The three day deadline to serve a notice of hearing is calculated by not counting weekends and holidays, so in situations where no holiday is involved, the deadlines are:
Hearing is on…. Deadline to e-serve notice of hearing is…
Monday Prior Wednesday
Tuesday Prior Thursday
Wednesday Prior Friday
Thursday Prior Monday
Friday Prior Tuesday
These deadlines change if there is a holiday in the three business days prior to the hearing. Remember, for these purposes, a “legal holiday” for a district or county court means the county holidays when the courthouse is closed as approved by the county commissioners. Miller Brewing Co. v. Villarreal, 829 S.W.,2d 770, 772 (Tex. 1992); Lowe v. Rivera, 60 S.W.3d 366, 369-70 (Tex. App. – Dallas 2001, no pet.).
The above deadlines are also different if notice of hearing is served by mail, because an additional three days is added to the required notice period.
TRCP 21(b) requires that a notice of a hearing must be served not less than three days before the hearing (unless notice of the hearing is given in court). TRCP 21a(c) adds three days to any deadline if the notice is served by mail. However, only pro se parties get served by mail these days. In almost all cases, notice of a hearing is served via electronic service, so the deadline to give notice of a hearing is usually three days.
TRCP 4 states:
Rule 4 – Computation of Time
In computing any period of time prescribed or allowed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday. Saturdays, Sundays, and legal holidays shall not be counted for any purpose in any time period of five days or less in these rules, except that Saturdays, Sundays, and legal holidays shall be counted for purpose of the three-day periods in Rules 21 and 21a, extending other periods by three days when service is made by mail.
(emphasis added).
TRCP 4 makes it clear that when counting the days before a hearing for a deadline, you do not count the date of filing or serving notice, but you do count the date of the hearing. For, example, the deadline to file an amended pleading seven days before trial/summary judgment hearing was addressed in Sosa v. Central Power & Light, 909 S.W.2d 893, 895 (Tex. 1985). There, the summary judgment hearing was set for November 17, 1993 and the plaintiff filed an amended petition on November 10. The Supreme Court ruled that the amended pleading was timely filed because it was filed seven days before the summary judgment hearing, which is treated as if it were the final trial. The court said:
When Rule 4 is applied, the day on which the Sosas filed their amendment is not counted but the seventh day after it was filed is counted. This latter day is November 17, 1993. …. the last day counted from the date of the filing may be the date of the hearing.
Sosa, at 895 (emphasis added).
So, if TRCP says Saturdays, Sundays and legal holidays are not counted for purposes of calculating a deadline of five days or less, this is how to calculate the deadline to e-serve notice of a hearing three days before the hearing:
Hearing is on a Monday: The deadline to e-serve notice of the hearing is the prior Wednesday, with the three days counted as follows:
Hearing is on a Tuesday: The deadline to e-serve notice of the hearing is the prior Thursday, with the three days counted as follows:
Hearing is on a Wednesday: The deadline to e-serve notice of the hearing is the prior Friday, with the three days counted as follows:
Hearing is on a Thursday: The deadline to e-serve notice of the hearing is the prior Monday, with the three days counted as follows:
Hearing is on a Friday: The deadline to e-serve notice of the hearing is the prior Tuesday, with the three days counted as follows:
These calculations change if there is a legal holiday just before the hearing date, because TRCP says we do not include legal holidays for deadlines that are five days or less. So consider a hearing set on the Tuesday after the Veteran’s Day holiday on Monday. The deadline would be the prior Wednesday calculated as follows (not counting Saturday, Sunday or the holiday):
One last note, TRCP 4 applies to deadlines under five days only if the deadline is imposed by the Texas Rules of Civil Procedure. If the deadline is imposed by statute, then Tex. Gov’t Code Sec. 311.014 applies, according to Peacock v. Humble, 933 S.W.2d 341, 342-43 (Tex. App. – Austin 1996, orig. proceeding). The Peacock case dealt with the Family Code deadline of three days to request a de novo hearing of an associate judge’s ruling. The deadline to give three days notice of a hearing is provided by the Texas Rules of Civil Procedure, and so TRCP 4 still applies.