in Re Lawrence Edward Thompson ( 2014 )

Order filed May 13, 2014.
In The
Fourteenth Court of Appeals
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NO. 14-14-00247-CV
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IN RE LAWRENCE EDWARD THOMPSON, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
61st District Court
Harris County, Texas
Trial Court Cause No. 2013-10948
ORDER
This court issued its opinion in this case on April 15, 2014. Texas Rule of
Appellate Procedure 49.1 provides for the filing of a motion for rehearing within
fifteen days after a court of appeals’ judgment or order is rendered. Tex. R. App.
Proc. 49.1. Relator filed his motion for rehearing on May 6, 2014, more than fifteen
days after this court’s ruling on relator’s petition for writ of mandamus. See Tex. R.
App. P. 49.7.
“A court of appeals may extend the time for filing a motion for rehearing or en
banc reconsideration if a party files a motion complying with Texas Rule of
Appellate Procedure 10.5(b) no later than fifteen days after the last date for filing the
motion.” Tex. R. App. P. 49.8. A party seeking an extension of time in the court
of appeals is required to file a motion specifically stating the facts that reasonably
explain the need for an extension. Rios v. Calhoon, 889 S.W.2d 257, 259 (Tex.
1994); see also Tex. R. App. P. 10.5(b)(1)(C) (requiring motion to extend time to
include facts upon which movant relies to reasonably explain the need for an
extension). No motion for extension of time was filed in this case, however.
The Supreme Court of Texas has consistently treated minor procedural
mistakes with leniency to preserve appellate rights. See Verburgt v. Dorner, 959
S.W.2d 615, 616−17 (Tex. 1997) (implying extension of time when a party perfects
an appeal in good faith within the fifteen-day period for filing an extension). Thus,
a motion for extension of time can be implied when a motion for rehearing en banc is
filed within the fifteen-day period for filing a motion for extension of time if the
appellant thereafter files a motion complying with Texas Rule of Appellate
Procedure 10.5(b)(1) that contains a reasonable explanation to support the late filing.
See Houser v. McElveen, 243 S.W.3d 646, 647 (Tex. 2008); see also Miller v.
Greenpark Surgery Ctr. Assoc., Ltd., 974 S.W.2d 805, 807 (Tex. App.—Houston
[14th Dist.] 1998, no pet.) (implying extension but requiring reasonable
explanation).
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Accordingly, unless relator files with the clerk of this court a motion that
complies with Texas Rule of Appellate Procedure 10.5(b)(1) and provides a
reasonable explanation for the late filing of the party’s motion for rehearing within
ten days of the date of this order, the court will deny as untimely the motion for
rehearing.
PER CURIAM
Panel consists of Chief Justice Frost and Justices Jamison and Wise.
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