Dora Belia Hernandez v. Luis Gerardo Barragan

• Court: Court of Appeals of Texas
• Decided: January 26, 2012
• Docket: 13-11-00180-CV
• Status: Published

Opinion

NUMBER 13-11-00180-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ___________________________________________________________

DORA BELIA HERNANDEZ, Apellant,

v.

LUIS GERARDO BARRAGAN, Appellee. ____________________________________________________________

On appeal from the 449th District Court of Hidalgo County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Vela Memorandum Opinion Per Curiam

Appellant, Dora Belia Hernandez, attempted to perfect an appeal from a judgment

entered by the 449th District Court of Hidalgo County, Texas, in cause number

F-1091-08-K. Judgment in this cause was signed on December 22, 2010. A motion for

new trial was filed on January 18, 2011. Pursuant to Texas Rule of Appellate Procedure 26.1, appellant=s notice of appeal was due on March 22, 2011, but was not filed until

March 30, 2011.

A motion for extension of time is necessarily implied when an appellant, acting in

good faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the

fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time.

See Verburgt v. Dorner, 959 S.W.2d 615, 617-18, 619 (1997) (construing the

predecessor to Rule 26). However, appellant must provide a reasonable explanation for

the late filing: it is not enough to simply file a notice of appeal. Id.; Woodard v. Higgins,

140 S.W.3d 462, 462 (Tex. App.BAmarillo 2004, no pet.); In re B.G., 104 S.W.3d 565, 567

(Tex. App.BWaco 2002, no pet.).

On April 6, 2011, the Clerk of this Court notified appellant of this defect so that

steps could be taken to correct the defect, if it could be done. Appellant was advised

that, if the defect was not corrected within ten days from the date of receipt of this Court=s

letter, the appeal would be dismissed. On April 15, 2011, appellant filed a “Motion for

Extension of Time to File Appellant’s Timely Perfected Appeal” requesting sixty days to

hire an appellate attorney and “prepare a timely perfected appeal.” The Court granted

appellant’s motion until June 17, 2011. On several occasions thereafter, the Clerk of the

Court contacted appellant’s attorney regarding the status of filing a motion for extension

of time to file notice of appeal.

On December 12, 2011, the Clerk of this Court again notified appellant of this

defect so that steps could be taken to correct the defect, if it could be done. Appellant

was advised that, if the defect was not corrected within ten days from the date of receipt of

this Court=s letter, the appeal would be dismissed. To date, no response has been

2 received from appellant providing a reasonable explanation for the late filing of the notice

of appeal.

The Court, having examined and fully considered the documents on file,

appellant=s failure to timely perfect her appeal, and appellant=s failure to respond to this

Court=s notice, is of the opinion that the appeal should be dismissed for want of

jurisdiction. Accordingly, the appeal is hereby DISMISSED FOR WANT OF

JURISDICTION. See TEX. R. APP. P. 42.3(a)(c).

PER CURIAM

Delivered and filed the 26th day of January, 2012.