Opinion
No. 04-15-00674-CV
12-28-2015
Edgar MARKWARDT, Appellant v. CITY OF SAN ANTONIO, Appellee
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2015-CI-11416
Peter Sakai, Judge Presiding
ORDER
Appellant appeals an order granting a plea to the jurisdiction signed on July 16, 2015. Appellant timely filed a motion that extended the time for perfecting an appeal. See TEX. R. CIV. P. 329b(g); TEX. R. APP. P. 26.1(a). Thus, the notice of appeal was due October 14, 2015, or a motion for extension of time to file the notice of appeal was due fifteen days later on October 29, 2015. See TEX. R. APP. P. 26.1, 26.3. The record contains a notice of appeal file stamped October 29, 2015. The notice of appeal contains a certificate of service stating the notice of appeal was served on appellee on October 29, 2015; however, it does not state the date or manner of filing. Appellant did not file a motion for extension of time to file the notice of appeal.
A notice of appeal may appear to be late if filed by mail pursuant to Rule 9.2(b), TEX. R. APP. P. See, e.g., Lofton v. Allstate Ins. Co., 895 S.W.2d 693 (Tex. 1995). Additionally, 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 (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).
We therefore ORDER that appellant file, on or before January 7 , 2016 , a response establishing that the notice of appeal was timely filed by mail or offering a reasonable explanation for failing to file the notice of appeal timely. If appellant fails to satisfactorily respond within the time provided, the appeal will be dismissed. See TEX. R. APP. P. 42.3(c). If a supplemental clerk's record is required, appellant must ask the trial court clerk to prepare one and must notify the clerk of this court that such a request was made. All deadlines in this matter are suspended until further order of the court.
Additionally, on December 21, 2015, we ordered the court reporter, Rhonda Hogan, to file the reporter's record on or before January 5, 2016. On December 23, 2015, Ms. Hogan filed a notification of late record stating she spoke to appellant's counsel and counsel requested a record for a hearing held on September 23, 2015. According to Ms. Hogan, the requested record was transcribed by someone other than herself. On December 28, 2015, this Court contacted Teri Thomas Nunley, the court reporter for the September 23, 2015 hearing, regarding this matter. On that same day, Ms. Nunley filed a notification of late record stating the record was not filed because appellant has not paid or made arrangements to pay the reporter's fee to prepare the record and appellant is not entitled to the record without paying the fee. See TEX. R. APP. P. 34.6(b), 35.3(b).
We therefore ORDER appellant to also provide written proof to this court on or before January 7 , 2016 that either (1) the reporter's fee has been paid or arrangements satisfactory to the reporter have been made to pay the reporter's fee, or (2) appellant is entitled to the record without prepayment of the reporter's fee. See id. R. 35.3(b). If appellant fails to respond within the time provided and this appeal is not dismissed for reasons set forth above, the court will only consider those issues or points raised in appellant's brief that do not require a reporter's record for a decision. See id. R. 37.3(c).
We order the clerk of this court to serve a copy of this order on all counsel, Teri Thomas Nunley, the court reporter, and the trial court.
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 28th day of December, 2015.
/s/_________
Keith E. Hottle
Clerk of Court