Javier H. Perez v. Patricia Villarreal and Israel Villarreal

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Fourth Court of Appeals
San Antonio, Texas
April 9, 2013

No. 04-13-00148-CV

Javier H. PEREZ,
Appellant

v.

Patricia VILLARREAL and Israel Villarreal,
Appellees

From the 111th Judicial District Court, Webb County, Texas
Trial Court No. 2011-CVT-000406-D2
Honorable Monica Z. Notzon, Judge Presiding

ORDER

Appellant appeals a judgment signed January 23, 2013. Appellant did not file a timely
motion that would have extended the appellate timetable. See TEX. R. CIV. P. 329b(g); TEX. R.
APP. P. 26.1(a). Thus, the notice of appeal was due February 22, 2013, or a motion for extension
of time to file the notice of appeal was due fifteen days later on March 11, 2013. See TEX. R.
APP. P. 26.1, 26.3. Appellant did not file a timely notice of appeal or a motion for extension of
time to file the notice of appeal. However, on February 28, 2013, appellant filed a notice of
appeal.

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
grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v.
Dorner, 959 S.W.2d 615, 615 (1997). However, the appellant must offer a reasonable
explanation for failing to file the notice of appeal timely. See id.; TEX. R. APP. P. 26.3,
10.5(b)(1)(C); see also Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989).
Additionally, a notice of appeal may appear to be late filed if placed in the mail according to
Rule 9.2.1 TEX. R. APP. P. 9.2(b); see, e.g., Molina v. Kelco Tool & Die, Inc., 904 S.W.2d 857,
860 (Tex. App.CHouston [1st Dist.] 1995, writ denied).

We therefore order that appellant may file, on or before April 29, 2013, a response
offering a reasonable explanation for failing to file the notice of appeal timely or establishing

1 The certificate of service and the letter accompanying appellant’s notice of appeal shows the notice of appeal was
mailed February 23, 2013, which was one day late. Accordingly, the mailbox rule does not apply to render the filing
of the notice of appeal timely.
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that the notice was timely filed. If appellant fails to satisfactorily respond within the time
provided, the appeal will be dismissed. See TEX. R. APP. P. 42.3(a), (c). If a supplemental
clerk’s record is required, appellant must ask the trial court clerk to prepare one and must notify
the clerk of this court that such a request was made.

The clerk of this court is ordered to send a copy of this order to appellant and all counsel

____________________________________
Marialyn Barnard, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 9th day of April, 2013.

____________________________________
Keith E. Hottle
Clerk of Court