Opinion
No. 04-19-00397-CV
08-05-2019
IN RE X.J.F.
From the County Court, Atascosa County, Texas
Trial Court No. 16-08-0720-CVA
Honorable Lynn Ellison, Judge Presiding
ORDER
The trial court signed a final judgment on February 21, 2019. Appellant filed a timely motion for new trial on March 22, 2019. Therefore, the notice of appeal was due to be filed on May 22, 2019. See TEX. R. APP. P. 26.1(a). A motion for extension of time to file the notice of appeal was due on June 6, 2019. See TEX. R. APP. P. 26.3. Although appellant filed a notice of appeal within the fifteen-day grace period allowed by Rule 26.3, he did not file a motion for extension of time.
Appellant also filed an amended notice of appeal, seeking to appeal from the trial court's denial of appellant's motion for new trial; however, only the portion of that order that enters a new judgment on attorney's fees is appealable. See Fain v. Georgen, 03-17-00313-CV, 2017 WL 4766654, at *2 (Tex. App.—Austin Oct. 19, 2017, no pet.) (explaining that a motion for new trial is not independently appealable).
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).
It is therefore ORDERED that appellant file, within fifteen days from the date of this order, 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.
/s/_________
Rebeca C. Martinez, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 5th day of August, 2019.
/s/_________
Keith E. Hottle,
Clerk of Court