In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-20-00034-CV

___________________________

On Appeal from the 431st District Court

Denton County, Texas

Trial Court No. 18-1841-431

Before Sudderth, C.J.; Kerr and Wallach, JJ.

Opinion and Order by Chief Justice Sudderth

DIANE CUMMINGS AND EVERETT CUMMINGS, Appellants

V.

HEIDI BILLMAN, CAROLE BILLMAN, AND BRADLEY BILLMAN, Appellees
2

OPINION AND ORDER

I. Introduction

This is an issue of first impression that arises under facts unique to the 

electronic filing system that was established to comply with the Texas Supreme 

Court’s Order Requiring Electronic Filing in Certain Courts, an order that mandates

electronic filing of documents in all civil cases filed in district courts in Texas. See

Supreme Court of Tex., Order Requiring Electronic Filing in Certain Courts, Misc. 

Docket No. 12-9206 (Tex. Dec. 11, 2012). We are asked to decide whether the timely 

transmittal of a motion to reinstate that is subsequently canceled by the sender before 

the clerk “files” it is sufficient to extend the appellate deadline for filing a notice of 

appeal under Texas Rule of Appellate Procedure 26.1(a). 

We hold that even if the cancellation of the efiling transaction worked to 

withdraw the motion to reinstate for purposes of extending the trial court’s plenary 

power, it did not affect the extension of the appellate deadline that the transmittal of 

the motion initially triggered. Consequently, the notice of appeal of Appellants Diane 

and Everett Cummings was due on January 9, 2020, and we may extend that deadline

because they provided a reasonable explanation for failing to file it by the January 9

due date in their motion for an extension of time to file their notice of appeal. See

Tex. R. App. P. 10.5(b), 26.3 (providing for up to a 15-day extension of time to file a

notice of appeal). We grant their motion, order the notice of appeal timely filed, and 

continue the appeal. 
3

II. Background

On November 11, 2019, thirty-one days after the trial court signed a final order 

dismissing this case for want of prosecution, Appellants timely submitted their motion 

to reinstate the case through eFileTexas.gov, the official electronic filing system for 

Texas courts.

1

 See Tex. R. Civ. P. 165a. According to the electronic filing records, 

however, three days after the motion was filed, the filing was “canceled” by 

Appellants’ trial counsel. In the interim, the Denton County District Clerk never 

officially “filed” the motion to reinstate.

Appellants electronically filed a second motion to reinstate on December 4,

which was marked as “filed” by the district clerk at 4:04 p.m. that same day.

2

 On 

January 22, 2020, the 103rd day after the final order was signed, Appellants filed their 

notice of appeal. 

1Although a motion to reinstate ordinarily must be filed within 30 days of the 

final order to be considered timely, Appellants’ motion was timely submitted on the 

31st day because the 30th day fell on Veteran’s Day, a state holiday. See Tex. R. Civ. 

P. 4 (providing that if the due date falls on a Saturday, Sunday, or legal holiday, the 

due date is extended to “the end of the next day which is not a Saturday, Sunday, or 

legal holiday”). 

2Because the document transmitted on November 11 was never filed by the 

district clerk, we have no record of its contents. However, Appellants contend—and 

for purposes of this appeal we accept as true—that the motion transmitted on

November 11, 2019, was “the same, identical motion” as the one filed on December 

4, 2019. 
4

III. Discussion

A timely-filed notice of appeal is required in order to invoke the appellate 

court’s jurisdiction. Tex. R. App. P. 25.1(b), 26.1; Verburgt v. Dorner, 959 S.W.2d 615, 

617 (Tex. 1997); Nat’l Transmission v. Boltz, No. 02-09-00378-CV, 2009 WL 5064578, at 

*1 (Tex. App.—Fort Worth Dec. 23, 2009, no pet.) (per curiam) (mem. op.) (stating

that the deadline to file a notice of appeal is “mandatory and jurisdictional”). There is 

no question that Appellants’ original November 11 motion to reinstate was 

transmitted timely. See Tex. R. App. P. 26.1(a)(3). The question we must answer is 

what effect, if any, the cancellation of the November 11 efiling transaction has on the 

calculation of appellate deadlines. 

Appellants argue that the motion to reinstate transmitted on November 11 

operated to extend the due date for their notice of appeal to 90 days from the date the 

final order was signed. See id. (providing that a notice of appeal is due “within 90 days 

after the judgment is signed if any party timely files . . . a motion to reinstate”). If 

Appellants’ contention is correct, then their notice of appeal was due on January 9, 

2020, a deadline that could be extended to January 24 upon a reasonable explanation 

for its tardiness. See Tex. R. App. P. 10.5(b)(2), 26.3; Verburgt, 959 S.W.2d at 617. But 

if Appellants are mistaken, and the November 11 motion did not extend the due date 

for their notice of appeal, then their notice of appeal was due on November 11, a

deadline that could not be extended beyond November 26. See City of Lancaster v. Tex.
5

Nat. Res. Conservation Comm’n, 935 S.W.2d 226, 228 (Tex. App.—Austin 1996, writ 

denied). 

