Fourth Court of Appeals
San Antonio, Texas
DISSENTING OPINION
No. 04-20-00407-CV
Marian HADDAD,
Appellant
v.
TRI-COUNTY A/C & HEATING, LLC,
Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 16-0908-CV
Honorable Gary L. Steel, Judge Presiding
OPINION DISSENTING TO DENIAL OF MOTION FOR EN BANC RECONSIDERATION
Dissenting Opinion by: Patricia O. Alvarez, Justice, joined by Luz Elena D. Chapa, Justice
Sitting en banc: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Beth Watkins, Justice
Liza Rodriguez, Justice
Delivered and Filed: December 30, 2020
Under Emergency Order 1, and its successive orders with the same language, this court has
the authority to “modify or suspend any and all deadlines and procedures, whether prescribed by
statute, rule, or order,” including the deadline to file a notice of appeal. For the reasons given
below, I would grant the motion for en banc reconsideration. Because the majority does not, I
respectfully dissent from the order denying the motion for en banc reconsideration.
Dissenting Opinion 04-20-00407-CV
BACKGROUND
In the underlying case, the trial court signed a final judgment on April 17, 2020. Haddad
timely filed a motion for new trial, and her notice of appeal was due on July 16, 2020. See TEX.
R. APP. P. 26.1(a). A motion for extension of time to file a notice of appeal was due on July 31,
2020. See TEX. R. APP. P. 26.3. Haddad filed her notice of appeal on August 12, 2020.
The panel advised Haddad that her notice of appeal was filed well after the last day to
timely file a notice of appeal with an extension, and it ordered Haddad to show cause in writing
why this appeal should not be dismissed for want of jurisdiction. See TEX. R. APP. P. 42.3(a);
Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).
Haddad’s timely response explained her notice of appeal was late because she
miscalculated the deadline, in part because of the work-at-home effects of the COVID-19
pandemic, and her “inadvertent mistake constitutes a ‘reasonable explanation’ [for her] failure to
file within the deadline.”
In the panel’s September 30, 2020 opinion, it noted that the Supreme Court of Texas
extended some deadlines in civil cases, but its Twenty-First Emergency Order (EO 21) expressly
excluded “deadlines for perfecting appeal.” See Twenty-First Emergency Order Regarding the
COVID-19 State of Disaster, Misc. Docket No. 20-9091 (Tex. July 31, 2020); Satterthwaite v.
First Bank, No. 02-20-00182-CV, 2020 WL 4359400, at *1 (Tex. App.—Fort Worth July 30,
2020, no pet.) (mem. op.). The panel’s opinion was consistent with a sister court’s opinion and
the jurisdictional nature of a timely notice of appeal. See TEX. R. APP. P. 2; Satterthwaite, 2020
WL 4359400, at *1.
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Dissenting Opinion 04-20-00407-CV
MOTION, RESPONSE
A. Appellant’s Motion for En Banc Reconsideration
In her motion for en banc reconsideration, Haddad restates her previous argument. In
implementing the COVID-19 pandemic safety measures, her appellate counsel’s staff began
working from home. This disrupted their normal calendaring practices, caused them to make a
“mistake in calculating the deadline to perfect her appeal,” and thus her notice of appeal was filed
after the applicable deadline. Haddad asserts her calendaring mistake is a reasonable explanation
for her late notice of appeal, and she asks this court to apply EO 21’s guidance to generously grant
her request to reinstate her appeal.
B. Appellee’s Response
In its response, Appellee Tri-County A/C & Heating, LLC argues Haddad’s motion should
be denied for three reasons. First, Haddad did not explain why her motion for en banc
reconsideration was untimely. Second, Haddad has not shown en banc reconsideration is
necessary for uniformity of the court’s decisions or for extraordinary circumstances. And third,
Haddad’s untimely notice of appeal deprived this court of subject matter jurisdiction.
I address the parties’ arguments and the reasoning in the panel’s September 30, 2020
opinion, beginning with the opinion.
DISCUSSION
A. Previous Opinion
In the panel’s September 30, 2020 opinion, it focused on EO 21’s plain language that states
it “[did] not extend deadlines for perfecting appeal or for other appellate proceedings.” Like some
sister courts, the panel construed that language to mean this court lacked authority to “alter the
time for perfecting an appeal in a civil case.” See TEX. R. APP. P. 2; Cantu v. Trevino, No. 13-20-
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Dissenting Opinion 04-20-00407-CV
00299-CV, 2020 WL 6073267, at *5 (Tex. App.—Corpus Christi Sept. 24, 2020, no pet.) (“[T]he
supreme court’s emergency orders tolling deadlines explicitly do not apply to deadlines for
perfecting appeal.”); Satterthwaite, 2020 WL 4359400, at *1 n.1 (same).
B. Broad Discretion
Having reviewed EO 21 in the context of the supreme court’s other emergency orders, I
now draw a different conclusion. To begin, in EO 1, the supreme court granted all courts, including
courts of appeals, broad discretion to change previously established deadlines and procedures:
Subject only to constitutional limitations, all courts in Texas may in any case, civil
or criminal . . . [m]odify or suspend any and all deadlines and procedures,
whether prescribed by statute, rule, or order, for a stated period ending no later
than thirty days after the Governor’s state of disaster has been lifted . . . .
First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-9042
(Tex. Mar. 13, 2020) (emphasis added).
In six subsequent orders, i.e., 12, 17, 18, 22, 26, 29, the supreme court has either renewed
or repeated the same broad, authorizing language:
Subject only to constitutional limitations, all courts in Texas may in any case, civil
or criminal . . . modify or suspend any and all deadlines and procedures,
whether prescribed by statute, rule, or order, for a stated period ending no later
than September 30, 2020 . . . .
