Don’t Miss the Boat – Timing Your Appeal

   Not satisfied with the decision of a judge or jury?  Don’t wait.  Ordinarily, the failure to timely file a notice of appeal deprives the appellate court of subject-matter jurisdiction and likely will result in the dismissal of your appeal.  See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); Howlett v. Tarrant County, 301 S.W.3d 840, 843 (Tex. App.—Fort Worth 2009, pet. denied).  Texas Rule of Appellate Procedure 26.1 provides that in an ordinary appeal, a notice of appeal must be filed within 30 days after the judgment is signed.  Tex. R. App. P. 26.1.  This deadline can be extended to 90 days from the date the judgment is signed if a party timely files a motion for new trial, a motion to modify the judgment, a motion to reinstate, or a request for findings of fact and conclusions of law.  Id. at R. 26.1(a). 

  These timelines are shortened to twenty days for an accelerated appeal (usually involving interlocutory orders addressed in section 51.014 of the Texas Civil Practice and Remedies Code and appeals required by statute to be accelerated). Id. at R. 26.1(b). For restricted appeals, the deadline is within six months after the judgment or order is signed. Id. at R. 26.1(c).

   Did you miss your deadline to file a notice of appeal?  In certain circumstances, all is not lost.  There is an often-missed, possible solution.  Under Texas Rule of Appellate Procedure 26.3, the appellate court may extend the time to file the notice of appeal if, within fifteen days after the deadline for filing the notice of appeal, the party:  (1) files the notice of appeal in the trial court; and (2) files in the appellate court a motion for extension of time complying with Rule 10.5(b).  Id. at R. 26.3.  A motion for extension of time may be implied where appellant, acting in good faith, files a notice of appeal within fifteen days after the notice of appeal is due.  Verburgt, 959 S.W.2d at 617; see also Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998).  However, to take advantage of an implied motion for extension of time, Texas courts require that appellant provide a reasonable explanation for the late filing of the notice of appeal.  See Lockhart v. McCurley, 298 S.W.3d 449, 449 (Tex. App.—Waco 2009, order) (Gray, C.J., dissenting); see also Crawford v. Grateful Dev., LLC, No. 02-23-00417-CV, 2023 WL 8820270, at *1 (Tex. App.—Dallas Dec. 21, 2023, no pet.) (mem. op.); Washington v. Light House for the Homeless, No. 02-23-00415-CV, 2023 WL 8820352, at *1 (Tex. App.—Fort Worth Dec. 21, 2023, no pet.) (mem. op.); Griffin v. Galveston County, No. 01-23-00377-CV, 2023 WL 5353372, at *1 (Tex. App.—Houston [1st Dist.] Aug. 22, 2023, no pet.) (mem. op.).      

*Rick Bradley is a Haley & Olson, P.C. attorney board certified in Civil Appellate Law and has more than 16 years’ experience analyzing and navigating the complicated appellate process.