Citing Jamar v. Patterson to support their contention that the time to file the 

notice of appeal was extended, Appellants argue that on November 11, when they 

transmitted the motion to reinstate to eFileTexas, the motion was deemed filed on 

that day regardless of whether the district clerk stamped it as filed or not. 868 S.W.2d 

318, 319 (Tex. 1993) (holding that “the date of filing is when the document is first 

tendered to the clerk”). Jamar, having been decided long before electronic filing was 

envisioned, is not squarely on point with the facts here, although the underlying 

rationale expressed in the cases it cites is instructive as to the supreme court’s policy

that continues today “to construe rules reasonably but liberally, when possible, so that 

the right to appeal is not lost by creating a requirement not absolutely necessary from 

the literal words of the rule.” Id. More instructive, however, is Texas Rule of Civil 

Procedure 21(f)(5), which provides that “[a]n electronically filed document is deemed 

filed when transmitted to the filing party’s electronic filing service provider.” Tex. R. 

Civ. P. 21(f)(5). 

Rule 21(f)(5) is the electronic equivalent of the mailbox rule—that a document 

is considered filed when it is deposited into an official United States Postal Service

mailbox, not when the clerk receives it in the mail3—that used to apply to attorneys 

3Using the mailbox rule, a document is considered timely filed if: (1) it is 

mailed to the clerk on or before the last day it is due, and (2) it arrives at the clerk’s 
6

when they filed documents in the old-fashioned way and still applies to pro se parties 

who are exempt from the current electronic filing mandate. Rule 21(f)(5) provides 

that “[a]n electronically filed document is deemed filed when transmitted to the filing 

party’s electronic filing service provider.” Id. (emphasis added). Similar to the

mailbox rule, Rule 21(f)(5) provides that at the moment when Appellants’ counsel

transmitted the motion to reinstate through eFileTexas, that document was “deemed 

filed.” Id. Unlike the mailbox rule, Rule 21(f)(5) has no requirement that the clerk 

actually receive the document within any particular period of time. See id. And, under

the eFileTexas system, when a transaction is canceled prior to the clerk’s acceptance 

and official filing of a document, the document will be removed from the clerk’s 

intake portal. To analogize with the mailbox rule, the canceling of an electronic

transaction is the equivalent of a party reaching into the inbox on a clerk’s desk and 

retrieving an envelope that the clerk has received in the mail but has not yet 

processed.

4

office within ten days. See Tex. R. Civ. P. 5. The document must be sent by first-class 

mail in a properly addressed and stamped envelope, and the envelope must bear a 

United States Postal Service postmark, which is prima facie evidence of the date of 

mailing, or, barring that, an uncontroverted affidavit may be provided to establish the 

date of the mailing. Id.; Lofton v. Allstate Ins. Co., 895 S.W.2d 693, 693–94 (Tex. 1995)

(per curiam). 

4Although such practice would be unheard of in the context of hard copies and 

the mailbox rule, the eFileTexas system allows for this. And such a provision makes 

sense. In the instantaneous, click-of-a-button electronic filing world, it is all too easy 

to accidentally transmit the wrong file. When such an accident occurs, a filer should 

be afforded a limited opportunity to snap back the erroneously transmitted document 
7

Here, Appellants’ motion to reinstate was canceled three days after the 

document was transmitted and prior to the district clerk’s official processing and filestamping of the document. Appellants offer no explanation for why the transaction 

was canceled, except to suggest that the blame belongs with the district clerk.

5

 But

the record provided by the district clerk reveals that the cancellation occurred at the 

behest of Appellant’s counsel, or at least someone using his eFileTexas credentials:

before it officially becomes a part of public record. The question here is whether the 

invoking of the snap-back option nullifies the transaction for purposes of the timely 

filing of a notice of appeal under the Texas Rules of Appellate Procedure.

5

In their Notice of Timely Filing of Motion for Reinstatement filed in the trial 

court, Appellants state, “For reasons unknown, the District Clerk of Denton County

failed to act on the submitted electronic filing.” Appellants made a similar statement 

in their Motion to Extend the Time for the Filing of the Notice of Appeal filed in our 

court: “For reasons unknown, the District Clerk completely ignored that electronic 

filing.” Although at first blush it may appear that Appellants are claiming that the 

cancellation of the transaction was a mystery to them, a careful reading of these 

statements reveals otherwise. While Appellants state that the reason for the district 

clerk’s failure to “act on” the motion was unknown to them, they do not claim that 

the reason for the cancellation itself was unknown to them. As to why the transaction 

was canceled, Appellants are silent.
8

The technology is new, and there are no cases on point. But because the

supreme court has provided guidance to us with regard to the effect of withdrawing a

motion for new trial, we can draw an analogy. In Rogers v. Clinton, the supreme court 

held that when a party withdraws its timely-filed motion for new trial, the extension of 

the trial court’s plenary power is nullified, and the deadlines for plenary-power 

extension revert back as if no motion for new trial was ever filed. 794 S.W.2d 9, 11 

