Marvin Willie Hawkins v. John Malone

• Court: Court of Appeals of Texas
• Decided: August 27, 2015
• Docket: 10-15-00265-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-15-00265-CV

MARVIN WILLIE HAWKINS, Appellant v.

JOHN MALONE, Appellee

From the 414th District Court McLennan County, Texas Trial Court No. 2015-1271-5

MEMORANDUM OPINION

Marvin Willie Hawkins appeals the trial court’s order granting a severance in the

proceeding below. By letter dated August 3, 2015, the Clerk of this Court notified

Hawkins that this appeal was subject to dismissal because it appeared that his notice of

appeal was untimely. By the same letter, the Clerk warned Hawkins that the appeal

would be dismissed unless, within 10 days from the date of the letter, a response was

filed showing grounds for continuing the appeal. Hawkins filed a response, and while it is helpful in understanding the delay, it confirms that we do not have jurisdiction of

this appeal because the notice of appeal was filed late.

The trial court’s order was signed on April 6, 2015. Absent the filing of a

pleading that would extend the due date, Hawkins’s notice of appeal was due May 6,

2015. See TEX. R. APP. P. 26.1. It was not filed until July 22, 2015.

Hawkins responded to the Clerk’s August 3, 2015 letter by filing a motion for

extension of time to file his notice of appeal. He also attached a motion for new trial

which was filed with the trial court clerk on May 6, 2015. Because the motion for new

trial was timely filed, Hawkins’s notice of appeal was due by July 6, 2015. TEX. R. CIV.

P. 329b(a); TEX. R. APP. P. 26.1(a). As noted previously, Hawkins did not file his notice

of appeal until July 22, 2015. An extension of time to file a notice of appeal may be

granted if, within 15 days after the deadline for filing a notice of appeal, the appealing

party files a notice of appeal with the trial court and also files a motion for extension of

time to file a notice of appeal with the appellate court. See TEX. R. APP. P. 26.3. A

motion for extension of time to file a notice of appeal will be implied, however, if only

the notice of appeal is filed within the time period specified by the Rule. See Verburgt v.

Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Hawkins did not comply with this rule.

Hawkins’s deadline for filing his notice of appeal was July 6, 2015. To be granted

an extension of time to file a notice of appeal, he was required to file a notice of appeal

and a motion for extension of time to file his notice of appeal by July 21, 2015. His

Hawkins v. Malone Page 2 notice of appeal was filed on July 22, 2015, one day past the 15 day time period to

request an extension of time under Rule 26.3. The implied motion for extension of time

is impliedly filed at the same time as the notice of appeal is filed; thus, the implied

motion for extension of time was also “filed” on July 22, 2015, one day late. See

Verburgt, 959 S.W.2d at 617. Hawkins’s written motion for extension of time to file his

notice of appeal was not filed until August 14, 2015. Accordingly, Hawkins’s motions

for extension of time, both written and implied, are untimely and are dismissed.

Further, because Hawkins’s notice of appeal is untimely, this appeal is

dismissed. Id. 42.3(a).

Absent a specific exemption, the Clerk of the Court must collect filing fees at the

time a document is presented for filing. TEX. R. APP. P. 12.1(b); Appendix to TEX. R. APP.

P., Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007). See also TEX. R.

APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. §§ 51.207(b); 51.208; §

51.941(a) (West 2013). Under these circumstances, we suspend the rule and order the

Clerk to write off all unpaid filing fees in this case. TEX. R. APP. P. 2. The write-off of

the fees from the accounts receivable of the Court in no way eliminates or reduces the

fees owed.

TOM GRAY Chief Justice

Hawkins v. Malone Page 3 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Motion dismissed Appeal dismissed Opinion delivered and filed August 27, 2015 [CV06]

Hawkins v. Malone Page 4