate the appeal on its own motion. It is the responsibility of any party seeking 

reinstatement to request a hearing date from the trial court and to schedule a 

hearing, if a hearing is required, in compliance with this Court’s order. If the 

parties do not request a hearing, the court coordinator of the trial court shall set a 

hearing date and notify the parties of such date.

PER CURIAM

Panel consists of Justices Wise, Jewell, and Hassan.