Rey Esquivel D/B/A Esquivel Bail Bonds v. State

• Court: Court of Appeals of Texas
• Decided: December 10, 2020
• Docket: 13-20-00385-CV
• Status: Published

Opinion

NUMBER 13-20-00385-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

REY ESQUIVEL D/B/A ESQUIVEL BAIL BONDS Appellant,

v.

THE STATE OF TEXAS, Appellee. ____________________________________________________________

On appeal from the 404th District Court of Cameron County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Benavides, Hinojosa, and Tijerina Memorandum Opinion by Justice Hinojosa

This cause is before the Court on its own motion. We must sua sponte consider

whether appellant untimely perfected his appeal to this Court, an issue which affects our

jurisdiction. See State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018); Allstate Ins. Co. v. Barnet, 589 S.W.3d 313, 317 (Tex. App.—El Paso 2019, no pet.). After due

consideration, we dismiss the appeal as untimely.

I. BACKGROUND

Appellant attempted to appeal an order denying bill of review entered by the 404th

District Court of Cameron County on March 13, 2020. Appellant did not file his notice of

appeal until August 21, 2020, nearly six months later. On August 7, 2020, the Clerk of the

Court notified appellant that it appeared his appeal was not timely perfected and

requested correction of the defect within ten days. See TEX. R. APP. P. 42.3. Appellant

filed a motion to extend the time to file the notice, and this court improvidently granted the

motion.

II. APPLICABLE LAW

Absent a timely filed notice of appeal, an appellate court lacks jurisdiction over the

appeal. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 307 (Tex. 2010) (orig.

proceeding); Jarrell v. Bergdorf, 580 S.W.3d 463, 466 (Tex. App.—Houston [14th Dist.]

2019, no pet.); Baker v. Regency Nursing & Rehab. Ctrs., Inc., 534 S.W.3d 684, 684–85

(Tex. App.—Corpus Christi–Edinburg 2017, no pet.). Generally, a notice of appeal is due

within thirty days after the judgment is signed. See TEX. R. APP. P. 26.1. The deadline to

file a notice of appeal is extended to ninety days after the date the judgment is signed if,

within thirty days after the judgment is signed, any party timely files a motion for new trial,

motion to modify the judgment, motion to reinstate, or, under certain circumstances, a

request for findings of fact and conclusions of law. See id. R. 26.1(a); TEX. R. CIV. P. 296,

2 329b(a),(g); Young v. Di Ferrante, 553 S.W.3d 125, 128 (Tex. App.—Houston [14th Dist.]

2018, pet. denied).

The time to file a notice of appeal also may be extended if, within fifteen days after

the deadline to file the notice of appeal, a party properly files a motion for extension of

time. See TEX. R. APP. P. 10.5(b), 26.3. 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 extension period provided by Rule 26.3.

See id. R. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (discussing

the former appellate rules); Baker, 534 S.W.3d at 684–85; City of Dallas v. Hillis, 308

S.W.3d 526, 529 (Tex. App.—Dallas 2010, pet. denied). Although a motion for extension

of time is necessarily implied, the appellant must still provide a reasonable explanation

for failing to file the notice of appeal timely. See TEX. R. APP. P. 10.5(b)(1)(C), (2)(A);

Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998); Felt v. Comerica Bank, 401

S.W.3d 802, 806 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Any conduct short of

deliberate or intentional noncompliance qualifies as a reasonable explanation for failing

to timely file the notice of appeal. Hone v. Hanafin, 104 S.W.3d 884, 886–87 (Tex. 2003)

(per curiam); Baker, 534 S.W.3d at 685. But, “once the period for granting a motion for

extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate

court’s jurisdiction.” Verburgt, 959 S.W.2d at 617; see Kinnard v. Carnahan, 25 S.W.3d

266, 268 (Tex. App.—San Antonio 2000, no pet.). Stated otherwise, we may not “alter the

time for perfecting an appeal beyond the period” authorized by the appellate rules.

Verburgt, 959 S.W.2d at 617.

3 III. ANALYSIS

The order denying bill of review subject to appeal was signed on March 13, 2020.

Appellant did not file his notice of appeal until September 4, 2020, nearly six months later.

The appeal was not filed timely under the appellate rules. See TEX. R. APP. P. 26.1.

IV. CONCLUSION

The Court, having examined and fully considered the appellant’s pleadings, the

clerk’s record, and the applicable law, is of the opinion that the notice of appeal was

untimely, and we lack jurisdiction over the appeal. Accordingly, we VACATE the October

28, 2020 ruling issued which granted appellant’s motion for extension of time to file notice

of appeal. We instead DENY appellant’s motion for extension of time to file notice of

appeal and DISMISS the appeal for lack of jurisdiction. See TEX. R. APP. P. 42.3(a).

LETICIA HINOJOSA Justice

Delivered and filed the 10th day of December, 2020.