E.g., Twenty-Second Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket
No. 20-9095 (Tex. Aug. 6, 2020) (emphasis added).
C. Reexamining EO 21
With the supreme court’s broad authorizing language in mind, I reexamine the relevant,
operative language in EO 21:
3. Any deadline for the filing or service of any civil case that falls on a day
between March 13, 2020, and September 1, 2020, is extended until September 15,
2020. This does not include deadlines for perfecting appeal or for other appellate
proceedings, requests for relief from which should be directed to the court involved
and should be generously granted.
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Dissenting Opinion 04-20-00407-CV
Twenty-First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-
9091 (Tex. July 31, 2020).
The first sentence grants an automatic extension of the filing and service deadlines; no
action by the party is required, and the deadlines are extended without a party’s request. The
second sentence merely notes the “deadlines for perfecting appeal or for other appellate
proceedings” are not included in the automatic extension; instead, parties must request relief from
the court and the requested relief “should be generously granted.”
Contrary to the panel’s original view, I now conclude that the second sentence merely
excludes deadlines for perfecting appeals from an automatic extension of time; it does not
expressly or impliedly restrict courts’ authority to “modify or suspend any and all deadlines and
procedures.”
D. Authority to Extend Deadline to Perfect Appeal
Under EO 29 and its predecessors, the supreme court expressly authorizes courts to
“modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or
order.” See, e.g., Twenty-Ninth Emergency Order Regarding the COVID-19 State of Disaster,
Misc. Docket No. 20-9135 (Tex. Nov. 11, 2020). One rule courts may modify or suspend is
Rule 26.1, which sets the deadline for the time to perfect an appeal in a civil case. See TEX. R.
APP. P. 26.1. Courts of appeal may also modify or suspend Rule 2’s prohibition against “alter[ing]
the time for perfecting an appeal in a civil case.” See TEX. R. APP. P. 2. Thus, under the supreme
court’s authority temporarily granted to all courts, I conclude this court may extend the time to file
a notice of appeal. See, e.g., Twenty-Ninth Emergency Order Regarding the COVID-19 State of
Disaster, Misc. Docket No. 20-9135 (Tex. Nov. 11, 2020).
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Dissenting Opinion 04-20-00407-CV
E. Discretionary Authority to Grant Extension
Under EO 29 and its predecessors, all courts “may . . . modify or suspend any and all
deadlines and procedures.” See id. (emphasis added). The emergency order’s plain language
makes the grant of authority permissive or discretionary. See TEX. GOV’T CODE ANN. § 311.016
(“‘May’ creates discretionary authority or grants permission or a power.”); Bonsmara Nat. Beef
Co., LLC v. Hart of Tex. Cattle Feeders, LLC, 603 S.W.3d 385, 391 (Tex. 2020).
In exercising that discretion, the court considers established precedent which allows
negligence as a reasonable explanation. See Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003)
(noting that “a reasonable explanation is ‘any plausible statement of circumstances indicating that
failure to file within the [specified] period was not deliberate or intentional, but was the result of
inadvertence, mistake or mischance’”).
Further, EO 21 and its siblings state requests for relief “should be generously granted.”
See, e.g., Twenty-First Emergency Order Regarding the COVID-19 State of Disaster, Misc.
Docket No. 20-9091 (Tex. July 31, 2020). Using “should” indicates a propriety or an encouraged
action, and “generously granted” suggests an even more liberal standard for matters affected by
the COVID-19 pandemic.
Given the supreme court’s guidance that courts should generously grant requested relief,
and exercising discretion in light of the relevant circumstances, I would grant Haddad’s motion
for extension of time to file her motion for en banc reconsideration and deem her motion for en
banc reconsideration timely filed.
F. Grounds for En Banc Consideration
I recognize “[e]n banc consideration of a case is not favored and should not be ordered
unless necessary to secure or maintain uniformity of the court’s decisions or unless extraordinary
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Dissenting Opinion 04-20-00407-CV
circumstances require en banc consideration.” TEX. R. APP. P. 41.2; see Wal-Mart Stores, Inc. v.
Miller, 102 S.W.3d 706, 708 n.1 (Tex. 2003) (per curiam). But in this case, both uniformity and
extraordinary circumstances are at issue.
This court is faced with late notices of appeal in other cases, and it could use en banc
reconsideration to decide the question to ensure uniformity of its decisions. See TEX. R. APP. P.
41.2, 49.7; City of San Antonio v. Hartman, 201 S.W.3d 667, 671 (Tex. 2006) (recognizing that a
court may order en banc consideration even without a motion).
Further, although miscalculating a date is typically not an extraordinary circumstance, the
COVID-19 pandemic that caused the miscalculation here is unquestionably an extraordinary
circumstance. See, e.g., First Emergency Order Regarding the COVID-19 State of Disaster, Misc.
Docket No. 20-9042 (Tex. Mar. 13, 2020).
I conclude en banc reconsideration is warranted under these circumstances.
CONCLUSION
The supreme court has temporarily authorized all courts to “modify or suspend any and all
deadlines and procedures,” and I conclude this court may modify or suspend Rule 2 and Rule 26.1
to extend the time to perfect an appeal. I would exercise that discretionary authority to grant
Haddad’s motion for extension of time to file a motion for en banc reconsideration. I would also
grant her motion for en banc reconsideration, withdraw the panel’s September 30, 2020 opinion
and judgment, and direct the clerk of this court to reinstate this appeal on the court’s docket.
Because the court decides otherwise, I respectfully dissent.
Patricia O. Alvarez, Justice
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