ON MOTION FOR REHEARING EN BANC OPINION ON ORDER DISMISSING APPEAL
GREEN, Justice.
The motions for en banc reconsideration of appellees’ motions to dismiss are granted. The opinion issued March 20, 1996 is withdrawn and the following is substituted. ■
The sole question before us is whether appellant has invoked our jurisdiction. We conclude that he has not.
The judgment below was signed on October 10, 1995. No motion for new trial was filed; therefore, appellant’s cost bond was due to be filed November 9, 1995. The cost bond was not filed, however, until November 13, 1995. No motion for extension of time was filed within fifteen days of the due date. See Tex.R.App. P. 41(a)(2). Consequently, on December 21, 1995, we ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction.
In response to our show cause order, appellant argued that the cost bond was not actually due until November 10, 1995, which was a legal holiday falling on a Friday, thus extending the due date until Monday, November 13, 1995. See Tex.R.App. P. 5(a); Tex. Gov’t Code Ann. §§ 662.003, 662.021 (Vernon 1994).1 Appellant explained his method of calculation of the cost bond deadline as follows: By rule, the day the judgment is signed is not to be counted when computing time periods. See Tex.R.App. P. 5(a). Therefore, moving to the next day, appellant determined that October 11 was the 284th day of 1995. To that number, appellant added thirty days to arrive at the due date for the cost bond — the 314th day of 1995, or November 10,1995.
Implicitly, Rule 5(a) requires that the day after the judgment be included as the first day when computing the appellate timetable. But it is evident that appellant’s method of calculation effectively excluded the first day after the event, resulting in appellant’s arriving at an erroneous, and late, due date.
Appellant’s cost bond, although late, was filed well within the fifteen-day extension period allowed by Tex.R.App. P. 41(a)(2). Clearly, had a motion for extension of time been filed during this period, we would not be addressing this question. And quite obviously, had appellant known his cost bond was late he no doubt would have timely filed a motion for extension of time.
We are, therefore, confronted with the question of whether the appellate rules condone a result that allows a litigant who knows he is late with his bond to save his appeal, but rejects the appeal of the litigant who erroneously, but in good faith, believes he has timely filed his bond and, thus satisfied, also believes he has no need to file for an extension of time. The patent unfairness of such a result is striking and seems to be counter to the basic purpose underlying the [656]*656procedural rules.2 But balanced against this apparent unfairness is the requirement in the law that there be finality to judgments. Finality is achieved by the setting of arbitrary deadlines in the rules. And sometimes, as shown in this case, the effect of strict application of the appellate deadlines is unavoidably harsh.
We recognize that the rules favor a policy of addressing cases on their merits rather than disposition based on procedural dead-falls. And to that end, some courts have invoked equitable principles in order to reach the merits of eases that would otherwise face dismissal. In Sanchez v. State, 885 S.W.2d 444, 446 (Tex.App.—Corpus Christi 1994, no pet.), the court, applying Rule 83,3 held that the late filing of a notice of appeal within the fifteen-day grace period without a motion for an extension of time was a procedural irregularity that could be corrected; a motion for extension of time was therefore “necessarily implie[d].” 4 Id. at 445; see Tex.R.App. P. 83 (No Affirmance, Reversal or Dismissal for Want of Form or Substance); see also Boulos v. State, 775 S.W.2d 8 (Tex.App.—Houston [1st Dist.] 1989, pet. ref'd) (jurisdiction retained where notice of appeal filed on fifteenth day after due date, but without a motion for extension of time); Jiles v. State, 751 S.W.2d 620, 621 (Tex.App.—Houston [1st Dist.] 1988, pet. ref'd) (jurisdiction accepted under Rules 2(b) and 83).
