Roberto Villarreal, Ramona Villarreal, Viola Villarreal Garcia, Gloria Villarreal Salinas and Fernando Villarreal v. Chesapeake Zapata, L.P., Chesapeake Operating, Inc.

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00071-CV

Roberto VILLARREAL, Ramona Villarreal, Viola Villarreal Garcia,
Gloria Villarreal Salinas and Fernando Villarreal,
Appellants

v.

CHESAPEAKE ZAPATA, L.P., Chesapeake Operating, Inc.,
Appellees

From the 49th Judicial District Court, Zapata County, Texas
Trial Court No. 8848
Honorable Jose A. Lopez, Judge Presiding

PER CURIAM

Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice

Delivered and Filed: March 27, 2019

DISMISSED FOR LACK OF JURISDICTION

The trial court signed a final order on October 11, 2018. Appellants timely filed a motion

for new trial on November 12, 2018. Therefore, appellants’ notice of appeal was due to be filed

no later than January 9, 2019. See TEX. R. APP. P. 26.1(a). A motion for extension of time to file

the notice of appeal was due on January 24, 2019, fifteen days after the deadline for filing notice

of appeal. See TEX. R. APP. P. 26.3.

On February 5, 2019, appellants filed their notice of appeal, and on February 6, 2019,

appellants filed a motion for extension of time to file their notice of appeal. Because the notice of
 04-19-00071-CV

appeal and motion were filed after the expiration of the fifteen-day grace period allowed by Rule

26.3, we ordered appellants to show cause in writing why this appeal should not be dismissed for

lack of jurisdiction.

In their response to this court’s order, appellants assert the failure to timely file the notice

of appeal was due to the mistaken calculation of the deadline, noting the trial court set a hearing

on their motion for new trial for February 4, 2019. Appellants urge this court to allow the appeal

to be decided on its merits and not based on a procedural default. Appellees filed a response to

appellants’ motion for extension of time asserting this court does not have the authority to extend

the deadline for perfecting an appeal beyond the deadline the Texas Supreme Court has provided,

even for good cause.

As the Texas Supreme Court has instructed, 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, 617 (Tex. 1997) (construing the

predecessor to Rule 26). 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.” Id.; see

also TEX. R. APP. P. 2 (prohibiting appellate court from “alter[ing] time for perfecting an appeal”).

Because appellants did not timely file a notice of appeal, we must dismiss the appeal for lack of

jurisdiction.

PER CURIAM

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