Noel and Norma Castillo v. Maria Teresa Martinez

• Court: Texas Court of Appeals, 8th District (El Paso)
• Decided: March 12, 2026
• Docket: 08-25-00239-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ————————————

No. 08-25-00239-CV

————————————

Noel and Norma Castillo, Appellants

v.

Maria Teresa Martinez, Appellee

On Appeal from the 448th District Court El Paso County, Texas Trial Court No. 2024DCV3787

M E MO RA N D UM O PI NI O N Appellants, Noel and Norma Castillo, attempt to appeal from an order they identified in

their notice of appeal as “the certain Second Order Denying Plaintiff’s Motion to Vacate 91a

Dismissal Order and Reinstate the Case.” The order denying reinstatement and to vacate the dismissal of the case was signed on September 11, 2025. Because we conclude the appeal was not

timely perfected in this Court, we dismiss the case for want of jurisdiction.

In August 2024, Appellants filed suit against Appellee, Maria Teresa Martinez. The trial

court signed an order granting Appellee’s motion to dismiss on April 25, 2025 (the April Order),

pursuant to Texas Rule of Civil Procedure 91a. The District Clerk sent notice of the judgment to

all parties the same day. Appellants filed a motion for new trial and a motion to vacate the 91a

dismissal order and to reinstate the case, respectively, on May 7, 2025, and May 9, 2025. The trial

court denied both motions by separate orders signed on June 5, 2025. On August 26, 2025, or four

months after the April Order, the trial court issued an order setting a hearing on Appellants’

previously denied motion to reinstate. After a hearing, the trial court signed an order denying

Appellants’ motion to vacate on September 11, 2025 (the September Order). Appellants filed their

notice of appeal challenging that order on October 6, 2025.

On October 9, 2025, the Clerk of this Court notified Appellants it appeared there was no

appealable order or final judgment, thus depriving this Court of jurisdiction over the appeal. The

notice warned that the case would be submitted for dismissal after ten days unless Appellants filed

a response showing why the Court had jurisdiction. Tex. R. App. P. 42.3(a). Appellants responded

by arguing that the trial court signed a final, appealable order affirming its dismissal of Appellants’

lawsuit and denying their motion to reinstate on September 11, 2025.

After the clerk’s record was filed on January 7, 2026, the Clerk of the Court next notified

Appellants that it appeared that the trial court entered a final judgment on April 25, 2025, and

because Appellants’ notice of appeal was not filed until October 6, 2025, it appeared that the notice

of appeal was untimely and the Court lacked jurisdiction over the appeal. The notice again warned

2 that the appeal would be submitted for dismissal within ten days unless Appellants filed a response

showing a basis for the Court’s jurisdiction. Tex. R. App. P. 42.3(a).

Appellants responded, asserting that the April Order was void because Appellee’s motion

to dismiss, on which it was based, did not invoke Rule 91a as grounds for dismissal, and that a

void judgment “cannot have any force or effect.” Appellants thus maintained the April Order did

not commence the appellate timetable. Instead, they contended the September Order constituted

the only final, appealable order in the case, and based on the date of that order, their appeal was

timely filed. We disagree.

When a trial court signs a final, appealable order, an appellant must ordinarily file the notice

of appeal within 30 days. Tex. R. App. P. 26.1. However, if any party timely files a motion for new

trial, or other plenary-power extending motion, then the timeline is extended and the notice of

appeal must be filed within 90 days of the date of the judgment. Tex. R. App. P. 26.1(a). Coupled

with these timetables, Texas courts hold that a party cannot attack a void judgment in an untimely

direct appeal. See Kenseth v. Dallas County, 126 S.W.3d 584, 597 (Tex. App.—Dallas 2004, pet.

denied) (rejecting the argument that a void order can be attacked on direct appeal at any time, even

with an untimely notice of appeal); In re Estate of Courvier, No. 04-07-00469-CV, 2007 WL

2935809, at *1 (Tex. App.—San Antonio Oct. 10, 2007, no pet.) (mem. op.) (per curiam) (“[E]ven

a void judgment can become final for the purposes of appeal.”). Rather, after the time to bring a

direct appeal has expired, a party may only bring an attack against a void judgment through a

collateral attack. In re Thompson, 569 S.W.3d 169, 172 (Tex. App.—Houston [1st Dist.] 2018, no

pet.); see also JD Auto Corp. v. Bell, 697 S.W.3d 441, 449 (Tex. App.—El Paso 2024, no pet.)

(“There is no set procedure nor time period for bringing a collateral attack against a void

judgment.”). A collateral attack, however, “is accomplished through initiating a new case under a

3 different cause number that challenges the effect of the original judgment.” In re Thompson, 569

S.W.3d at 172. Here, Appellants did not file a collateral attack in the trial court. They instead filed

a direct appeal challenging the September Order and asserted that the April Order was void and of

no legal effect.

Whether void or not, Appellants do not dispute that the April Order dismissed all of

Appellants’ claims pursuant to Rule 91a, and thus it was a final order. Following the signing of

that order, Appellants acted on it by filing a timely motion for new trial, which extended the 30-

day appellate timetable to 90-days, from May 26, 2025, to July 24, 2025. Tex. R. App. P.

26.1(a)(1). Appellants, however, did not file their notice of appeal until October 6, 2025, or 164

days after the April Order and outside the 90-day deadline. To the extent the notice of appeal could

be read as challenging the April Order, it failed to timely invoke this Court’s jurisdiction. Tex. R.

App. P. 26.1(a)(1); Salas v. State Farm Mut. Auto. Ins. Co., 226 S.W.3d 692, 695 (Tex. App.—El

Paso 2007, no pet.) (“Absent a timely filed notice of appeal, we must dismiss an appeal for lack of

jurisdiction.”).

Appellants argue, however, that the September Order is the only final, appealable order,

and because their notice was filed within 30 days’ of that order, the appeal was timely. Again, we

disagree. “Although the filing of a timely post-judgment motion may extend the deadline to file a

notice of appeal, an order on a motion challenging a final judgment is generally not appealable

separate from the underlying judgment.” In re Benavides, 605 S.W.3d 234, 240 (Tex. App.—San

Antonio 2020, pet. denied). Rather, when a timely post-judgment motion is filed, the deadline to

file a notice of appeal is determined by the date of the final judgment, not the date the motion is

denied. See Tex. R. App. P. 26.1(a) (providing that when a timely post-judgment motion is filed, a

4 notice of appeal may be filed within 90 days “after the judgment is signed”). Consequently, the

September Order is not appealable as a separate order. See In re Benavides, 605 S.W.3d at 240.

Because Appellants failed to timely perfect their appeal, we dismiss the appeal for want of

jurisdiction. Tex. R. App. P. 42.3(a).

GINA M. PALAFOX, Justice

March 12, 2026

Before Palafox and Soto, JJ., Benavides, J. (Senior Judge) Benavides, J. (Senior Judge), sitting by assignment