(Tex. 1990) (orig. proceeding). In Rogers, the defendant orally withdrew his motion

for new trial prior to the hearing on the motion. Id. at 10. Over the defendant’s 

objection, the trial court considered and granted the motion. Id. The supreme court 

held that the trial court could not order a new trial when the motion for new trial had
9

been withdrawn and more than 30 days had passed since the judgment was signed. Id.

at 11. In other words, the withdrawal of a timely-filed motion for new trial acts to 

divest the trial court of the extended plenary power that the motion provides. See id.;

see also In re Dilley ISD, 23 S.W.3d 189, 191 (Tex. App.—San Antonio 2000, orig. 

proceeding) (“If a party withdraws a motion for new trial, the period of time for the 

trial court’s plenary power reverts back to thirty days from the date the judgment is 

signed.”), abrogated in part by In re Schmitz, 285 S.W.3d 451 (Tex. 2009) (orig. 

proceeding).

The holding in Rogers was premised upon the idea that a party has the right to 

prosecute or defend its own case:

We have held repeatedly that []a plaintiff’s right to nonsuit of its 

own action exists at the moment a motion is filed, and that the only 

requirement is the mere filing of the motion with the clerk of the court.[] 

Analogously, a defendant’s right to file a motion for new trial must

certainly carry with it the right to withdraw that motion at any time before 

it is heard. A defendant must have the right to control his own defense.

794 S.W.2d at 11 (citations omitted). Here, by canceling the filing of their motion to 

reinstate, Appellants exercised their right to control the prosecution of their own 

lawsuit. While Rogers would suggest that the trial court lost plenary power in this case 

when Appellants effectively withdrew their motion to reinstate by canceling the efiling 

transaction, that is not what we are called upon to decide. We must decide what 

effect the withdrawal, or cancellation, of the motion to reinstate had on the appellate 

deadlines.
10

Extensions on plenary power and extensions on appellate deadlines usually

walk hand-in-hand. But this is not necessarily so. Because they are governed by two 

different rules—plenary power extensions by Texas Rule of Civil Procedure 329b(e) 

and appellate deadline extensions by Texas Rule of Appellate Procedure 26.1(a)—the

two may part company and travel different paths. For example, as our sister court has 

explained, just because a request for findings of fact and conclusions of law will 

extend the deadline for filing a notice of appeal under Rule 26.1(a) does not mean that 

the request will also extend a trial court’s plenary power under Rule 329b. See In re 

Gillespie, 124 S.W.3d 699, 703 (Tex. App.—Houston [14th Dist.] 2003, orig. 

proceeding). To make that determination, one must be guided by the law and the 

plain language of the applicable rules. See id. 

Texas Rule of Appellate Procedure 26.1(a) provides that the deadline for filing 

a notice of appeal is extended to “90 days after the judgment is signed if any party 

timely files . . . a motion to reinstate under Texas Rule of Civil Procedure 165a.” Tex. 

R. App. P. 26.1(a). Under Texas Rule of Civil Procedure 21(f)(5), Appellants’ motion 

to reinstate was “deemed filed when transmitted” to eFileTexas. Tex. R. Civ. P. 

21(f)(5). Under the plain language of the applicable rules, Appellants’ motion to 

reinstate, whether canceled or not, extended the appellate deadlines.

While Rogers might suggest that the cancellation of the efiling transaction would 

operate to withdraw the motion for purposes of plenary power under Rule 329b, the 

holding in Rogers does not address the extension of appellate deadlines under Rule
11

26.1(a). Because it is not our place to extend Rogers beyond its holding and because 

we are mindful that we should be vigilant to ensure that we do not “creat[e] a 

requirement not absolutely necessary from the literal words of the rule,” Jamar, 868 

S.W.2d at 319, we hold that when Appellants transmitted their motion to reinstate to

eFileTexas, it was deemed filed for purposes of Rule 26.1(a) such that the deadline for 

filing Appellants’ notice of appeal was extended to 90 days after the judgment was 

signed. We further hold that the later cancellation of that efiling transaction did not 

operate to revert the due date of Appellants’ notice of appeal back to 30 days after the 

judgment was signed. 

In their motion for an extension of time to file their notice of appeal, 

Appellants explain that they failed to file their notice of appeal on the 90th day due to 

an erroneous calculation of the appellate deadlines. Pursuant to Rule 10.5, we may 

extend that deadline upon a reasonable explanation for the need for the extension. 

See Tex. R. App. P. 10.5(b). “Reasonable explanation” has been defined as “any 

plausible statement of circumstances indicating that failure to file within the

[specified] period was not deliberate or intentional, but was the result of inadvertence, 

mistake or mischance.” Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (per curiam) 

(quoting Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)). The reason offered

by Appellants—a mistake in calendaring—fits within this definition. Because 

Appellants have offered a reasonable explanation for their failure to file their notice of 

appeal by the January 9 deadline, we grant their motion. 
12

IV. Conclusion

Based on our analysis above, we hold that Appellants’ notice of appeal filed on 

January 22, 2020, was timely filed, and we continue the appeal.

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Delivered: February 27, 2020