DOES TEX R. CIV. P. 306a REQUIRE PROOF THAT NEITHER THE PARTY NOR ITS
ATTORNEY RECEIVED NOTICE THAT A JUDGMENT WAS SIGNED?

Lessie Nance v. Evadale Independent School District

Supreme Court of Texas Cause No. 05-0934

Click here for --> Opinion of the Ninth Court of Appeals   Docket sheet ---> 09-05-00221-CV
Click here for --> Amicus Brief by the Faculty Rights Coalition in Support of Nance's Petition for Review


ISSUES PRESENTED

1.  Whether the Ninth Court of Appeals' construction of Rule 306a(4)(5) as requiring proof that neither
attorney nor client received timely notice of the signing of the judgment is correct. Tex. R. Civ. P. 306a.
(The rule provides for an extension of post-judgment and appellate deadlines.)

2.  Whether statements by or information derived from third parties which constitute hearsay for
admissibility purposes can satisfy the “actual knowledge” requirement of Rule 306a, and thus negate
entitlement to the benefits provided by Texas Rule of Civil Procedure 306a.

3.  Whether a school employee with a discrimination claim must file an internal grievance and exhaust
administrative remedies available under school law in addition to filing a charge with the Commission
on Human Rights (or the EEOC) as a jurisdictional prerequisite to filing suit.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Lessie Nance filed suit against Evadale Independent School District, alleging unlawful
employment practices in violation of Chapter 21 of the Texas Labor Code and retaliation on account of
her having filed a disability claim.

The trial court dismissed Nance’s claims for failure to exhaust administrative remedies based on the
proposition that the filing of a claim with the Commission on Human Rights, [now Texas Workforce
Commission Civil Rights Division] and obtaining a notice of right-to-sue is not sufficient, and that the
prerequisites to suit also include a requirement that the claimant/plaintiff exhaust the  School District’
s internal grievance remedies and appeal to the Commissioner of Education under the Education
Code before filing suit. Tex. Educ. Code §7.057.

The trial court signed an order granting the School District’s motion to dismiss for lack of jurisdiction
on November 29, 2004. Having received notice of dismissal too late to avail herself of post-judgment
remedies,  Nance filed a motion under Rule 306a to extend post-judgment deadlines, a motion for new
trial, and a conditional notice of appeal.

The trial court held a hearing on April 21, 2005 and denied the Rule 306a(5) motion, based on its
finding that Nance had “failed to establish the first date on which she personally received notice of
judgment or acquired actual knowledge of its signing.” See slip op. at p. 1 (emphasis added). The trial
court filed findings of fact and conclusions of law in which it states that no evidence was submitted to
establish when Nance acquired actual knowledge of the November 29, 2004 dismissal order.

The Court of Appeals held that the trial court properly denied Nance’s Rule 306a(5) motion and motion
for a new trial, and that Nance’s notice of appeal, filed in the alternative to her post-judgment motions,
had not properly invoked appellate jurisdiction. Accordingly, the reviewing court dismissed the appeal
for want of jurisdiction.

THE RULE AT ISSUE

Subsection (4) of rule 306a reads as follows:

No notice of judgment. 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 this rule nor acquired actual knowledge of the order, then with respect to that party all the periods
mentioned in paragraph (1) shall begin on the date that such party or his attorney received such
notice or acquired actual knowledge of the signing, whichever occurred first, but in no event shall
such periods begin more than ninety days after the original judgment or other appealable order was
signed.

The rule can be read in several ways: (1) As requiring that notice to either client or attorney is
sufficient to defeat entitlement to the benefits of the rule; (2) as providing that the relief be available
when either the attorney or the client remains unaware of the judgment; or (3) as setting different
requirements for cases in which litigants proceed pro se and cases in which the party is represented
by an attorney.

Amicus urges this Court to overrule the Court of Appeals and adopt the third position, for the reasons
set forth in greater detail below.

SUMMARY OF THE ARGUMENT

This Court should end ambiguity with respect to the proper construction and application of Tex. R. Civ.
P. 306a(4)(5).

Specifically, this Court should decide whether or the benefits of Rule 306a(5) are  contingent upon
proof of lack of notice of the signing of a judgment to (1) attorney, (2) client, (3) both attorney and
client, or (4) either attorney or client.

The Court should decide whether notice to attorney is notice to the client, and  failure of notice to the
attorney is failure of notice to the party (where the party is represented by counsel).

Amicus urges the Court to hold that Rule 306a requires that a represented party show that its attorney
did not receive notice or otherwise acquired knowledge of the judgment, and that an unrepresented
party show that it did not receive notice personally. A contrary construction would penalize a party for
having obtained legal representation, and would undermine the attorney-client relationship.

One way or the other, a definitive construction of Rule 306a would benefit both bench and bar by
ending uncertainty and ambiguity, and would thus improve the administration of justice.