in the Matter of C.C.

• Court: Court of Appeals of Texas
• Decided: January 27, 2010
• Docket: 04-09-00776-CV
• Status: Published

Opinion

i i i i i i

MEMORANDUM OPINION

No. 04-09-00776-CV

IN THE MATTER OF C.C.

From the County Court at Law No. 1, Webb County, Texas Trial Court No. 2008JV300062-L1 Honorable Alvino (Ben) Morales, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Chief Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice

Delivered and Filed: January 27, 2010

DISMISSED FOR LACK OF JURISDICTION

C.C. appeals the trial court’s adjudication and disposition orders signed October 14, 2009.

Because C.C. did not file a timely motion that would have extended the appellate timetable, his

notice of appeal was due November 13, 2009, or a motion for extension of time to file the notice of

appeal was due fifteen days later. See TEX . R. APP. P. 26.1, 26.3. The notice of appeal in the clerk’s

record indicates it was filed in the trial court on November 16, 2009. The notice of appeal contains

a certification that the notice was served on the office of the County Attorney on November 9, 2009;

however, nothing in the record indicates the date or manner in which the notice was filed with the

trial court clerk. C.C. did not file a motion for extension of time to file the notice of appeal. 04-09-00776-CV

A notice of appeal timely placed in the mail in accordance with Rule 9.2(b) of the Texas

Rules of Appellate Procedure may appear to be filed late. See, e.g., Molina v. Kelco Tool & Die,

Inc., 904 S.W.2d 857, 860 (Tex. App.—Houston [1st Dist.] 1995, writ denied). And 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,

a motion for extension of time is necessarily implied. See Verburgt v. Dorner, 959 S.W.2d 615, 617

(1997). In that case, the appellant must offer a reasonable explanation for failing to file the notice

of appeal timely. See TEX . R. APP . P. 26.3, 10.5(b)(1)(C); Garcia v. Kastner Farms, Inc., 774

S.W.2d 668, 670 (Tex. 1989).

Because we will not “dismiss an appeal for a procedural defect whenever any arguable

interpretation of the Rules of Appellate Procedure would preserve the appeal,” Verburgt, 959 S.W.2d

at 616, we ordered appellant to file, by December 28, 2009, a response establishing that the notice

of appeal was timely filed by mail or offering a reasonable explanation for failing to timely file the

notice of appeal. We advised appellant that if he failed to satisfactorily respond within the time

provided, the appeal would be dismissed. See TEX . R. APP . P. 42.3(a), (c).

C.C. has not filed a response to our order. Accordingly, we dismiss this appeal for lack of

jurisdiction.

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