COURT OF APPEALS FOR THE

FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER ON MOTION TO EXTEND TIME

Appellate case name: Robert J. Salazar and Elia Salazar v. HP Texas I LLC d/b/a HP 

Texas LLC, HPA Texas Sub 2016-1 LLC, Ser Texas LLC, and 

Pathlight Property Management Co.

Appellate case numbers: 01-19-00926-CV

Trial court case number: 2019-17589

Trial court: 127th District Court of Harris County

Appellants Robert J. Salazar and Elia Salazar have filed an unopposed motion to 

extend time to file a motion for en banc reconsideration. See TEX. R. APP. P. 49.9. The 

Court’s memorandum opinion and judgment issued on July 8, 2021. Appellants filed two 

timely motions to extend time to file a motion for rehearing, which the Court granted. 

Appellants then filed a timely motion for rehearing, which the Court denied on November 

2, 2021. On November 8, 2021, appellants filed the motion to extend time to file a motion 

for en banc reconsideration.

At the time the judgment issued in this appeal, a party could file a motion for en 

banc reconsideration either within 15 days after a judgment issues or, when permitted, 

within 15 days after the Court denies the party’s last timely filed motion for rehearing or 

for en banc reconsideration. FORMER TEX. R. APP. P. 49.7. After judgment issued in this 

appeal but before appellants filed their motion for rehearing, the Texas Supreme Court and 

the Texas Court of Criminal Appeals issued a joint order amending the Texas Rules of 

Appellate Procedure to clarify, in part, that a “motion for en banc reconsideration must be 

filed by the deadline for filing an initial motion for rehearing under subdivision 49.1.” See 

Final Approval of Amendments to Texas Rules of Appellate Procedure, Misc. Docket 21-

9110, at 10 (Tex. Sept. 13, 2021); Final Approval of Amendments to Texas Rules of 

Appellate Procedure, Misc. Docket 21-003 (Tex. Crim. App. Sept. 13, 2021). This joint 

order specifies that the amended rules are effective as of October 1, 2021, but it does not 

state whether the amended rules apply to all appeals or only to appeals filed after (or in 

which judgment issued after) the effective date of October 1.
As of October 1, 2021, Texas Rule of Appellate Procedure 49.5 requires a party to 

file a motion for en banc reconsideration within the time for filing a motion for rehearing 

under Rule 49.1, that is, within 15 days after the court of appeals renders judgment. TEX.

R. APP. P. 49.5; see TEX. R. APP. P. 49.1. Amended Rule 49.5 no longer allows a party to 

file a motion for en banc reconsideration within 15 days after the Court denies the party’s 

last timely filed motion for rehearing or for en banc reconsideration. TEX. R. APP. P. 49.5.

The rule for motions to extend time (Rule 49.8) was renumbered to Rule 49.9, but the 

language was not amended. Nevertheless, the effect of the amendments to Rule 49.9 means 

that motions to extend time to file motions for en banc reconsideration must be filed much 

earlier than before the amendments.

In this case, Rule 49 was amended after judgment issued in this appeal but before 

appellants filed their motion for rehearing. If the former rules apply, appellants’ motion to 

extend time and any subsequent motion for en banc reconsideration would be timely

because the deadline runs either from the date the judgment issued or the date the Court 

overruled appellants’ motion for rehearing. See FORMER TEX. R. APP. P. 49.7 If, however, 

the amended rules apply, these motions would be untimely because the deadline runs only 

from the date judgment issued. See TEX. R. APP. P. 49.5.

In this unique scenario, we conclude that former Rule 49.7 governs appellants’ 

motion for en banc reconsideration and, in effect, their motion to extend time to file the 

motion for en banc reconsideration. See Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 

1997) (“This Court has never wavered from the principle that appellate courts should not 

dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules 

of Appellate Procedure would preserve the appeal.”). The Court’s plenary power is 

governed by Rule 19, which provides us with jurisdiction over this appeal for thirty days 

after overruling appellants’ motion for rehearing, or until December 8, 2021. TEX. R. APP.

P. 19.1(b). On our own initiative, the Court may for good cause suspend a rule’s operation 

in a particular case and order a different procedure. TEX. R. APP. P. 2. Because appellants 

followed the rules in effect at the time judgment issued in this appeal and because the 

opposite conclusion would unfairly deprive appellants of an opportunity to file a motion 

for en banc reconsideration, we find good cause exists to suspend operation of Rule 49.5, 

as amended effective October 1, 2021, in this appeal.

Accordingly, the Court grants appellants’ motion to extend time to file a motion for 

en banc reconsideration. Appellants shall file any motion for en banc reconsideration no 

later than December 17, 2021.

NO FURTHER EXTENSIONS WILL BE GRANTED ABSENT 

EXTRAORDINARY CIRCUMSTANCES.
It is so ORDERED.

Judge’s signature: /s/ April L. Farris

  Acting individually  Acting for the Court

Date: November 23, 2021