in the Matter of T. S. ( 2017 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: In the matter of T. S.
Appellate case number: 01-17-00825-CV
Trial court case number: JV21772
Trial court: County Court at Law No. 2 of Brazoria County
Appellant, T. S., a juvenile, filed a notice of appeal through counsel, Christopher
F. Gisentaner, on October 27, 2017, from the juvenile certification judgment signed on
September 26, 2017. See TEX. FAM. CODE ANN. §§ 54.02(a), 56.01(c)(1)(A) (West
2016). Although the appellate records were due by November 6, 2017, no records have
been filed in this Court. In response to this Court’s November 8, 2017 order to file the
reporter’s record, the court reporter, Sarah C. Caldwell, filed an information sheet on
November 13, 2017. This information sheet noted that the reporter’s record had not been
filed because it had neither been requested nor paid for, that appellant was not appealing
as indigent, and the reporter also noted that she was “informed by Mr. Gisentaner that
they were withdrawing their notice of appeal.” To date, neither a motion to dismiss nor a
clerk’s record indicating whether appellant is indigent has been filed.
Appeals in juvenile certification cases are to be brought to final disposition within
180 days of the date the notice of appeal is filed, so far as reasonably possible. See Order
Accelerating Juvenile Certification Appeals and Requiring Juvenile Courts to Give
Notice of the Right to an Immediate appeal, Misc. Docket No. 15-9156 (Tex. Aug. 28,
2015). The notice of appeal in this case was filed on October 27, 2017, from the juvenile
certification judgment signed on September 26, 2017, setting the 180-day compliance
deadline for April 25, 2018. See id. at 3(a).
Although the notice of appeal was untimely filed on October 27, 2017, more than
20 days after the September 26, 2017 judgment, it was filed within the fifteen-day grace
period ending on October 31, 2017. See TEX. R. APP. P. 26.1(b), 26.3(a). 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
extension period provided by Rule 26.3. See TEX. R. APP. P. 26.1(b), 26.3; Verburgt v.
Dorner, 959 S.W.2d 615, 617–18 (Tex. 1997). However, appellant must still offer a
reasonable explanation for failing to file the notice of appeal in a timely manner. See
TEX. R. APP. P. 10.5(b)(1)(C), (b)(2)(A), 26.3(b); Hone v. Hanafin, 104 S.W.3d 884,
886-87 (Tex. 2003); Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998).
Accordingly, the Court orders Christopher F. Gisentaner, counsel for appellant,
T.S., to file a motion to dismiss, if appellant seeks to withdraw this appeal, within 10
days of the date of this order. If appellant does not want to withdraw this appeal, the
Court orders Christopher F. Gisentaner to file a motion for extension of time to file the
notice of appeal, providing a reasonable explanation for failing to file the notice of appeal
in a timely manner, and including whether counsel was appointed or retained.
Appellant’s motion for extension of time must be filed within 10 days of the date of this
order or else this appeal may be dismissed for want of jurisdiction. See TEX. R. APP. P.
42.3(a), (c).
It is so ORDERED.
Judge’s signature: /s/ Laura C. Higley
Acting individually
Date: November 28, 2017