Opinion
NO. 14-16-00334-CV
05-15-2017
IN THE INTEREST OF C.D.P., A MINOR CHILD, Appellant
On Appeal from the 245th District Court Harris County, Texas
Trial Court Cause No. 2008-19287
ORDER
In this case, Joshua Perkins is attempting to appeal from the "Order in Suit to Modify Parent-Child Relationship," signed by the trial court on January 19, 2016. On April 19, 2016, Perkins filed a "Notice of Restricted Appeal," in which he stated that he desires to appeal all portions of the trial court's January 19, 2016 order. Texas Rule of Appellate Procedure 30 does not allow a party who timely filed a postjudgment motion to pursue a restricted appeal. See Tex. R. App. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Because Perkins timely filed a motion for new trial, this court lacks jurisdiction over this appeal to the extent Perkins seeks to prosecute a restricted appeal from the trial court's order. See Tex. R. App. P. 30; Seymour v. Seymour, No. 14-07-00280-CV, 2009 WL 442259, at *2 (Tex. App.—Houston [14th Dist.] Feb. 10, 2009, pet. denied) (mem. op.).
A court of appeals has jurisdiction over any appeal in which the appellant files an instrument in a bona fide attempt to invoke the appellate court's jurisdiction. See Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). Appellate courts are to construe the Texas Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule. See id. Under this standard of review, we construe Perkins's notice of appeal as an instrument seeking to perfect a regular appeal as well as a restricted appeal.
For a regular appeal from the January 19, 2016 order, the notice of appeal was due on April 18, 2016, because Perkins timely filed a motion for new trial. See Tex. R. App. P. 26.1. Appellant did not file his notice of appeal until April 19, 2016, a date that falls within fifteen days of the due date for the notice of appeal. A motion for extension of time is necessarily implied when the perfecting instrument is filed within fifteen days of its due date. Verburgt, 959 S.W.2d at 617. But, appellant has not filed a motion to extend time to file the notice of appeal. Though a request for extension may be implied, appellant nonetheless must come forward with a reasonable explanation to support the late filing. See Miller v. Greenpark Surgery Ctr. Assocs., Ltd., 974 S.W.2d 805, 808 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Accordingly, we ORDER appellant to file a motion to extend time to file the notice of appeal within ten days of the date of this order. See Tex. R. App. P. 26.3; 10.5(b). If appellant fails to comply with this order, we will dismiss the appeal. See Tex. R. App. P. 42.3.
PER CURIAM Panel consists of Chief Justice Frost and Justices Donovan and Wise.