Zidell v. NHP Real Estate Co. , 1982 Tex. App. LEXIS 5432 ( 1982 )

SHANNON, Justice.

Appellant Allan Zidell appeals from an order of the district court of Travis County denying his plea of privilege. The order was signed on June 4, 1982. Appellant’s cost bond was filed with the district clerk on Tuesday, July 6, 1982. Because appellant failed to timely file his cost bond, this Court will dismiss the appeal.

In accelerated appeals, an appellant must file a bond within thirty days after the complained of judgment or order is signed. Tex.R.Civ.P.Ann. 385(d) (Supp.1981). When a bond is not filed within the required time, the rules provide that an extension of time may be granted by the appellate court if the bond is filed within fifteen days after the last day allowed, provided a motion is filed within the same period in the appellate court reasonably explaining the need for the extension. Tex.R.Civ.P.Ann. 356(b) (Supp.1981).

Appellant failed to timely file his cost bond with the court; in addition he filed no motion for extension of time in this Court. The thirtieth day after the order denying appellant’s plea of privilege was Sunday, July 4, 1982. When the last day of a computation period falls on a Saturday, Sunday, or legal holiday, the period runs until the end of the next day which is neither a Saturday, Sunday, nor a legal holiday. Tex.R.Civ.P.Ann. 4 (1979).

The legislature has enumerated the legal holidays as they apply to judicial proceedings. Tex.Rev.Civ.Stat.Ann. art. 4591 (Supp.1981). Although Sunday, July 4, 1982, was such a holiday, Monday, July 5, 1982, was not a legal holiday for the purpose of computing appellant’s filing deadline in this appeal. Grajeda v. Charm Homes, Inc., 614 S.W.2d 176 (Tex.Civ.App.1981, no writ). Therefore, to comply with the rule, appellant’s bond should have been filed on or before July 5, 1982.

The failure to timely file a cost bond creates a jurisdictional defect in the appeal. Texas Employers Insurance Association v. Martin, 162 Tex. 376, 347 S.W.2d 916 (1961); Pridgen v. Damon, 298 S.W.2d 278 (Tex.Civ.App.1957, writ ref’d).

The concurring justice mounts an attack on the rule of law that a “legal holiday” is one established by act of the legislature and no other. That attack is ill-founded for at least two reasons. First, there is no basis in fact for the assumption that the Travis County Courthouse was closed on Monday, July 5, 1982. The transcript is absolutely devoid of any evidence that the Courthouse was open or closed on July 5. In fact, nothing in the transcript even bears upon that issue. One cannot discern from the record the reason for appellant’s failure to file the cost bond on July 5. Second, should we assume that the Courthouse was closed on July 5, the settled law is that a “legal holiday” as contemplated by Rule 4 is one established by act of the legislature and no other. Smith v. Harris County-Houston Ship Channel Navigation District, 160 Tex. 292, 329 S.W.2d 845 (1959); Suarez v. Brown, 414 S.W.2d 537 (Tex.Civ.App.1967, writ ref’d). Since appellant was required to file the cost bond on July 5, and assuming the Courthouse was closed on that day, appellant should have arranged to file the cost bond with the district clerk or district judge.

The law with respect to “legal holidays” is clear; equally clear is the duty of this intermediate court to apply that law. The appeal is dismissed.

Appeal Dismissed.