Drue Allen Hollis v. Probate Court No. 1 of Tarrant County, Probate Court No. 2 of Tarrant County, Tarrant County Sheriff Bill E. Waybourn, and Tarrant County Hospital District D/B/A JPS Health Network ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00226-CV
___________________________
DRUE ALLEN HOLLIS, Appellant
V.
PROBATE COURT NO. 1 OF TARRANT COUNTY, PROBATE COURT NO. 2
OF TARRANT COUNTY, TARRANT COUNTY SHERIFF BILL E. WAYBOURN,
AND TARRANT COUNTY HOSPITAL DISTRICT D/B/A JPS HEALTH
NETWORK, Appellees
On Appeal from the 352nd District Court
Tarrant County, Texas
Trial Court No. 352-301866-18
Per Curiam Memorandum Opinion
MEMORANDUM OPINION
Appellant Drue Allen Hollis attempts to appeal from the trial court’s
interlocutory order1 granting summary judgment in favor of Appellees Probate Court
No. 1 of Tarrant County, Probate Court No. 2 of Tarrant County, Tarrant County
Sheriff Bill E. Waybourn, and Tarrant County Hospital District d/b/a JPS Health
Network (collectively, Tarrant County).2 The trial court signed the interlocutory order
on May 31, 2019, making Hollis’s notice of appeal due June 20, 2019. See Tex. R. App.
P. 26.1(b) (stating that a notice of appeal in an accelerated appeal must be filed within
20 days after the judgment or order signed), 28.1(a) (stating that appeals from
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The trial-court clerk has informed us that parties and claims remain pending in
the trial court and that the trial court has not signed a final judgment.
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We have jurisdiction to consider appeals from final judgments or from
interlocutory orders made immediately appealable by statute. See Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 195 (Tex. 2001). Here, Tarrant County’s summary-judgment
grounds included governmental immunity. Thus, had Hollis’s notice of appeal been
timely, we would have had jurisdiction to consider this appeal insofar as the trial court
could have dismissed some of Hollis’s claims on immunity grounds. See Tex. Civ.
Prac. & Rem. Code Ann. § 51.014(a)(8) (providing for an appeal from an interlocutory
order granting a governmental unit’s plea to the jurisdiction); Tex. Dep’t of Criminal
Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004) (observing that an interlocutory
appeal may be taken under section 51.014(a)(8) whether a jurisdictional argument is
presented in a plea to the jurisdiction or a summary-judgment motion because the
right of appeal is tied to the substance of the issue raised and not to any particular
procedural vehicle); Liverman v. Denton Cty., No. 02-17-00240-CV, 2017 WL 6377437,
at *1–2 (Tex. App.—Fort Worth Dec. 14, 2017, no pet.) (mem. op.) (dismissing
portion of appeal from order granting jurisdictional plea that complained of trial
court’s dismissal of claims against government officials in their individual capacities
but addressing portion of appeal that complained of dismissal of claims against
governmental unit and government officials in their official capacities).
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interlocutory orders are accelerated appeals). Hollis filed his notice of appeal on June
21, 2019, one day late.
On July 18, 2019, we notified Hollis of our concern that we lacked jurisdiction
over this appeal because his notice of appeal was untimely. We warned Hollis that we
would dismiss the appeal for want of jurisdiction unless he or any party desiring to
continue the appeal filed a response by July 29, 2019, showing a reasonable
explanation for the late filing of the notice of appeal. See Tex. R. App. P. 10.5(b),
26.3(b), 42.3(a), 43.2(f). We have received no response.
The time for filing a notice of appeal is jurisdictional, and absent a timely-filed
notice of appeal or motion for extension of time to file the notice of appeal, we must
dismiss the appeal. See Tex. R. App. 2, 25.1(b), 26.1, 26.3, 28.1(b); Jones v. City of
Houston, 976 S.W.2d 676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615,
617 (Tex. 1997). 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 15-day period in which the appellant would be entitled to move to
extend the filing deadline under rule 26.3. See Jones, 976 S.W.2d at 677; Verburgt,
959 S.W.2d at 617; see also Tex. R. App. P. 26.1, 26.3, 28.1(b). But even when an
extension motion is implied, an appellant is still required to provide a reasonable
explanation for the delay in filing the notice of appeal. See Jones, 976 S.W.2d at 677;
Linville v. Leuty Ave. Apartments, No. 02-18-00186-CV, 2018 WL 3763934, at *1 (Tex.
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App.—Fort Worth Aug. 9, 2018, no pet.) (per curiam) (mem. op.); see also Tex. R.
App. P. 10.5(b)(1)(C), (b)(2)(A), 26.3(b).
Here, Hollis’s notice of appeal was untimely but was filed within the 15-day
period in which an extension is implied. Even so, Hollis was still required to provide
an explanation for needing an extension. See Jones, 976 S.W.2d at 677; Verburgt,
959 S.W.2d at 617; Linville, 2018 WL 3763934, at *1. Because he did not, his notice of
appeal is untimely. See Linville, 2018 WL 3763934, at *1. Accordingly, we dismiss the
appeal for want of jurisdiction. 3 See Tex. R. App. P. 42.3(a), 43.2(f); Jones, 976 S.W.2d
at 677; Verburgt, 959 S.W.2d at 917; Linville, 2018 WL 3763934, at *1.
Per Curiam
Delivered: August 30, 2019
We dismiss Tarrant County’s “Motion to Dismiss for Lack of Jurisdiction” as
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moot.
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