But when facing the identical question as here, the court of criminal appeals took a more restrictive approach. In Olivo v. State, 918 S.W.2d 519 (Tex.Crim.App.1996), the court held that “[w]hen a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction.” 918 S.W.2d at 522. This holding, that the failure to file a timely motion for extension of time is a jurisdictional defect that cannot be cured, is the prevailing view of a majority of courts, including this one. See Jones v. State, 900 S.W.2d 421 (Tex.App.—Texarkana 1995, no pet.); Olivo v. State, 894 S.W.2d 58 (Tex.App.—San Antonio 1994), affirmed, 918 S.W.2d 519 (Tex.Crim.App.1996); Ludwig v. Enserch Corp., 845 S.W.2d 338 (Tex.App.—Houston [1st Dist.] 1992, no writ);5 El Paso Sharky’s Billiard Parlor, Inc. v. Amparan, 831 S.W.2d 3 (Tex.App.—El Paso 1992, writ denied).
And while the supreme court has liberally construed the rules regarding the instruments necessary to confer jurisdiction, we do not discern a retreat in that court from the fundamental requirement that in order to invoke the jurisdiction of the court of appeals, some instrument, whether or not it is the correct instrument, must be timely filed. See Linwood v. NCNB Texas, 885 S.W.2d 102 (Tex.1994) (per curiam) (timely filed notice of appeal, although the wrong instrument, was sufficient to confer jurisdiction); Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex.1991) (per curiam) (timely filed notice of [657]*657appeal, instead of a cost bond, was sufficient to confer jurisdiction).6
We are, therefore, persuaded that the jurisdictional principles confirmed in Olivo for criminal cases also apply in the civil context. Accordingly, we hold that in civil cases, an instrument intended to perfect appeal must be timely filed in order to invoke the jurisdiction of the court of appeals.
As applied to this case, in the absence of a timely filed cost bond, this court lacks jurisdiction to act unless the appellant filed a motion for extension of time within the fifteen day grace period.
Free access — add to your briefcase to read the full text and ask questions with AI
ON MOTION FOR REHEARING EN BANC OPINION ON ORDER DISMISSING APPEAL
GREEN, Justice.
The motions for en banc reconsideration of appellees’ motions to dismiss are granted. The opinion issued March 20, 1996 is withdrawn and the following is substituted. ■
The sole question before us is whether appellant has invoked our jurisdiction. We conclude that he has not.
The judgment below was signed on October 10, 1995. No motion for new trial was filed; therefore, appellant’s cost bond was due to be filed November 9, 1995. The cost bond was not filed, however, until November 13, 1995. No motion for extension of time was filed within fifteen days of the due date. See Tex.R.App. P. 41(a)(2). Consequently, on December 21, 1995, we ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction.
In response to our show cause order, appellant argued that the cost bond was not actually due until November 10, 1995, which was a legal holiday falling on a Friday, thus extending the due date until Monday, November 13, 1995. See Tex.R.App. P. 5(a); Tex. Gov’t Code Ann. §§ 662.003, 662.021 (Vernon 1994).1 Appellant explained his method of calculation of the cost bond deadline as follows: By rule, the day the judgment is signed is not to be counted when computing time periods. See Tex.R.App. P. 5(a). Therefore, moving to the next day, appellant determined that October 11 was the 284th day of 1995. To that number, appellant added thirty days to arrive at the due date for the cost bond — the 314th day of 1995, or November 10,1995.
Implicitly, Rule 5(a) requires that the day after the judgment be included as the first day when computing the appellate timetable. But it is evident that appellant’s method of calculation effectively excluded the first day after the event, resulting in appellant’s arriving at an erroneous, and late, due date.
Appellant’s cost bond, although late, was filed well within the fifteen-day extension period allowed by Tex.R.App. P. 41(a)(2). Clearly, had a motion for extension of time been filed during this period, we would not be addressing this question. And quite obviously, had appellant known his cost bond was late he no doubt would have timely filed a motion for extension of time.
