Peter Barton v. Ana Lisa Garza

• Court: Court of Appeals of Texas
• Decided: April 8, 2014
• Docket: 04-14-00207-CV
• Status: Published

Opinion

Ana

Fourth Court of Appeals San Antonio, Texas April 8, 2014

No. 04-14-00207-CV

Peter BARTON, Appellant

v.

Ana Lisa GARZA, Appellee

From the 229th Judicial District Court, Duval County, Texas Trial Court No. DC-12-308 Honorable Dick Alcala, Judge Presiding

ORDER The trial court signed a final judgment on November 25, 2013. Appellant filed a timely motion for new trial on December 23, 2013. Therefore, the notice of appeal was due to be filed on February 24, 2014. See TEX. R. APP. P. 26.1(a). Appellant filed a notice of appeal on February 28, 2014. A motion for extension of time to file the notice of appeal was due on March 11, 2014. See TEX. R. APP. P. 26.3. Although appellant filed a notice of appeal within the fifteen-day grace period allowed by Rule 26.3, he did not file a motion for extension of time.

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 Texas Rule of Appellate Procedure 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 (Tex. 1997) (construing the predecessor to Rule 26). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C).

We, therefore, ORDER appellant to file, within fourteen days from the date of this order, a response presenting a reasonable explanation for failing to file the notice of appeal in a timely manner. If appellant fails to respond within the time provided, the appeal will be dismissed. See 42.3(c).

_________________________________ Karen Angelini, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 8th day of April, 2014.

___________________________________ Keith E. Hottle Clerk of Court