Attorneys and law firms face numerous deadlines. Sometime filings are delayed and done at the last minute due to circumstances beyond our control. As a result, courts have created the mailbox rule. The mailbox rule is set out in Texas Rule of Civil Procedure 5 entitled “Enlargement of Time.” Rule 5 defines when a filing is deemed filed in time.
The mailbox rule provides that if a document is sent to the proper clerk by first class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day of filing and received by the clerk not more than ten days tardily (i.e. 10 days past the deadline), it shall be filed by the clerk of the court and be deemed received in time. In applying the mailbox rule, courts have effectively treated the United States Postal Service as a branch of the court clerk’s office for the purposes of filing pleadings only when the provisions of Rule 5 are met. Pediatrix Med. Servs. v. De La Q, 368 S.W.3d 34, 38-39 (Tex. App. – El Paso 2012, no pet.). More importantly, Rule 5 only applies to deadlines in the Texas Rules of Civil Procedure. Morris v. Aguilar, 369 S.W.3d 168, 171 (Tex. 2012).
Depositing the filing with United States Postal Service is not enough to have the filing deemed filed in time. The filing is only “conditionally effective” because the mailing still has to arrive to the proper clerk’s address within 10 days to perfect the filing. Stokes v. Aberdeen Ins., 917 S.W.2d 267, 268 (Tex. 1996). However, what do you do when there is a challenge to a timely filing and the use of the mailbox rule?
Rule 5 states that a legible postmark affixed by the United States Postal Service “shall be” prima facie evidence of the date of mailing if there is a challenge to a filing that is relying on the mailbox rule to be deemed filed in time. Lofton v. Allstate Ins., 895 S.W.2d 693, 693-694 (Tex. 1995). Texas courts have also allowed the use of an attorney’s uncontroverted affidavit as evidence of the date of mailing when the postmark is not available. Lofton v. Allstate Ins., 895 S.W.2d 693, 693-694 (Tex. 1995); see also Landers v. State Farm Lloyds, 257 S.W.3d 740, 745 (Tex. App. – Houston [1st Dist.] 2008, no pet.).
Efiling and eservice in Texas courts may ultimately cause changes to the mailbox rule. However, it is still an important procedural rule because many courts in Texas have not converted to efiling especially at the justice court level. Mailing a pleading and keeping copies of the mailing with a legible postmark may provide the proof needed to overcome a challenge to whether the document was filed in a timely manner. The opinions in this blog are solely the author’s and any comments, suggestions and replies can be sent to firstname.lastname@example.org.