Opinion
NO. 14-16-00944-CV
04-20-2017
JESSICA ANNIE BEAVERS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court Harris County, Texas
Trial Court Cause No. 1516008
ORDER
This is an appeal from a final judgment of forfeiture of certain gambling devices, equipment, and proceeds. See Tex. Code Crim. Proc. Ann. art. 18.18(b). The State filed a motion to dismiss the appeal for lack of jurisdiction because appellant did not timely file her notice of appeal. The State also filed a motion for extension of time to file its brief pending our disposition of the motion to dismiss.
The judgment of forfeiture was signed July 29, 2016. Appellant timely filed a post judgment motion. Accordingly, the notice of appeal was due October 27, 2016, which is 90 days after the judgment was signed. See Tex. R. App. P. 26.1. Appellant, however, filed her notice of appeal on November 3, 2016, a date within 15 days of the due date for the notice of appeal.
A statutory proceeding for the forfeiture of personal property is an in rem proceeding, not against the owner but against the property itself. Though authorized by the Code of Criminal Procedure, it is a civil proceeding because it does not involve the conviction of the property's owner or possessor. State v. Rumfolo, 545 S.W.2d 752, 754 (Tex. 1976); Gambling Paraphernalia, Devices, Equipment & Proceeds v. State, 22 S.W.3d 625, 627 (Tex. App.—Dallas 2000).
A motion for extension of time to file a notice of appeal in a civil case is necessarily implied when the perfecting instrument is filed within 15 days of its due date. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Appellant has now filed a written motion for extension, explaining that her failure to file the notice of appeal timely was the result of calculation error and was not deliberate. See Tex. R. App. P. 26.3; 10.5(b).
Accordingly, we order as follows:
1. Appellant's motion for extension of time to file her notice of appeal is GRANTED.
2. The State's motion to dismiss is DENIED.
3. The State's motion for extension to file its brief is GRANTED until May 22, 2017. After that date, the court will not delay submission of the case awaiting the State's brief.
PER CURIAM