Opinion
Appellate case number: 01-15-00599-CV
11-03-2015
Billy Joe Henderson v. Iowa Colony, Iowa Colony Police Department.
ORDER Trial court case number: 320200239 Trial court: 239th District Court of Brazoria County, Texas
Appellee, Iowa Colony, Iowa Police Department, filed a motion to dismiss on August 31, 2015. Iowa argues that Henderson's notice of appeal, filed 43 days after the trial court signed the judgment, was untimely. See TEX. R. APP. P. 26.1(b). Iowa further argues that Henderson did not file a motion to extend the time to file his notice of appeal within fifteen days after the deadline for filing his notice of appeal. See TEX. R. APP. P. 26.3. Iowa also argues that Henderson did not pay the appellate filing fee. See TEX. R. APP. P. 5. We deny the motion.
Generally speaking, a party wishing to file an appeal must file a notice of appeal within 30 days after the trial court signs the judgment. See TEX. R. APP. P. 26.1. A party may obtain additional time to file a notice of appeal if, within fifteen days after the deadline to file the notice of appeal, the party properly files the notice of appeal and a motion for extension of time. See TEX. R. APP. P. 26.3. Courts imply a motion for extension of time 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 extension period provided by rule 26.3. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). The appellant must, however, offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See TEX. R. APP. P. 10.5(b)(1)(C), 26.3; Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998).
The record reflects that the trial court signed the final judgment on May 27, 2015. Henderson's notice of appeal was therefore due on June 26, 2015. Henderson filed his notice of appeal on July 8, 2015. Henderson thus filed his notice of appeal after the thirty-day deadline but within the fifteen-day extension period. Within Henderson's notice of appeal, Henderson provided a reasonable explanation for failing to timely file his notice of appeal, stating that he did not have notice of the May 27, 2015 judgment until June 23, 2015. Accordingly, we imply a motion for extension, and Henderson's notice of appeal was timely filed within the fifteen-day extension period. Finally, our records show that the Henderson paid the filing fee on July 29, 2015.
Accordingly, we DENY Iowa's motion to dismiss Henderson's notice of appeal.
It is so ORDERED. Judge's signature:/s/ Chief Justice Sherry Radack
[×] Acting individually [ ] Acting for the Court
Date: November 3, 2015