Opinion
No. 04-14-00497-CV
10-30-2014
David C. GOAD, Appellant v. THE COUNTY OF GUADALUPE, Texas, Appellee
From the 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 12-1923-CV
William Old, Judge Presiding
ORDER
Appellant appeals a judgment signed June 2, 2014. Appellant did not file a timely motion that would have extended the appellate timetable. See TEX. R. CIV. P. 329b(g); TEX. R. APP. P. 26.1(a). Thus, the notice of appeal was due July 2, 2014, or a motion for extension of time to file the notice of appeal was due fifteen days later on July 17, 2014. See TEX. R. APP. P. 26.1, 26.3. Appellant did not file a timely notice of appeal or a motion for extension of time to file the notice of appeal. However, on July 7, 2014, appellant filed a notice of appeal.
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, 615 (Tex. 1997). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal timely. See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C); see also Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989).
A notice of appeal may appear to be late filed if placed in the mail according to TEX. R. APP. P. 9.2(b). See, e.g., Molina v. Kelco Tool & Die, Inc., 904 S.W.2d 857, 860 (Tex. App.—Houston [1st Dist.] 1995, writ denied). To take advantage of the mailbox rule found in Rule 9.2(b) of the Texas Rules of Appellate Procedure, the notice of appeal must be sent to the proper clerk and deposited in the mail on or before the last day of filing. See TEX. R. APP. P. 9.2(b). Thus, to fall within Rule 9.2, appellant was required to place his notice of appeal in the mail on or before July 2, 2014. See id. The envelope which appellant used to mail his notice of appeal to the clerk is in the clerk's record and proves the notice of appeal was placed in the mail July 5, 2014, after the July 2, 2014 due date. Accordingly, appellant is not entitled to the benefit of the mailbox rule. See id.
We therefore ORDER appellant to file in this court, on or before November 10, 2014, a written response offering a reasonable explanation for failing to file the notice of appeal timely or establishing that the notice was timely filed. If appellant fails to satisfactorily respond within the time provided, the appeal will be dismissed. See TEX. R. APP. P. 42.3(a), (c). All deadlines in this matter are suspended until further order of the court.
We order the clerk of this court to serve a copy of this order on appellant and all counsel.
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 30th day of October, 2014.
/s/_________
Keith E. Hottle
Clerk of Court