Opinion
NO. 14-16-00099-CV
11-30-2017
IN THE MATTER OF THE MARRIAGE OF ANDRZEJ ADAMSKI AND OKSANA ADAMSKI
On Appeal from the 328th District Court Fort Bend County, Texas
Trial Court Cause No. 12-DCV-199667
ORDER
This court issued its opinion and judgment in this case on July 25, 2017. Appellant filed a motion for rehearing which was denied October 24, 2017. A motion for en banc reconsideration may be filed, when permitted, within fifteen days after a court of appeals' denial of the party's last filed motion for rehearing. Tex. R. App. P. 49.7. Appellant filed a motion for en banc reconsideration on November 20, 2017, more than 15 days after this court's denial of his last 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, however.
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 en banc reconsideration 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