Opinion
No. 04-15-00548-CV
10-05-2015
Rufina Reyes YANEZ, Appellant v. AMERICAN GENERAL LIFE INSURANCE COMPANY, Appellee
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2014CVF000504-D3
Honorable Rebecca Ramirez Palomo, Judge Presiding
ORDER
On September 16, 2015, appellee filed a motion to dismiss arguing appellant's notice of appeal was filed impermissibly late pursuant to Texas Rule of Appellate Procedure 26(a)(1), and appellant failed to file a timely motion for extension of time.
Appellant failed to file a reply to appellee's motion to dismiss, but did file a motion to abate the appeal. This Court may not abate an appeal if the notice of appeal was filed late. Further, appellant has failed to pay the filing fee.
Appellant filed a notice of appeal on September 3, 2015 and a motion for extension of time on the same date. The trial court's judgment was signed on July 20, 2015. It thus appears that neither document was filed within the time allowed for filing a motion for extension of time to file the 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, 617 (Tex.1997) (construing the predecessor to Rule 26). However, once the period for granting a motion for extension of time has passed, a party can no longer invoke the appellate court's jurisdiction. Id.
It is therefore ORDERED that appellant show cause in writing within fifteen days from the date of this order why this appeal should not be dismissed for lack of jurisdiction. It is further ORDERED that appellant to show cause in writing within fifteen days from the date of this order that either: (1) the filing fee has been paid; or (2) appellant is entitled to appeal without paying the filing fee.
If appellant fails to respond within the time provided, the appeal will be dismissed for want of prosecution or for failure to pay the filing fee. See TEX. R. APP. P. 5, 42.3(c). The briefing schedule is suspended pending determination whether this Court holds jurisdiction over this appeal.
/s/_________
Jason Pulliam, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 5th day of October, 2015.
/s/_________
Keith E. Hottle
Clerk of Court