Timely Filing In Texas - Rule 5

Under Texas Rules of Civil Procedure, Rule 5, a document is deemed timely filed if: (1) it is sent to the proper clerk; (2) by first-class United States mail; (3) in a properly addressed and stamped envelope; (4) on or before the last day for filing; (5) it is received not more than ten days tardily. In addition, a legible postmark affixed by the United States Postal Service is prima facie evidence of the date of mailing. Id. In Lofton v. Allstate Ins. Co., 895 S.W.2d 693, 693-94 (Tex. 1995), the Texas Supreme Court held that an attorney's affidavit, stating that he had timely mailed an appeal bond, was sufficient to extend time under the mailbox rule in former TEX. R. APP. P. 4(b), when there was no postmark or other evidence showing when the appeal bond had been mailed. In Rozelle v. Ben E. Keith Co., 864 S.W.2d 812, 815 (Tex. App. -- Eastland 1993, writ denied), the court of appeals held that there was no evidence to show that the appellant's amended pleadings and request for service were mailed in accordance with Rule 5. Though the trial court had taken judicial notice that the appellant had "directed a letter to the District Clerk" within the limitations period, the court of appeals observed that the trial court did not take judicial notice that the letter was sent to the proper clerk, by United States mail, and in a properly addressed and stamped envelope as required by Rule 5. Id. In Harris County Appraisal Dist. v. Dincans, 882 S.W.2d 75, 78 (Tex. App. -- Houston [14th Dist.] 1994, writ denied), the court of appeals found a stipulation-that the appraisal district's notice showing the appraised value of certain property was mailed-was insufficient to establish a statutorily created presumption that the notice was delivered. In that case, the court held that the stipulation did not demonstrate that all possible precautions were taken to ensure the notice would go to the taxpayer listed on the tax rolls. Id. at 79. Specifically, the stipulation did not include, but could easily have included, a statement that sufficient postage was placed on the envelope, that first-class mail was used, that the notice was sent to the most current address and was not returned, and the means by which the district normally places such notices in the mail. Id.