via Metropolitan Transit Authority v. Manuel Flores ( 2022 )

Fourth Court of Appeals San Antonio, Texas November 29, 2022 No. 04-21-00233-CV VIA METROPOLITAN TRANSIT AUTHORITY, Appellant v. Manuel FLORES, Appellee From the County Court at Law No. 3, Bexar County, Texas Trial Court No. 2018CV06515 Honorable David J. Rodriguez, Judge Presiding ORDER Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice (not participating) Luz Elena D. Chapa, Justice (not participating) Irene Rios, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice Lori I. Valenzuela, Justice This court issued its opinion and judgment on August 3, 2022. Appellee timely filed his motion for extension of time to file his motion for rehearing on August 23, 2022. See TEX. R. APP. P. 49.9. This court then granted an extension to October 3, 2022. On October 3, 2022, Appellee timely filed his motion for rehearing. See TEX. R. APP. P. 49.1, 49.9. On October 20, 2022, this court denied Appellee’s motion for rehearing. On November 3, 2022, Appellee filed a motion for extension of time to file a motion for en banc reconsideration. Texas Rule of Appellate Procedure 49.9 allows a court of appeals to “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. 49.9. Rule 49.5 permits a party to file a motion for en banc reconsideration as a separate motion, with or without filing a motion for rehearing. The motion must be filed within the time prescribed by Rule 49.1 for filing a motion for rehearing. TEX. R. APP. P. 49.5. The comment to Rule 49.5 makes clear that a “motion for en banc reconsideration must be filed by the deadline for filing an initial motion for rehearing under subdivision 49.1.” TEX. R. APP. P. 49.5 cmt. to 2021 change (emphasis added). Rule 49.1 provides that a “motion for rehearing may be filed within 15 days after the court of appeals’ judgment or order is rendered.” TEX. R. APP. P. 49.1. The exception to this deadline is found in Rule 49.4, titled “Further Motion for Rehearing”: After a court decides a motion for rehearing, a further motion for rehearing may be filed within 15 days of the court’s action if the court: (a) modifies its judgment; (b) vacates its judgment and renders a new judgment; or (c) issues a different opinion. TEX. R. APP. P. 49.4 Here, the deadline for filing the initial motion for rehearing was October 3, 2022. While this court denied Appellee’s motion for rehearing on October 20, 2022, this court did not modify its judgment, vacate its judgment and render a new judgment, or issue a different opinion. Accordingly, Appellee’s motion for extension of time to file a motion rehearing en banc is untimely. We therefore DENY Appellee’s motion for extension of time to file his motion for en banc reconsideration. _________________________________ Liza A. Rodriguez, Justice IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 29th day of November, 2022. ___________________________________ MICHAEL A. CRUZ, Clerk of Court