Rey Esquivel D/B/A Esquivel Bail Bonds v. State ( 2020 )

NUMBER 13-20-00385-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
REY ESQUIVEL D/B/A
ESQUIVEL BAIL BONDS Appellant,
v.
THE STATE OF TEXAS, Appellee.
____________________________________________________________
On appeal from the 404th District Court
of Cameron County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Benavides, Hinojosa, and Tijerina
Memorandum Opinion by Justice Hinojosa
This cause is before the Court on its own motion. We must sua sponte consider
whether appellant untimely perfected his appeal to this Court, an issue which affects our
jurisdiction. See State ex rel. Best v. Harper, 562 S.W.3d 1, 7 (Tex. 2018); Allstate Ins.
Co. v. Barnet, 589 S.W.3d 313, 317 (Tex. App.—El Paso 2019, no pet.). After due
consideration, we dismiss the appeal as untimely.
I. BACKGROUND
Appellant attempted to appeal an order denying bill of review entered by the 404th
District Court of Cameron County on March 13, 2020. Appellant did not file his notice of
appeal until August 21, 2020, nearly six months later. On August 7, 2020, the Clerk of the
Court notified appellant that it appeared his appeal was not timely perfected and
requested correction of the defect within ten days. See TEX. R. APP. P. 42.3. Appellant
filed a motion to extend the time to file the notice, and this court improvidently granted the
motion.
II. APPLICABLE LAW
Absent a timely filed notice of appeal, an appellate court lacks jurisdiction over the
appeal. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 307 (Tex. 2010) (orig.
proceeding); Jarrell v. Bergdorf, 580 S.W.3d 463, 466 (Tex. App.—Houston [14th Dist.]
2019, no pet.); Baker v. Regency Nursing & Rehab. Ctrs., Inc., 534 S.W.3d 684, 684–85
(Tex. App.—Corpus Christi–Edinburg 2017, no pet.). Generally, a notice of appeal is due
within thirty days after the judgment is signed. See TEX. R. APP. P. 26.1. The deadline to
file a notice of appeal is extended to ninety days after the date the judgment is signed if,
within thirty days after the judgment is signed, any party timely files a motion for new trial,
motion to modify the judgment, motion to reinstate, or, under certain circumstances, a
request for findings of fact and conclusions of law. See id. R. 26.1(a); TEX. R. CIV. P. 296,
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329b(a),(g); Young v. Di Ferrante, 553 S.W.3d 125, 128 (Tex. App.—Houston [14th Dist.]
2018, pet. denied).
The time to file a notice of appeal also may be extended if, within fifteen days after
the deadline to file the notice of appeal, a party properly files a motion for extension of
time. See TEX. R. APP. P. 10.5(b), 26.3. 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 extension period provided by Rule 26.3.
See id. R. 26.1, 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (discussing
the former appellate rules); Baker, 534 S.W.3d at 684–85; City of Dallas v. Hillis, 308
S.W.3d 526, 529 (Tex. App.—Dallas 2010, pet. denied). Although a motion for extension
of time is necessarily implied, the appellant must still provide a reasonable explanation
for failing to file the notice of appeal timely. See TEX. R. APP. P. 10.5(b)(1)(C), (2)(A);
Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998); Felt v. Comerica Bank, 401
S.W.3d 802, 806 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Any conduct short of
deliberate or intentional noncompliance qualifies as a reasonable explanation for failing
to timely file the notice of appeal. Hone v. Hanafin, 104 S.W.3d 884, 886–87 (Tex. 2003)
(per curiam); Baker, 534 S.W.3d at 685. But, “once the period for granting a motion for
extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate
court’s jurisdiction.” Verburgt, 959 S.W.2d at 617; see Kinnard v. Carnahan, 25 S.W.3d
266, 268 (Tex. App.—San Antonio 2000, no pet.). Stated otherwise, we may not “alter the
time for perfecting an appeal beyond the period” authorized by the appellate rules.
Verburgt, 959 S.W.2d at 617.
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III. ANALYSIS
The order denying bill of review subject to appeal was signed on March 13, 2020.
Appellant did not file his notice of appeal until September 4, 2020, nearly six months later.
The appeal was not filed timely under the appellate rules. See TEX. R. APP. P. 26.1.
IV. CONCLUSION
The Court, having examined and fully considered the appellant’s pleadings, the
clerk’s record, and the applicable law, is of the opinion that the notice of appeal was
untimely, and we lack jurisdiction over the appeal. Accordingly, we VACATE the October
28, 2020 ruling issued which granted appellant’s motion for extension of time to file notice
of appeal. We instead DENY appellant’s motion for extension of time to file notice of
appeal and DISMISS the appeal for lack of jurisdiction. See TEX. R. APP. P. 42.3(a).
LETICIA HINOJOSA
Justice
Delivered and filed the
10th day of December, 2020.
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