### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 20
- 00445
- CV

Roberta Porch, Individually and as Surviving Spouse and heir to the Estate of Reginald Porch, Appellant

v. Daimler Trucks North America, LLC, d/b/a Freightliner Truck, Appellee

F ROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- GN
- 14
- 005360, THE HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Appellant Roberta Porch see k s to appeal a final judgment signed by the trial court on May 11, 20 2 0. Beca use Porch timely filed a motion for n ew trial , the deadl ine for her to
per fect her appeal by fi ling a notice of appeal in this Court was A ugust 10 , 2020. See Tex. R. App. P. 26.1(a) ( providing that notice of appeal mus t be fil ed wi thin 90 days aft er judgment is signed when party timely file s motion for new trial )

. Porch did not file her notice of appeal until September 4, 2020.

Recognizing that h er notice of appeal appear s t o be u ntimely, Porch has no w filed
a motion requesting that we ext end th e deadline for filing her notice of appeal b y 2 6 days, until September 4

. The motion is opposed by the appellee , Daimler Truck s N o rth America , LLC, wh o
po int s out tha t under the rules of appellate procedure, the deadli ne for Porch to fil e a motion f or
ext ension of time was A ugust 2 5 , 2020 , a nd t ha t she d id not file her motion for extension of tim e2

u ntil September 14, 20 20

. See Tex. R. App. P. 26. 3 ( not i c e
- of

- appeal deadline may be extended if, within 15 days after deadline, appellant file s notice of appea l in trial court and file s prop er

m ot i on for extensi on of time i n appellate court)

. In addition, because Porch did not file her notice of appeal un til aft er August 2 5 , the notice of appeal itself cannot serve as an implied
motion fo r ex tension of ti me. S ee Verburgt v. Dorner , 959 S.W.2d 615 ( T ex. 1997 ) ( explaining
that motion for extension of time under R ule 26.3 is implied when notice of appeal is file d w i thin
15

- day extension period ).

In re sponse, Porch do es not dispu te that her motion for exte nsion of time is

u ntimely under the ru le s of appel lat e p rocedure. Instead, Porch argues that independent of the
rules of appellate pr oce dure , the Texas Su preme Cou rt h as granted a ppellate courts the authority
to extend appellate deadlines, including the f iling of a notice of appeal

. In support of this
argume n t, Porch reli es on the Texas Supreme Court ’ s Twenty

- Second Emergency O rder R egardi ng the C OVID

- 19 State of Dis a ster , M isc. Docket N o. 20

- 90 95 ( Tex. Augus t 6, 2 020 ) (available at https://www.t x courts.gov/supreme/administrative

- orders ) (exten ding expiration of prior relevant orders to Septe mber 30 , 20 20)

. That e mergency o rde r provide s , in relevant part, t hat :

1. Governor Abbott has decl ared a state of disaster in all 254 counties in the State of T e xas in response to the imminent threat of the COVID

- 19 pandemic. This order is issued pursuant to Secti on 2 2.0 035(b) of the Texas Government Code.
2. Subject only to const i tu tiona l limitations, a ll cour ts in Texas may in any case , civil or c riminal

— and mus t to avoid risk to court staff, par ties, attorneys, jurors, and the public

— without a participa nt ’ s c onsent :

a. M o dif

y or suspend any and all de adline s and procedures , whether prescribed by statute, rule, o r order, for a stated period ending n o later than 30 d a y s after the Govern or ’ s state of disaster has been lif

ted

. . . .3

I d. ( emphasis added). Unlike the prior COVI D

- 19

- relat ed e mergency order s i ssued by the Texas
S uprem e Court, th e Twenty

- Second Emergen cy O r de r does not include or inco r porate language automatically extending “ a n y deadline for the f iling of ” civil cases but excluding “ d eadline s for perfecting appeal or for ot he r ap p ella te proceedings , re quests for relief from which should be
direct ed to t he court involved and should be g ener ously granted. ” See , e.g. , Ei g h teen th Em ergency Order Re garding t h e COVID

- 19 S tate of Disaster , Mis c. Docket No. 20

- 9080 ( Tex. June 29 , 2020) ( a vai l able at https://www.txcourts.gov/supreme/administrative

- orders )

.

Ass uming without de ciding that the Twenty

- Second E m ergency O rder g rants this
Court the discretion to ext end a ppellate deadl ine s , as Porch suggest s, we de cline to exercise our d iscre tion to do so in this case

. See Jones v. White , No. 02

- 20

- 00198

- CV, 2020 Te x . App. LEXIS 7716, at *2 (Tex. App.

— Fort Worth Sept. 24, 2020, no pet. h.) ( concl uding that T wenty

S e cond E mergency O rder g iv es a p pellate court s discretion to modify or suspend a p pellate
deadline s ). In her m otion for extension of time, Porch explains tha t she did not file her notice
of app eal until September 4 because “ [her] counsel has be e n f ace d with working under t he

res tric tions imposed by the state, county, and city orders re lated t o the current public h ealth
crisis. In a ddition, . . . th ere was a d e lay in [Daim ler Truck ’ s] receiving the trial transcript from the court reporter, w her e by del a ying [its] ab ility to respo n d t o the motion for new trial and therefore, th e hearing on the m o t i on for new tri al occ urred after the date to perfect appeal. ” Similarly , i n her reply to Daimle r T ruck ’ s re sponse to her motion , Porch ar gues that CO V ID

- 19
has “ great ly affe cted ” ap pe llan t ’ s counsel , including “ restrictive office hours , a reduct ion in st aff , and a reduc tion o f personnel availab le to work on all lega l matters for all clients. ” Based on
Porch ’ s stated reasons for her delay , we cannot co n clude that her failure to timel y file her notice of appeal or her motion for extension of time is due to the COVID

- 19 pub li c
- heal th crisis

. See4

id

. ( “ [ T] he fac t of the pandemic , standing alone, is not a reasonable explanation for a missed appellate deadline

. ” )

.

Porch ’ s motion for ext en sion of time to file her notice of appeal is denied.
B ecause a late

- fil ed notice of app ea l does not con fer jurisdiction on thi s C ourt, we dismiss the appeal for want of jurisdiction

. See In re United Servs. Auto Ass ’ n , 307 S.W. 3d 299 , 307 (Tex.
2010 ) ( o rig. proceedin g) (explaining that requirement of timely notice of appeal is juris dic tional).

____________________ ______________________ Chari L . Kelly , Justice
Before Chief Justice Rose, Justices Ba ker and Kel ly
Di smi ssed for Want of Jurisdiction
F iled: Dec ember 3 , 2020