Mission Consolidated Isd v. Esperanza Diaz, Individually and as Next Friend of Her Child, Christian Diaz

• Court: Court of Appeals of Texas
• Decided: March 15, 2012
• Docket: 13-11-00759-CV
• Status: Published

Opinion

NUMBER 13-11-00759-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ___________________________________________________________

MISSION CONSOLIDATED ISD, Appellant,

v.

ESPERANZA DIAZ, INDIVIDUALLY AND AS NEXT FRIEND OF HER CHILD, CHRISTIAN DIAZ, Appellee. ____________________________________________________________

On Appeal from the 93rd District Court of Hidalgo County, Texas. ____________________________________________________________

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

Appellant, Mission Consolidated ISD, attempted to perfect an appeal from an order

denying a plea to the jurisdiction entered by the 93rd District Court of Hidalgo County,

Texas, in cause number C-2309-09-B. The order in this cause was signed on November 4, 2011.

In an accelerated appeal, the notice of appeal must be filed within twenty days

after the judgment or order is signed. TEX. R. APP. P. 26.1(b). The appellate court may

extend the time to file the notice of appeal, if, within fifteen days after the deadline for filing

the notice of appeal, the party files the notice of appeal in the trial court and files in the

appellate court a motion for extension of time that complies with the appellate rules. TEX.

R. APP. P. 26.3; see In re K.A.F., 160 S.W.3d 923, 926-27 (Tex. 2005). Appellant’s

notice of appeal was due to have been filed on or before November 28, 2011. However,

appellant did not file his notice of appeal until December 2, 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 December 5, 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 January 13, 2012, the Court granted

appellant’s motion for extension of time to cure defect to perfect appeal, giving appellant

2 until January 30, 2012, to cure the defect. To date, no response has been 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 and

appellant=s failure to timely perfect the appeal, 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).

PER CURIAM

Delivered and filed the 15th day of March, 2012.