Counting Days

YOUR TRIAL DATE IS LOOMING, ABOUT FORTY DAYS FROM NOW.

You owe opposing counsel some supplemental responses to discovery, which you know are due thirty days before trial.

What is your deadline?

Rule 4 states, in pertinent part:

In computing any period of time prescribed or allowed by these rules…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.

You get out your calendar, look at the trial date, and start counting backwards from the trial date, being careful not to count the day of the trial.¹

The 30th day² before trial, it turns out, is a Sunday.

Hmmm?

Since you don’t get to practice law on a Sunday (not where the Rules of Civil Procedure are concerned, anyway), when is your deadline for serving the supplemental responses?

Aha! Sunday is the “last day” you counted, so the deadline is the Monday after, right?

Wrong!

The Fourteenth District Court of Appeals, facing the same set of facts³, found, in effect, that the day you actually do whatever it is you’re supposed to do (in this case, serve supplemental discovery responses) is “the day of the act…after which the designated period of time begins to run”.

In Melendez, the plaintiff’s attorney, facing a trial on July 8, 1996, counted thirty days backwards from that date and landed on Saturday, June 8.

Taking the “next day” clause of Rule 4 a bit too literally, she waited to serve their supplemental responses until Monday, June 10th.

The Court of Appeals said, “Sorry!”

We’re going to count forward from June 10th and see where it takes us.

Sure enough, the 30th day after was July 10th, two days after trial began.

And that was all she wrote for Mr. Melendez and his supplemental responses, which the appellate court ruled were properly excluded.

Damn!

Seems so hyper-technical, but there it is.

OK. Enough. I’m getting dizzy.

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¹Yes, you get to count backwards, sort of, but you’ve already made a mistake, QED.
²Rule 193.5, Texas Rules of Civil Procedure.
³Melendez v. Exxon Corp., 998 S.W.2d 266 (Tex. App.–Houston [14th Dist.] 1999, no pet.).