Opinion
NO. 14-17-00667-CV
05-02-2019
MARK RODRIGUEZ, VICTOR TREVINO III, AND THOMAS TREVINO, Appellants v. RICHARD "RICK" GONZALES, Appellee
On Appeal from the 129th District Court Harris County, Texas
Trial Court Cause No. 2016-87024
ORDER
On December 18, 2018, this court issued its opinion and judgment. Appellee Richard "Rick" Gonzales timely filed a motion for rehearing. This court denied the motion on February 7, 2019. No further motion having been filed in this court and nothing having been filed in the Supreme Court of Texas regarding this appeal, the court issued its mandate in this case on April 23, 2019.
A week later, on April 30, 2019, Gonzales filed in this court a "Motion to Reinstate." In this motion, Gonzales asserts the following:
• Chris Bell was Gonzales's lead attorney and was the only attorney that was listed by the Fourteenth Court of Appeals to be noticed that was actually involved with this case as of February 7, 2019.
• Bell never received electronic notice from the Fourteenth Court of Appeals about the order denying Gonzales's motion for rehearing.
• Bell was unable to timely file a petition for review.
• Bell did not know that the Fourteenth Court of Appeals had rendered a decision until appellants sent post-judgment discovery requests, which lead Bell to check the status of the case.
Without citing a procedural rule or a case, Gonzales asks this court to reinstate the case so that Gonzales may file a petition for review in the Supreme Court of Texas. Gonzales asks this court to "withdraw" its mandate and extend the deadline for Gonzales to file a petition for review in the Supreme Court of Texas. We give effect to the substance of Gonzales's motion rather than its title or form. See State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980). We conclude that the substance of the motion is a motion for additional time to file petition for review under Texas Rule of Appellate Procedure 4.5 and a motion to recall the mandate.
Though this court's plenary power over its judgment has expired, Gonzales does not seek to vacate or modify this court's judgment. See Tex. R. App. P. 19.1, 19.3. Instead, Gonzales moves for additional time to file a petition for review under Rule 4.5 and for a recall of the mandate, and a party may seek such relief after the court of appeals has lost plenary power over its judgment. See Tex. R. App. P. 4.5, 19.3(b).
Under Rule 4.5, a party may move for additional time to file a petition for review if the party did not—until after the time expired for filing a petition for review—either receive notice of the judgment or order from the court of appeals clerk or acquire actual knowledge of the rendition of the judgment or order. Tex. R. App. P. 4.5(a). The motion must state the earliest date when the party or the party's attorney received notice or acquired actual knowledge that the judgment or order had been rendered. Tex. R. App. P. 4.5(b). The motion must be filed within fifteen days of that date but in no event more than ninety days after the date of the judgment or order. Id. A motion for additional time to file a petition for review must be filed in and ruled on by the Supreme Court of Texas. Tex. R. App. P. 4.5(c)(2). If the Supreme Court of Texas finds that the motion for additional time was timely filed and the party did not—within the time for filing the petition for review—receive the notice or have actual knowledge of the judgment or order, the high court must grant the motion. Tex. R. App. P. 4.5(d). If the high court grants the motion, the time for filing the petition for review begins to run on the date when the court grants the motion. Id.
To the extent that the substance of Gonzales's motion is a motion for additional time to file a petition for review under Rule 4.5, that motion must be filed in and ruled on by the Supreme Court of Texas. Tex. R. App. P. 4.5(c)(2). The unambiguous language of Rule 4.5 requires the motion to be filed in the Supreme Court of Texas. Id. To the extent that the substance of Gonzales's motion is a motion for additional time to file a petition for review, the motion presents no ground upon which this court may grant relief, so we dismiss the motion. To the extent the substance of Gonzales's motion is a motion to recall this court's mandate, the motion is based on Gonzales's alleged entitlement to additional time to file petition for review. Because the Supreme Court of Texas has not decided whether Gonzales is entitled to additional time to file a petition for review, we dismiss the motion to recall the mandate as not ripe, without prejudice to Gonzales's ability to file a motion to recall if the high court grants Gonzales additional time to file a petition for review.
We do not make any comment as to whether Gonzales is entitled to additional time to file a petition for review.
PER CURIAM Panel consists of Chief Justice Frost and Justice Christopher.
Justice Jamison, who originally participated in the court's decision, is no longer sitting on this court.