### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00110- CV

Jon Alan Ash craft, Appellant

v. Estate of Jay Arden Ashcraft and Richard T rachte nberg, Adm inis trat or, Appellees

F ROM TH E P ROB ATE COURT NO . 1 O F TRAVIS CO UNTY NO. C-1 -P B -10 -00 0318 , H ONO RAB LE GUY S. H ERMAN, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N
On Fe bruar

y 14, 2011, Appellant J on Alan Ashcra ft, appea ring pro se, filed a notice of appea l from the probate court’s decla ratory judgme nt, which was signe d on October 6, 2010. On J une 8, 2011, pursuant to rule of appellate proce dure 42.3, this Court notified Ash cr aft that the notice of appea l appea

red to be untimely and that his appea l would be dismiss ed unless he provided infor

mation on or before J une 20, 2011, to show the j urisdiction of this Court. See Tex. R. App. P. 42.3. In response to our letter, Ashcra ft informed us that he is incar ce rated, the probate court denied his motion for issuance of be nch wa rra nt and his motion t o participate in the hear ing by teleconf

ere nce, and he did not rec eive no t i ce o f t h e signing of the judgme nt until No v em b er 15, 2010, more than twenty day s afte r the judgme nt was signe d. Ashcra ft furthe r informed us, and the cler

k’s rec ord confirms, that on November 30, 2010, he filed a motion pursuantto rule of civil proce dure 306a to establish the opera tive date of the judgme nt, which he re- urg ed on J anuar y 4, 2011, and January

23, 2011. See Tex. R. C iv. P. 306a(5). Rule 306a of the r

ules of civil proc edure provides that if within twenty day s after a judgme nt is signe d, a party adver sely aff ecte d by it has neither rec eived the require d notice nor acquir ed actua l knowledg e of the judgme nt, then appellate deadlines shall beg in to run from the date that such party rec eived notice or acquir ed actua l knowledg e of the rendition of judgme nt. 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 adver sely aff

ecte d party must prove in the trial court on sworn motion and notice the date on which the party first rec eived notice of the judgme nt or acquir ed actua l know ledg e of it a nd that this date
was more than twenty day s afte r it was signe d. Tex. R. Civ. P. 306a(5) ; Tex. R. App. P. 4.2(b). After hear ing the motion, the trial court must sign a written order that finds the date when the party first rec eived notice or acquir ed actua l know ledg e of the signing of the judgme nt. Tex. R. App. P. 4.2(c)
. The p ro b at e court did not rule on Ashcra ft’s motion. See Tex. R. App. P. 4.2(c)
. Acc ording ly , we abate this appea l and rema nd the cause to the probate court to conduct the requisite hear ing and to sign an order ruling on Ashcra ft’s motion. See id
. After the hear ing, the probate court shall cause a supplementa l clerk’ s rec ord with a c opy of the orde r to be filed with this C ourt. The supplemental cle rk’s re cord sha ll be filed no later than 45 day s following the date of this opini on.

2__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Jones, J ustices Henson a nd Goodwin Abated Filed: Jul y

6, 2011

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