We are, therefore, confronted with the question of whether the appellate rules condone a result that allows a litigant who knows he is late with his bond to save his appeal, but rejects the appeal of the litigant who erroneously, but in good faith, believes he has timely filed his bond and, thus satisfied, also believes he has no need to file for an extension of time. The patent unfairness of such a result is striking and seems to be counter to the basic purpose underlying the [656]*656procedural rules.2 But balanced against this apparent unfairness is the requirement in the law that there be finality to judgments. Finality is achieved by the setting of arbitrary deadlines in the rules. And sometimes, as shown in this case, the effect of strict application of the appellate deadlines is unavoidably harsh.
We recognize that the rules favor a policy of addressing cases on their merits rather than disposition based on procedural dead-falls. And to that end, some courts have invoked equitable principles in order to reach the merits of eases that would otherwise face dismissal. In Sanchez v. State, 885 S.W.2d 444, 446 (Tex.App.—Corpus Christi 1994, no pet.), the court, applying Rule 83,3 held that the late filing of a notice of appeal within the fifteen-day grace period without a motion for an extension of time was a procedural irregularity that could be corrected; a motion for extension of time was therefore “necessarily implie[d].” 4 Id. at 445; see Tex.R.App. P. 83 (No Affirmance, Reversal or Dismissal for Want of Form or Substance); see also Boulos v. State, 775 S.W.2d 8 (Tex.App.—Houston [1st Dist.] 1989, pet. ref'd) (jurisdiction retained where notice of appeal filed on fifteenth day after due date, but without a motion for extension of time); Jiles v. State, 751 S.W.2d 620, 621 (Tex.App.—Houston [1st Dist.] 1988, pet. ref'd) (jurisdiction accepted under Rules 2(b) and 83).
But when facing the identical question as here, the court of criminal appeals took a more restrictive approach. In Olivo v. State, 918 S.W.2d 519 (Tex.Crim.App.1996), the court held that “[w]hen a notice of appeal is filed within the fifteen-day period but no timely motion for extension of time is filed, the appellate court lacks jurisdiction.” 918 S.W.2d at 522. This holding, that the failure to file a timely motion for extension of time is a jurisdictional defect that cannot be cured, is the prevailing view of a majority of courts, including this one. See Jones v. State, 900 S.W.2d 421 (Tex.App.—Texarkana 1995, no pet.); Olivo v. State, 894 S.W.2d 58 (Tex.App.—San Antonio 1994), affirmed, 918 S.W.2d 519 (Tex.Crim.App.1996); Ludwig v. Enserch Corp., 845 S.W.2d 338 (Tex.App.—Houston [1st Dist.] 1992, no writ);5 El Paso Sharky’s Billiard Parlor, Inc. v. Amparan, 831 S.W.2d 3 (Tex.App.—El Paso 1992, writ denied).
And while the supreme court has liberally construed the rules regarding the instruments necessary to confer jurisdiction, we do not discern a retreat in that court from the fundamental requirement that in order to invoke the jurisdiction of the court of appeals, some instrument, whether or not it is the correct instrument, must be timely filed. See Linwood v. NCNB Texas, 885 S.W.2d 102 (Tex.1994) (per curiam) (timely filed notice of appeal, although the wrong instrument, was sufficient to confer jurisdiction); Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex.1991) (per curiam) (timely filed notice of [657]*657appeal, instead of a cost bond, was sufficient to confer jurisdiction).6
We are, therefore, persuaded that the jurisdictional principles confirmed in Olivo for criminal cases also apply in the civil context. Accordingly, we hold that in civil cases, an instrument intended to perfect appeal must be timely filed in order to invoke the jurisdiction of the court of appeals.
As applied to this case, in the absence of a timely filed cost bond, this court lacks jurisdiction to act unless the appellant filed a motion for extension of time within the fifteen day grace period. Because the motion for extension of time was not timely filed— indeed, it was not filed at all — this court is without jurisdiction to consider the merits of the appeal.
The appeal is dismissed.