/s



# Fourth Court of Appeals

**San Antonio, Texas**

March 13, 2014

N o. 04

- 13

- 00148

- CV

Javier H. PEREZ

, Appellant

v

.

Patricia VILLARREAL and Israel Villarreal, Appellee

From the 111th Judicial District Court, Webb County, Texas

Trial Court No. 2011

- CVT

- 000406

- D2 Honorable Monica Z. Notzon, Judge Presiding



### ORDER

Appellees have filed a motion to dismiss the appeal for want of jurisdiction. Appellees contend the notice of appeal is untimely. We disagree.

Appellant is appealing a judgment signed January 23, 2013. Appellant did not file a timely motion that would have extended the appellate timetable. See T EX

. R. C IV

. P. 329b(g);

T EX

. R. A PP

. P. 26.1(a). Thus, the notice of appeal was due February 22, 2013 , or a motion for extension of time to file the notice of appeal was due fifteen days later on March 11, 2013

. See

T EX

. R. A PP

. P. 26.1, 26.3. Appellant did not file a timely notice of appeal or a motion for extension of time to file the notice of appeal. However, on February 28

, 2013, appellant filed a notice of appeal , which was mailed on February 23, 2014

— one day after the deadline

.

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, 615 ( Tex. 1997). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal timely. See id. ; T EX

. R. A PP

. P. 26.3, 10.5(b)(1)(C); see also Garcia v. Kastner Farms, Inc. , 774 S.W.2d 668, 670 (Tex. 1989). Accordingly, on April 9, 2013, we ordered appellant to file a response offering a reasonable explanation for failing to file the notice of appeal timely or establishing that the notice was timely filed. We advised appellant that if he failed to satisfactorily respond within the time provided, the appeal would be dismissed. See T EX

. R. A PP

. P. 42.3(a), (c).On April 22, 2013, appellant filed a response to this court’s Verburgt order. In the response, appellant stated he failed to timely file the notice of appeal because he did not learn of the January 23, 2013 judgment until his daughter informed him about it o n February 22, 2013. He filed the notice of appeal the next day. By order dated April 24, 2013, we stated that the explanation provided by appellant was reasonable, and ordered the appeal retained on the docket.

Based on the foregoing, we find appelle es are incorrect in their assertion that we lack jurisdiction over the appeal. Although appellant’s notice of appeal was mailed one day late, it

was filed within the fifteen

– day grace period provided by Rule 26.1(c), and appellant provided

this court with a reasonable explanation for the late filing as required by the supreme court’s

decision in Verburgt . According ly , we DENY appellees’ motion to dismiss the appeal for want of jurisdiction.

The clerk of this court is ordered to send a copy of this ord er to appellant , who is pro se,

and all counsel.

_________________________________ Marialyn Barnard, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said

court on this 13th day of March, 2014

.

___________________________________ Keith E. Hottle

Clerk of Court