The opinion
ON MOTION FOR REHEARING
The Judgment and Opinion of this Court were rendered on December 18, 1974. Under Rule 458, Texas Rules of Civil Procedure, a motion for rehearing was required to be filed within fifteen days, or on or before January 2, 1975. By letter dated January 2, 1975, and with an envelope containing a postage meter stamp 1 dated January 2, 1975, Appellee mailed to the Clerk of this Court a motion for rehearing, which was received by the Clerk on January 6, 1975. Appellant has filed a motion to strike the motion for rehearing, contending it was not timely filed, and citing Wilkinson v. Lindsey, 321 S.W.2d 158 (Tex.Civ.App.—Amarillo 1959, no writ), and other cases cited in that opinion on motion for rehearing.
We do not believe those cases control, and our research has not disclosed any case directly in point. Clearly the time for filing a motion for rehearing may not be extended either by agreement of the parties or by action of the Court. Bell v. Rains County, 326 S.W.2d 189 (Tex.Civ.App.—Texarkana 1959, no writ); Thomas v. Thomas, 228 S.W.2d 548 (Tex.Civ.App.—Fort Worth 1950, no writ).
But Rule 5, Tex.R.Civ.P., provides that if a motion for rehearing is sent to the proper clerk by first-class United States mail in an envelope properly addressed and stamped and is deposited in the mail one day or more before the last day for filing the same, and received by the clerk within ten days, it shall be deemed filed in time. Appelleels motion being due on January 2, 1975, the last day for mailing it to the Clerk was January 1, 1975. Article 4591, Tex.Rev.Civ.Stat.Ann., makes the first day of January a legal holiday. Rule 4, Tex.R.Civ.P., provides that in computing any period of time prescribed or allowed by the Rules of Civil Procedure, if the last day of the period so computed is a legal holiday, the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday. We conclude that since the last day for mailing the motion for rehearing under Rule 5 was on January 1, then under Article 4591 and Rule 4, Appellee had until the *584 following day, January 2, to mail the motion. It was received within ten days and therefore is deemed filed in time. The motion to strike is overruled.
Having considered said motion for rehearing, it is overruled.
. Sueli postmark, while some evidence of the date of mailing, is not conclusive under Rule 5. The better practice would be to use an official Postal Service postmark. See 36 Tex.B.J. 401.