Fourth Court of Appeals

San Antonio, Texas

January 7, 2019

No. 04-18-00937-CV

Constant DERBEZ,

Appellant

v.

Ana Gabriela DERBEZ,

Appellee

From the 365th Judicial District Court, Maverick County, Texas

Trial Court No. 16-08-33337-MCVAJA

Honorable Amado J. Abascal, III, Judge Presiding

O R D E R

The trial court signed a final judgment on October 29, 2018. Because appellant did not 

file a motion for new trial, motion to modify the judgment, motion for reinstatement, or request 

for findings of fact and conclusions of law, the notice of appeal was due to be filed on November 

28, 2018. See TEX. R. APP. P. 26.1(a). However, the notice of appeal was not filed until 

November 30, 2018. A motion for extension of time to file the notice of appeal was due on 

December 13, 2018. See id. R. 26.3. Appellant timely filed in this court on December 10, 2018, 

a motion for extension of time to file the notice of appeal pursuant to Rule 26.3. See id. 

When, as here, a notice of appeal is untimely filed, but a motion for extension of time is 

timely filed in accordance with Rule 26.3, the appellant must offer a reasonable explanation for 

failing to file the notice of appeal in a timely manner. See Verburgt v. Dorner, 959 S.W.2d 615, 

615 (Tex. 1997). “[A]ny plausible statement of circumstances indicating that failure to file ... 

was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance, will

be accepted as a reasonable explanation.” Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 

(Tex. 1989); see Hone v. Hanafin, 104 S.W.3d 884, 886–87 (Tex. 2003); Dimotsis v. State Farm 

Lloyds, 966 S.W.2d 657, 657 (Tex. App.—San Antonio 1998, no pet.). Any conduct short of 

deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance, even if 

that conduct can also be characterized as professional negligence. Garcia, 774 S.W.2d at 670; 

Hone, 104 S.W.3d at 886–87; Dimotsis, 966 S.W.2d at 657. 

In the motion for extension of time, counsel for appellant, who had been hired for 

purposes of appeal, states she failed to timely file the notice of appeal because she was orally 
advised by the Maverick County District Clerk’s office that the final judgment was signed on 

November 1, 2018. Based on that information, she calendared the due date for the notice of 

appeal as November 30, 2018, as December 1, 2018 fell on a Saturday. When she subsequently 

obtained a copy of the judgment decree, she noted that the first page of the judgment stated it 

was “filed at 11/01/2018 at 12:00 a.m.,” which was in accord with the information received from 

the district clerk. Counsel filed the notice of appeal on November 30, 2018, based on the 

information from the clerk’s office and the notation on the first page of the judgment. Several 

days later, when counsel subsequently reviewed the entire judgment, she realized it had actually 

been signed on October 29, 2018, rendering her notice of appeal untimely by two days. Counsel 

then timely filed a motion to extend time to file the notice of appeal. After review, we find 

counsel’s explanation for the untimely filing to be reasonable. See Garcia, 774 S.W.2d at 670; 

Hone, 104 S.W.3d at 886–87; Dimotsis, 966 S.W.2d at 657. We therefore GRANT appellant’s

motion for extension of time to file the notice of appeal and ORDER this appeal retained on the 

court’s docket. 

We order the clerk of this court to serve a copy of this order on all counsel, the Maverick 

County District Clerk, and the court reporter.

_________________________________

Beth Watkins, Justice

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

court on this 7th day of January, 2019.

___________________________________

KEITH E. HOTTLE,

Clerk of Court