law-motion for extension of time to file notice of appeal | grace period to appeal | DWOJ-appeal | appeal
dismissed for want / lack of jurisdiction | failure to invoke appellate jurisdiction by timely filing notice of
appeal (NoA) | motion for extension of time to file notice of appeal | deadlines for appeals in Texas
TRAP 26.3. Extension of Time [to file notice of appeal and thus perfect
The appellate court may extend the time to file the notice
of appeal if, within 15 days after the deadline for filing the notice
of appeal, the party:
(a) files in the trial court the notice of appeal; and
(b) files in the appellate court a motion complying with Rule 10.5(b).
Notes and Comments
Comment to 1997 change: This is former Rule 41. All
times for perfecting appeal in civil cases — including the time
for perfecting a restricted appeal — are stated. An extension of
time is available for all appeals. The provisions of former Rule
41(c) regarding prematurely filed documents are moved to Rule
27. Nonsubstantive changes are made in the rule for criminal
RALPH O. DOUGLAS v. ELISE SELMA DOUGLAS; from Harris County;
14th district (14-08-00277-CV, ___ SW3d ___, 03-26-09)(dismissal)(untimely 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, 617-18
(Tex. 1997) (construing the predecessor to Rule 26). However, the appellant must offer a reasonable
explanation for failing to file the notice of appeal in a timely manner. See Tex. R. App. P. 26.3, 10.5(b)(1)
(C); Verburgt, 959 S.W.2d at 617-18. Appellant's notice of appeal was not filed within the fifteen-day
period provided by Rule 26.3
ROBERT D. HENTNIK v. DIANE E. HENTNIK; from Gillespie County; 4th district (04-08-00868-CV, ___
SW3d ___, 02-11-09)(missed deadline for filing of notice of appeal and 15-day grace period for motion
to extend time to file notice of appeal, appeal dismissed for want of jurisdiction DWOJ)
The trial court signed a final judgment on August 5, 2008. Appellant timely filed a motion for new trial on
September 3, 2008. Therefore, the notice of appeal was due to be filed on November 3, 2008, ninety
days after the date the judgment was signed. See Tex. R. App. P. 26.1(a). A motion for extension of time
to file the notice of appeal was due on November 18, 2008, fifteen days after the deadline for filing
notice of appeal. See Tex. R. App. P. 26.3. Appellant filed his notice of appeal, and a motion for
extension of time to file the notice of appeal, on November 25, 2008, after the fifteen-day grace period
allowed by Rule 26.3. Tex. R. App. P. 26.3.
On December 2, 2008, appellee filed a motion to dismiss this appeal for want of jurisdiction. On January
7, 2009, after the clerk's record had been filed, we ordered appellant to show cause in writing why this
appeal should not be dismissed for lack of jurisdiction. Appellant responds that he erroneously
believed the appellate deadline for perfecting appeal ran from the date his motion for new trial was
denied on October 23, 2008. Appellant also states that the trial court told him at the hearing on the
motion for new trial, held on October 17, 2008, that "your time table on your appellate process begins to
run today." Explaining that his failure to timely file a notice of appeal was neither intentional or
deliberate, he asks that we allow him to continue with his appeal. We have no jurisdiction, however, to
grant his request.
Once the period for granting a motion for extension of time under Rule 26.3 has passed, a party can no
longer invoke the appellate court's jurisdiction. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.
1997) (construing the predecessor to Rule 26); In re Estate of Padilla, 103 S.W.3d 563, 567 (Tex. App.--
San Antonio 2003, no pet.). Accordingly, we: grant appellee's motion to dismiss; deny appellant's
motion to extend the time to file the notice of appeal; and dismiss the appeal for lack of
jurisdiction. See Tex. R. App. P. 42.3(a).
Costs of appeal are taxed against appellant.
08‑0744 IN THE INTEREST OF E.E.C., S.M.C., AND V.C.; from Harris County; 14th district (14-08-
00167-CV, ___ SW3d ___, 07‑24‑08)
motion to dismiss petition for review dismissed as moot
motion to strike and/or deny petitioner's affidavit of indigence dismissed as moot
This appeal is from a judgment signed January 22, 2008. No clerk's record has been filed. The clerk
responsible for preparing the record in this appeal informed the court appellant did not make
arrangements to pay for the record.
Appellant's affidavit of indigence had to be filed with or before the notice of appeal unless a proper
motion for extension was filed in the appellate court within 15 days after the deadline. The notice
of appeal was filed on February 21, 2008. Appellant did not file an affidavit of indigence until May 30,
2008. Thus, the affidavit of indigence was not timely filed.
Because appellant has not provided this court with proof of payment for the record, we order the appeal