In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00040-CV
IN THE INTEREST OF O.A.P., A CHILD
On Appeal from the 237th District Court
Lubbock County, Texas
Trial Court No. 2011-559,782, Honorable Leslie Hatch, Presiding
March 20, 2015
ORDER ON MOTION FOR REHEARING
Before QUINN, C.J. and CAMPBELL and HANCOCK, J.J.
Pending before the court is appellant’s motion for rehearing. We dismissed the
appeal for want of jurisdiction. The notice of appeal had been filed after the lapse of
both the original due date and the 15-day extension contemplated by Texas Rule of
Appellate Procedure 26.3. See TEX. R. APP. P. 26.3 (allowing the court to extend the
time to file the notice of appeal if, within 15 days after the original deadline expires, the
party files a notice of appeal and a motion to extend). Yet, appellant had timely moved
to extend the deadline. That motion, according to appellant, purportedly evinced a bona
fide attempt to invoke our jurisdiction. See Southerland v. Wright, No. 07-06-0147-CV,
2006 Tex. App. LEXIS 5241, at *2-3 (Tex. App.—Amarillo June 15, 2006, pet. denied)
(stating that “though a document purporting to be a notice may fail to satisfy all the
elements of a proper notice . . . it may nonetheless be enough. All depends upon
whether the instrument depicts a bona fide attempt to invoke an appellate court’s
jurisdiction”).
That filing a timely, yet defective, document evincing an intent to appeal may
effectively perfect an appeal is beyond doubt. Much depends on whether the
instrument constitutes a bona fide attempt to invoke the appellate court’s jurisdiction. In
the Interest of J.M., 396 S.W.3d 528, 530 (Tex. 2013). In J.M., the appellant filed a
document entitled motion for new trial, or “in the alternative, Notice of Appeal.” Id. at
529. Our Supreme Court interpreted that instrument as sufficient to perfect the appeal
because 1) nothing prevented an appellant from combining a motion for new trial and a
notice of appeal in the same document, 2) the item “indicated that Spencer was
attempting to invoke the appellate court’s jurisdiction,” 3) it stated that “Spencer
‘wishe[d] to appeal this case to’ the court of appeals,” 4) “it was partly entitled a notice of
appeal,” and 5) “the notice of appeal portion addresses the appellate court.” Id. at 530.
Unlike the situation in J.M., the motion relied on by appellant at bar does not
have in its title “notice of appeal.” Yet, it is directed to the appellate court and invokes
an aspect of our jurisdiction, that is, our authority to extend the deadline because
“Appellant’s counsel was under the misunderstanding the notice of appeal had to come
after receipt of the findings of facts and conclusions of law . . . .” Accompanying that
purported basis for needing an extension are statements that 1) “[a]fter the Supreme
Court’s decision in Garcia v. Kastner Farm, Inc., an attorney’s misunderstanding of the
law can be a reasonable explanation” justifying an extension of the appellate deadline
and 2) “[t]he undersigned attorney’s failure to file the notice of appeal within the 90
2
days, was not deliberate or intentional, but was the result of mistake.” Read together,
the utterances evince an intent to prosecute an appeal. Indeed, a timely document
seeking leave to file a late notice of appeal and explaining why the party failed to tender
the requisite notice earlier cannot logically be interpreted in other way. Implicit within it
is the notion that the party wants to prosecute an appeal. So, we interpret the timely
filed motion for extension as the requisite bona fide effort contemplated by both
Southerland and J.M.1
Admittedly, the situation before us pushes the borders of what constitutes a bona
fide effort. Yet, the Supreme Court mandated both that the form of the document is not
controlling, In the Interest of J.M., 396 S.W.3d at 530, and that dismissal for a
procedural defect should be avoided whenever any arguable interpretation of the
appellate rules would preserve the appeal. Ryland Enterprises, Inc. v. Weatherspoon
355 S.W.3d 664, 665 (Tex. 2011); Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.
1997). We abide by those caveats here.
The motion for rehearing is granted. Our previous order dismissing the appeal
for want of jurisdiction is vacated, and the appeal is reinstated on our docket. We
further trust that counsel will become knowledgeable of and abide by the rules of
appellate procedure to facilitate an efficient disposition of this appeal.
Brian Quinn
Chief Justice
1
Appellee, Andrew Perez, cites us to McCray v. Flores, No. 09-03-076-CV, 2003 Tex. App.
LEXIS 3551 (Tex. App.—Beaumont April 24, 2003, no pet.) (mem. op.) as authority holding that a motion
to extend the deadline applicable to perfecting an appeal is not a bona fide effort to invoke our
jurisdiction. Though the court so held in McCray, it did so because the movant apparently “asked for
more time in which to decide whether to appeal.” Id. at *3-4. The appellant at bar did more than simply
ask for time to “decide whether to appeal.” He indicated that he wanted to appeal but needed leave from
the court to file his notice.
3