in the Interest of L.J.K. and C.A.K., Children ( 2021 )

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Fourth Court of Appeals
San Antonio, Texas
December 16, 2021
No. 04-20-00596-CV
IN THE INTEREST OF L.J.K. AND C.A.K., CHILDREN
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CI01008
Honorable Mary Lou Alvarez, Judge Presiding
ORDER
On December 14, 2021, appellee filed a motion to dismiss for want of
jurisdiction. Appellee contends appellant’s notice of appeal was not timely.
The trial court signed the judgment on August 26, 2020. Because appellant timely filed a
motion for new trial, the notice of appeal was due on November 24, 2020. Although the notice
of appeal was provided by this court to the trial court on December 14, 2020, appellant filed his
notice of appeal in this court on December 11, 2020. TEX. R. APP. P. 25.1(a) (“An appeal is
perfected when a written notice of appeal is filed with the trial court clerk. If a notice of appeal
is mistakenly filed with the appellate court, the notice is deemed to have been filed the same day
with the trial court clerk, and the appellate clerk must immediately send the trial court clerk a
copy of the notice.” (emphasis added)). The fifteen-day extension of time in which to file the
notice of appeal expired on December 9, 2020. The envelope in which appellant mailed his
notice of appeal is date-stamped December 7, 2020. See TEX. R. CIV. P. 5 (“If any document is
sent to the proper clerk by first-class United States mail in an envelope or wrapper properly
addressed and stamped and is deposited in the mail on or before the last day for filing same, the
same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be
deemed filed in time. A legible postmark affixed by the United States Postal Service shall be
prima facie evidence of the date of mailing.”).
Although appellant mailed his notice of appeal within the fifteen-day grace period
allowed by Rule of Appellate Procedure 26.3, he did not file a motion for extension of time. 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 fifteen-day grace period
provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959
S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26). However, the appellant
must offer a reasonable explanation for failing to file the notice of appeal in a timely
manner. See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C).
Because this court did not provide appellant with an opportunity to offer a reasonable
explanation, in the interest of justice, we do so now. It is therefore ORDERED that appellant
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file, no later than December 31, 2021, a response presenting a reasonable explanation for
failing to file the notice of appeal in a timely manner. If appellant fails to respond within the
time provided, the appeal will be dismissed. See TEX. R. APP. P. 42.3(c). All other appellate
deadlines are suspended until further order of this court. Appellee’s motion to dismiss is HELD
IN ABEYANCE pending further order of this court.
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Lori I. Valenzuela, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 16th day of December, 2021.
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MICHAEL A. CRUZ, Clerk of Court