Bobby Joe Harper v. David P. Walker

• Court: Court of Appeals of Texas
• Decided: July 15, 2025
• Docket: 01-23-00928-CV
• Status: Published

Opinion

Opinion issued July 15, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00928-CV ——————————— BOBBY JOE HARPER, Appellant V. DAVID P. WALKER, Appellee

On Appeal from the 212th District Court Galveston County, Texas Trial Court Case No. 23-CV-1112

MEMORANDUM OPINION

Bobby Joe Harper appeals from the trial court’s order denying his challenge

to the validity of a judgment lien. Because his notice of appeal was untimely, we

dismiss this appeal for lack of subject-matter jurisdiction. Harper’s Notice of Appeal Was Untimely

Ordinarily, a notice of appeal must be filed within 30 days after the judgment

is signed. TEX. R. APP. P. 26.1. If a party timely files a motion for reconsideration,

then the notice of appeal is due within 90 days after the judgment is signed. TEX. R.

APP. P. 26.1(a); see also TEX. R. CIV. P. 329b(a), (g) (motions for new trial or to

modify judgment are due within 30 days of when judgment is signed); Adams v.

Ross, No. 01-15-00315-CV, 2016 WL 4128335, at *2 (Tex. App.—Houston [1st

Dist.] Aug. 2, 2016, no pet.) (motion for reconsideration that seeks modification or

reversal of judgment qualifies as motion for new trial or to modify judgment and

therefore extends deadline for filing notice of appeal).

These deadlines for filing the notice of appeal are jurisdictional. See TEX. R.

APP. P. 25.1. Absent a timely notice of appeal, we lack jurisdiction and must dismiss.

Deutsche Bank Nat’l Tr. Co. v. Gonzalez, No. 01-24-00292-CV, 2024 WL 4045489,

at *5 (Tex. App.—Houston [1st Dist.] Sept. 5, 2024, no pet.).

Here, Harper timely moved for reconsideration of the trial court’s September

1, 2023 order but did not file his notice of appeal until 103 days after the order was

signed. Therefore, Harper’s notice of appeal was 13 days late.

Harper Has Not Explained His Failure to Timely Appeal

Because Harper filed his untimely notice of appeal within 15 days of the

applicable deadline, this court treats his untimely notice as an implied motion for an

2 extension of time to file his notice of appeal. Gantt v. Harris Cnty., 674 S.W.3d 553,

558 (Tex. App.—Houston [1st Dist.] 2023, no pet.). But, as precedent instructs,

“[w]e may grant the implied motion for extension if the appellant provides a

reasonable explanation for the untimeliness of the filing, that is, a ‘plausible good

faith justification for filing their notice of appeal when they did.’” Id. (citation

omitted); Hernandez v. Lopez, 288 S.W.3d 180, 184 (Tex. App.—Houston [1st

Dist.] 2009, no pet.) (reasonable explanation generally means any plausible

statement of circumstances indicating inadvertence rather than deliberate

indifference to deadline); see also Gantt, 674 S.W.3d at 558 (stating that

explanations that do not amount to deliberate or intentional disregard generally

qualify as reasonable for purpose of an implied motion for an extension).

On June 5, 2025, we ordered Harper to file a written explanation for his failure

to file his notice of appeal by the applicable deadline. The deadline for Harper’s

written explanation has come and gone, but he has not filed an explanation.

Therefore, we have no choice but to dismiss his suit. See TEX. R. APP. P. 42.3(a);

see, e.g., In re J.K.L., No. 01-11-00780-CV, 2012 WL 2923167, at *1 (Tex. App.—

Houston [1st Dist.] July 12, 2012, no pet.) (concluding court “can take no action

other than to dismiss the appeal” when appellant does not explain untimeliness of

appeal notice); see also Matthews v. Kern, No. 01-09-00552-CV, 2010 WL 2991433,

3 at *1 (Tex. App.—Houston [1st Dist.] July 29, 2010, no pet.) (dismissing after

appellant failed to provide explanation as to why his notice of appeal was untimely).

CONCLUSION

We dismiss this appeal for lack of subject-matter jurisdiction.

Jennifer Caughey Justice

Panel consists of Chief Justice Adams and Justices Caughey and Johnson.