Armando Trevino v. Karla Belen Garcia, Individually and as Administratix of the Estate of Maria Luisa Aguilar

Fourth Court of Appeals San Antonio, Texas May 19, 2021

No. 04-21-00188-CV

Armando TREVINO, Appellant

v.

Karla Belen GARCIA, Appellee

From the 406th Judicial District Court, Webb County, Texas Trial Court No. 2020CVF002238-D4 Honorable Oscar J. Hale, Jr., Judge Presiding

ORDER

Appellant appeals from a final order dismissing a case pursuant to Texas Civil Practice and Remedies Code chapter 27. Pursuant to section 27.008(b), “[a]n appellate court shall expedite an appeal or other writ, whether interlocutory or not, from a trial court order on a motion to dismiss a legal action under Section 27.003 . . ..” TEX. CIV. PRAC. & REM. CODE § 27.008(b). Accelerated appeals include “appeals required by statute to be accelerated or expedited.” See TEX. R. APP. P. 28.1(a). In an accelerated appeal, the notice of appeal is due within twenty days after the date the judgment or order is signed. See id. 26.1(b). Without a timely notice of appeal, this court lacks jurisdiction. See id. 25.1(b). Here, although appellant filed both a timely request for findings of fact and conclusions of law and a motion for new trial, in an accelerated appeal, neither of these filings extends the time to file a notice of appeal. See id. 28.1(b).

The trial court signed a final order granting appellee’s chapter 27 motion to dismiss and awarding attorney’s fees on April 9, 2021. Accordingly, the notice of appeal was due on April 29, 2021, twenty days after the date the order was signed. See id. 26.1(b). Appellant filed his notice of appeal on May 10, 2021. He did not file a motion for extension of time.

Nevertheless, the appellate rules permit this court to extend the time for filing the notice of appeal if a party files the notice of appeal in the trial court and a motion for extension in this court within fifteen days “after the deadline for filing the notice of appeal.” See id. 26.3. Appellant filed his notice of appeal within this fifteen-day window. Thus, we must imply a motion for extension if he can show a reasonable explanation for the late filing. Verburgt v.

Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (implying motion for extension of time to file appellate bond when bond was filed late but within fifteen-day period for filing motion for extension); see also Houser v. McElveen, 243 S.W.3d 646, 646-47 (Tex. 2008) (orig. proceeding) (per curiam) (implying motion for extension of time to file notice of appeal when notice of appeal was filed late but was mailed within the fifteen-day deadline).

Appellant is hereby ORDERED to file, in writing, a reasonable explanation for failing to timely-file his notice of appeal no later than June 1, 2021. If appellant does not provide a reasonable explanation by June 1, 2021, this appeal is subject to dismissal for want of jurisdiction

_________________________________ Lori I. Valenzuela, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 19th day of May, 2021.

___________________________________ Michael A. Cruz, Clerk of Court