Maria Aide Delgado A/K/A Track W330'-N156' FT 266 1.18 AC GR 0.84 AC Net, A/K/A 7222 North Mile 4 West, A/K/A RR9 Box 404-P Weslaco, Texas v. the State of Texas and the Hidalgo Sheriff's Department

• Court: Court of Appeals of Texas
• Decided: June 27, 2024
• Docket: 13-24-00188-CV
• Status: Published

Opinion

NUMBER 13-24-00188-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

MARIA AIDE DELGADO A/K/A TRACK W330’-N156 FT 266 1.18 AC GR 0.84 AC NET A/K/A 7222 NORTH MILE 4 WEST, A/K/A RR9 BOX 404-P WESLACO, TEXAS, Appellant,

v.

THE STATE OF TEXAS AND THE HIDALGO SHERIFF’S DEPARTMENT, Appellees.

ON APPEAL FROM THE 92ND DISTRICT COURT OF HIDALGO COUNTY, TEXAS

MEMORANDUM OPINION Before Justices Benavides, Longoria, and Silva Memorandum Opinion by Justice Benavides

Appellant Maria Aide Delgado filed a notice of appeal from the trial court’s order dismissing her equitable bill of review. We dismiss for want of jurisdiction.

The clerk’s record and reporter’s record have not been filed. The scant record

before us reflects that on August 31, 2023, Delgado filed an equitable bill of review

seeking relief from a judgment originally entered on May 12, 2012. The trial court signed

an order denying Delgado’s bill of review on November 8, 2023. That same day, Delgado

filed a motion to reconsider, and the following day, she requested findings of fact and

conclusions of law.

On January 11, 2024, the trial court held a hearing on Delgado’s motion for

reconsideration, and on March 20, 2024, the trial court signed an order denying said

motion. On April 15, 2024, Delgado filed her notice of appeal, resulting in the creation of

this appellate cause. On May 20, 2024, the Clerk of this Court notified Delgado that her

notice of appeal appeared to be untimely, and thus, subject to dismissal. See TEX. R. APP.

P. 42.3.

On May 29, 2024, Delgado filed a second amended notice of appeal and a

response to the Clerk’s notice, arguing that: (1) because the trial court held a hearing on

her motion to reconsider, the time to file a notice of appeal was extended; and (2) she is

appealing from both the trial court’s order dismissing her equitable bill of review and the

trial court’s order denying her motion to reconsider, which was signed by the trial court on

March 20, 2024. Thus, according to Delgado, her April 15, 2024 notice of appeal was

timely.

With certain exceptions, notices of appeal generally must be filed within thirty days

after the judgment is signed. Id. R. 26.1. However, if the appellant files a plenary-power-

2 extending pleading, as Delgado did here, they may file a notice of appeal up to ninety

days after the judgment is signed. Id. R. 26.1(a). In this case, that required Delgado to file

her notice of appeal by February 6, 2024. Id. The trial court’s hearing on Delgado’s motion

to reconsider did not operate to extend that deadline again in some fashion. Only an order

modifying the trial court’s final judgment in some way would operate to extend the time to

file a notice of appeal, and there is no indication that the trial court signed any order to

this effect. See TEX. R. CIV. P. 329b(h).

Further, an order denying a motion to reconsider is not an independent judgment,

and it does not operate to extend the appellate timetable. See Naaman v. Grider, 126

S.W.3d 73, 74 (Tex. 2003) (per curiam) (concluding that neither an order granting a new

trial nor an order denying a new trial operated to extend the time to file a notice of appeal);

State Off. of Risk Mgmt. v. Berdan, 335 S.W.3d 421, 428 (Tex. App.—Corpus Christi–

Edinburg 2011, pet. denied) (“The order denying SORM’s motion to reconsider . . . was

not independently appealable so as to start a new timetable for perfecting the appeal.”);

see also Morris v. Wells Fargo Bank, N.A., No. 01-19-00610-CV, 2019 WL 4677365, at

*1 (Tex. App.—Houston [1st Dist.] Sept. 26, 2019, no pet.) (mem. op.) (“An appeal must

be taken from the final judgment, not the refusal to reconsider that judgment.”); Macklin

v. Saia Motor Freight Lines, Inc., No. 06-12-00038-CV, 2012 WL 1155141, at *1 (Tex.

App.—Texarkana April 6, 2012, no pet.) (mem. op.) (“An order denying a motion for

reconsideration or motion for new trial is not a judgment, and is not independently

appealable.”). If Delgado sought review from the trial court’s order denying her motion to

reconsider, she was still required to file a notice of appeal within ninety days of the trial

3 court’s order denying her equitable bill of review. See TEX. R. APP. P. 26.1(a); Naaman,

126 S.W.3d at 74; Berdan, 335 S.W.3d at 428.

Finally, even if an order denying a motion to reconsider was independently

appealable, the trial court’s order in this case is a legal nullity. See State ex rel. Latty v.

Owens, 907 S.W.2d 484, 486 (Tex. 1995). In the event a motion to reconsider “is not

determined by written order signed within seventy-five days after the judgment was

signed, it shall be considered overruled by operation of law on expiration of that period.”

TEX. R. CIV. P. 329b(c), (g). Accordingly, the denial of Delgado’s motion to reconsider

occurred by operation of law on January 22, 2024, and the trial court’s plenary power

expired on February 21, 2024. See id.; In re Brookshire Grocery Co., 250 S.W.3d 66, 72

(Tex. 2008) (orig. proceeding). But the trial court’s order denying Delgado’s motion to

reconsider was signed on March 20, 2024, after the trial court’s plenary power expired,

and thus, we would have no jurisdiction to review the merits of that order even if it was an

independent final judgment. See Owens, 907 S.W.2d at 486 (“The court of appeals should

have dismissed the State’s appeal for lack of jurisdiction because the order appealed from

was signed long after the district court’s plenary jurisdiction had expired.”).

Because Delgado’s notice of appeal is untimely, we dismiss this cause for want of

jurisdiction. See TEX. R. APP. P. 42.3(a).

GINA M. BENAVIDES Justice

Delivered and filed on the 27th day of June, 2024.