Guest v. Dixon

JAMES T. CAMPBELL, Justice,

dissenting.

Disagreeing with my colleagues that we lack jurisdiction over this appeal, I respectfully dissent from its dismissal.

The rule stated in McConnell v. May, 800 S.W.2d 194 (Tex.1990) (orig. proceeding), by which an unverified motion to reinstate filed under Rule 165a of the Rules of Civil Procedure is held not to extend the due date of the notice of appeal under Rule 26.1(a) of the Rules of Appellate Procedure, seems to me an exception to the general policy that disfavors the defeat of appellate jurisdiction by procedural defects and irregularities. See, e.g., Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.1997).

In at least one other context, the case law draws a distinction between the effect of a procedural error on the appellate timetable and other consequences of the error. In Tate v. E.I. DuPont de Nemours & Co., Inc., 934 S.W.2d 83, 84 (Tex.1996), the Supreme Court held that the failure to pay the required filing fee with a motion for new trial may forfeit the mov-ant’s opportunity to have the motion considered by the trial court, but it does not invalidate the motion’s filing for purposes of extending the due date for appeal. Similarly, in Marathon Corp. v. Pitzner ex rel. Pitzner, 55 S.W.3d 114, 125 (Tex.App.-Corpus Christi 2001), rev’d on other grounds, 106 S.W.3d 724 (Tex.2003), the court held that an appellant’s failure to pay the filing fee with a motion for new trial until after the motion was overruled by operation of law and the trial court lost plenary power did not keep the motion from extending the appellate timetable, even though it rendered the motion ineffective to preserve error on the issues that were dependent on a timely filed motion.

For the narrow purpose of determining whether a motion to reinstate has been filed and the time to perfect appeal thus extended under Rule 26.1(a)(3), and in the interest of the “simplicity and certainty in appellate procedure” that our Supreme Court has stated is desirable, Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex.2001), I would apply a similar analysis here and would limit McConnell to instances in which there is a complete absence of verification. Since appellant’s motion to reinstate was not entirely unverified, I would find that its filing was effective to extend the date appellant’s notice of appeal was due under Rule 26.1(a), that appellant’s notice of appeal was therefore timely filed and that we have jurisdiction of the appeal.