Opinion
No. 04-16-00269-CV
06-02-2016
IN THE ESTATE OF BILLYE M. HORMUTH, DECEASED, Appellant
From the Probate Court No 2, Bexar County, Texas
Trial Court No. 2011PC4120
Honorable Tom Rickhoff, Judge Presiding
ORDER
The trial court signed a final judgment on January 22, 2016. Because appellant did not file a timely motion for new trial, motion to modify the judgment, motion for reinstatement, or request for findings of fact and conclusions of law, the notice of appeal was due to be filed on February 22, 2016. See TEX. R. APP. P. 26.1(a). A motion for extension of time to file the notice of appeal was due on March 7, 2016. See TEX. R. APP. P. 26.3. Appellant filed a notice of appeal and a motion for extension of time on April 28, 2016. It thus appears that neither document was filed within the time allowed for filing a motion for extension of time to file the notice of appeal.
Appellant's docketing statement makes reference to a motion to reinstate being filed on March 23, 2016. The motion to reinstate is not contained in the clerk's record or supplemental clerk's record filed in this appeal; however, the motion to reinstate would need to have been filed by February 22, 2016 in order to be timely. TEX. R. CIV. P. 329b(a). --------
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). 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." Id.
It is therefore ORDERED that appellant show cause in writing within fifteen days from the date of this order why this appeal should not be dismissed for lack of jurisdiction.
/s/_________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 2nd day of June, 2016.
/s/_________
Keith E. Hottle
Clerk of Court