Via Metropolitan /s

Fourth Court of Appeals

San Antonio, Texas

October 23, 2013

No. 04-13-00549-CV

Ernest MUNGIA,

Appellant

v.

VIA METROPOLITAN TRANSIT,

Appellee

From the County Court at Law No. 3, Bexar County, Texas

Trial Court No. 380931

Honorable Irene Rios, Judge Presiding

O R D E R

We issued an order requiring appellant to show why this appeal should not be dismissed 

because the trial court’s order setting aside a default judgment was interlocutory and 

unappealable. Both appellant, Ernest Mungia, and appellee, Via Metropolitan Transit, filed 

responses to our order. In addition, appellee moved to dismiss on the ground the appeal was not 

timely filed. 

Having reviewed the parties’ responses and the record, we conclude that the trial court’s 

Order Granting Via Metropolitan Transit’s Motion for Summary Judgment granted full relief on 

appellee’s cause of action for declaratory judgment, and is a final and appealable judgment.

Via Metropolitan Transit asserts this court nevertheless does not have jurisdiction over 

this appeal because it was not timely filed. The judgment was signed April 23, 2013. Mungia 

timely filed a motion that extended the time for perfecting an appeal. See Tex. R. Civ. P. 

329b(g); Tex. R. App. P. 26.1(a). Thus, the notice of appeal was due July 22, 2013, or a motion 

for extension of time to file the notice of appeal was due fifteen days later on August 6, 2013. 

See Tex. R. App. P. 26.1, 26.3. The record contains a notice of appeal marked as filed in the 

Bexar County Clerk’s Office on July 24, 2013. Mungia did not file a motion for extension of 

time to file the notice of appeal. 

Via Metropolitan Transit’s motion to dismiss acknowledges that the notice of appeal 

contains a certificate of service dated July 18, 2013, that the notice of appeal was received in its 

counsel’s office by facsimile transmission on July 18, 2013, and that Mungia’s cover letter to the 
Bexar County Clerk’s Office is dated July 18, 2013. In addition, Via Metropolitan attaches to its 

motion a letter from Mungia’s attorney in which he advises Via Metropolitan Transit that he 

personally placed the original notice of appeal in the mail to the clerk on July 18, 2013. 

Nevertheless, Via Metropolitan Transit argues the notice of appeal was not timely filed and 

expresses disbelief that it could take six days for a letter to be delivered by mail to the clerk’s 

office. Via Metropolitan Transit also relies on the affidavit of the Bexar County Clerk that states 

it is the policy and practice of the Clerk’s Office to retain the transmitting envelopes for any 

documents filed by mail in the official court file and that there is no transmittal envelope filed 

with the notice of appeal in this case. 

The sworn response filed by Mungia’s attorney establishes the notice of appeal was 

properly filed by mail on July 18, four days before it was due. See TEX. R. CIV. P. 5; TEX. R.

APP. P. 9.2(b); Lofton v. Allstate Ins. Co., 895 S.W.2d 693 (Tex. 1995). The Bexar County Clerk 

received the notice of appeal less than ten days after it was due. Accordingly, the notice was 

timely filed. See TEX. R. CIV. P. 5. 

Additionally, 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 (1997). We consider the facts asserted in Mungia’s 

sworn response to our show cause order to be a reasonable explanation for any untimely filing of 

the notice of appeal and we grant the implied motion for extension of time. 

We therefore deny Via Metropolitan Transit’s motion to dismiss and retain this appeal on 

the court’s docket. We reinstate the appellate deadlines and order appellant’s brief due 

November 25, 2013. 

_________________________________ 

Luz Elena D. Chapa, Justice 

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

court on this 23rd day of October, 2013. 

___________________________________ 

Keith E. Hottle 

Clerk of Court