Fourth Court of Appeals
San Antonio, Texas
December 4, 2017
No. 04-17-00738-CV
Doria GUTIERREZ,
Appellant
v.
AMERICAN BUILDERS AND CONTRACTOR'S SUPPLY COMPANY INC.,
Appellees
From the County Court At Law No. 10, Bexar County, Texas
Trial Court No. 2016-CV-06004
Honorable John Longoria, Judge Presiding
ORDER
The trial court signed a final judgment on April 7, 2017. Because appellant did not
participate in the hearing or timely file a post-judgment motion, notice of appeal, or request for
findings of fact and conclusions of law, the notice of restricted appeal was due to be filed on
October 7, 2017. See TEX. R. APP. P. 26.1(a). A motion for extension of time to file the notice
of restricted appeal was due on October 23, 207. See TEX. R. APP. P. 26.1(c). Appellant filed
her notice of appeal on October 19, 2017. Although appellant filed a notice of restricted appeal
within the grace period allowed by Rule 26.3, she did not file a motion for extension of time.
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 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). However, the appellant
must offer a reasonable explanation for failing to file the notice of appeal in a timely manner.
See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C). Appellant has not presented to this court a
reasonable explanation for failing to file the notice of appeal in a timely manner.
Additionally, a filing fee of $205.00 was due when appellant filed her notice of appeal,
but it was not paid. See TEXAS SUPREME COURT ORDER REGARDING FEES CHARGED IN THE
SUPREME COURT, IN CIVIL CASES IN THE COURTS OF APPEALS, AND BEFORE THE JUDICIAL PANEL
ON MULTIDISTRICT LITIGATION (Misc. Docket No. 159158, Aug. 28, 2015). Rule 5 of the Texas
Rules of Appellate Procedure provides:
A party who is not excused by statute or these rules from paying costs must pay—
at the time an item is presented for filing—whatever fees are required by statute
or Supreme Court order. The appellate court may enforce this rule by any order
that is just.
TEX. R. APP. P. 5.
Accordingly, we ORDER that appellant file, on or before December 14, 2017, a
response presenting a reasonable explanation for failing to file the notice of appeal in a timely
manner. See Verburgt, 959 S.W.2d at 617. We further ORDER that appellant must either (1)
pay the filing fee or (2) provide written proof to this court that she is indigent or otherwise
excused by statute or the Texas Rules of Appellate Procedure from paying the fee on or before
December 14, 2017. See TEX. R. APP. P. 20.1 (providing that indigent party who complies with
provisions of that rule may proceed without advance payment of costs).
If appellant fails to respond satisfactorily within the time ordered, this appeal will be
dismissed. See TEX. R. APP. P. 42.3. All other appellate deadlines are suspended until further
order of this court.
_________________________________
Irene Rios, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 4th day of December, 2017.
___________________________________
KEITH E. HOTTLE,
Clerk of Court