Adrienne Gallien v. Goose Creek Consolidated Independent School District ( 2013 )

Order filed June 6, 2013
In The
Fourteenth Court of Appeals
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NO. 14-11-00938-CV
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ADRIENNE GALLIEN, Appellant
V.
GOOSE CREEK CONSOLIDATED INDEPENDENT SCHOOL DISTRICT,
Appellee
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2009-10149
ORDER
This court overruled appellant’s last timely filed motion for rehearing on
May 16, 2013. Texas Rule of Appellate Procedure 49.7 provides for the filing of a
motion for en banc reconsideration within 15 days after a court of appeals’ denial
of the party’s last timely filed motion for rehearing. Tex. R. App. Proc. 49.7.
Appellant filed a motion for en banc reconsideration June 4, 2013, more than 15
days after this court denied appellant’s last timely filed motion for rehearing.
“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 Rule 10.5(b) no
later than 15 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 relied on to
reasonably explain the need for an extension). No motion for extension of time
was filed in this case.
The Texas Supreme Court 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 15-day period for filing an extension). Thus, a
motion for extension of time can be implied when a motion for rehearing is filed
within the 15-day period for filing a motion for extension of time if the appellant
thereafter files a motion complying with Rule 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).
Accordingly, unless appellant 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 en banc
reconsideration within 10 days of the date of this order, the court will deny the
motion for en banc reconsideration as untimely.
PER CURIAM