Salas, Samuel & Lucy D/B/A Spring Branch Auto v. Auto Concepts ( 2003 )

Opinion issued January 16, 2003

  In The

Court of Appeals  

For The  

First District of Texas  

____________

NO. 01-02-00154-CV

____________

SAMUEL SALAS AND LUCY SALAS, INDIVIDUALLY AND D/B/A SPRING BRANCH MECHANICS, Appellants

V.

AUTO CONCEPTS, INC., Appellee

---

On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 739,048

---

MEMORANDUM OPINION

          This is an appeal from a post-answer default judgment signed on October 23, 2001. A motion for new trial was timely filed; however, appellants’ notice of appeal was filed on February 4, 2002, 14 days late. See Tex. R. App. P. 26.1(a)(1). Appellants did not file a motion for extension of time to file their notice of appeal. See Tex. R. App. P. 26.1. The appellate filing fee of $125 has not been paid by appellants and appellants’ brief has not been filed, and both are past due.

          On June 6, 2002, this Court issued an order, stating in pertinent part as follows:

 (1)Although we construe a notice of appeal filed beyond the time allowed by rule 26.1(a)(1), but within the 15-day period allowed under Tex. R. App. P. 26.3, to imply a motion for an extension of time, it is still necessary for an appellant to offer a reasonable explanation for their failure to timely file a notice of appeal. Coronado v. Farming Technology, Inc., 994 S.W.2d 901, 901 (Tex. App.—Houston [1st Dist.] 1999) (order); see Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998) (applying Verburgt holding to pauper’s affidavit filed in lieu of appeal bond); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (under predecessor rule of rule 26.3, motion for extension of time necessarily implied when appellant acting in good faith files appeal bond within 15-day extension period).

Unless within 30 days of the date of this order, appellants file an explanation reasonably explaining their failure to timely file their notice of appeal, this appeal will be dismissed for want of jurisdiction. Coronado, 994 S.W.2d at 902; Tex. R. App. P. 42.3(a).

(2)Appellants’ appeal is subject to dismissal for nonpayment of the filing fee. See Tex. R. App. P. 5.

(3)Assuming appellants file an explanation reasonably explaining their failure to timely file their notice of appeal so that the Court holds it has jurisdiction of this appeal, appellants’ brief is late. Unless within 30 days of the date of this order, appellants file their brief and reasonably explain their failure to timely file their brief, appellants’ appeal will be dismissed. See Tex. R. App. P. 38.8(1).

          A reasonable explanation for appellants’ failure to timely file their notice of appeal has not been filed by appellants. Furthermore, the appellate filing fee has not been paid, and appellants have not filed their brief with a reasonable explanation for their failure to timely file it.

          Accordingly, for the reasons set forth in the Court’s order of June 6, 2002, the appeal is dismissed for want of jurisdiction. All pending motions are overruled as moot.

PER CURIAM

Panel consists of Chief Justice Radack and Justices Nuchia and Jennings.