CONCUR and Opinion Filed April 28, 2022 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-21-00185-CV IN THE INTEREST OF D.M., A MINOR CHILD On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-19-03631 CONCURRING OPINION FROM TH E DENIAL OF MOTION FOR EN BANC RECONSIDERATION Opinion by Justice Schenck Appellants moved for en banc reconsideration of the pa nel’s dismissal of their notice of appeal from a final decree of divorce signed on December 15, 2020. The panel originally dismissed the appeal for lack of jurisdiction after denying appellants’ motion for extension of time to f ile their notice of appeal. Despite noting that the motion was filed within the fifteen-day extension period provided by appellate rule 26.3, the pa nel nevertheless denied th e motion and dismissed the appeal concluding appellants failed to offe r a reasonable explanation for the delay in filing. I supported the request for en banc reconsideration and wrote separately to address the problem, as I believe the i ssue presented here implicates important procedural standards governing the potential wa iver of the right to appeal. The panel–2– has now withdrawn its earlier decisi on, mooting appellants’ motion for en banc reconsideration in this case. The issue nevertheless remains extant. See A to Z Wholesale Wine & Spirits, LLC v. Spectra Bank , No. 05-21-01149-CV, 2022 WL 1025098 (Tex. App.—Dallas Apr. 6, 2022, no pet. h.) (mem. op.); Ali v. Spectra Bank , No. 05-21-01113-CV, 2022 WL 1025101 (Tex. App.—Dallas Apr. 6, 2022, no pet. h.) (mem. op.). In view of the re curring nature of the problem, I believe the release of my opinion, as a concurrence, is necessary to facilitate a resolution of the question in an appropriate case by the en ba nc court or the Texas Supreme Court. My understanding is that we are genera lly obliged by rule and mandate of a superior court to reach the me rits and, whenever possible, not to dispose of matters before us due to pro cedural irregularities. See St. John Missionary Baptist Church v. Flakes , 595 S.W.3d 211, 215 (Tex. 2020); Herczeg v. City of Dallas , No. 05-19- 01023-CV, 2021 WL 1169396, at *3 (Tex. App.—Dallas Mar. 29, 2021, pet. denied) (mem. op.) (Schenck, J., dissenting); B.C. v. Steak N Shake Operations, Inc. , 613 S.W.3d 338, 345–46 (Tex. Ap p.—Dallas 2020, no pet.) (Sc henck, J., concurring from the Court’s denial of en banc reconsid eration). In view of that mandate, this Court and others are obliged to adopt a hu mble and generous view towards all who attempt to invoke our ju risdiction and obtain a meaningful decision. As I understand it, the standard for gr anting a timely motion to extend time to appeal is a subjective one: whether a party “d eliberate[ly] or intention[ally] failed to comply” with the rule, including the provi sion for extra time to file a notice of–3– appeal. Garcia v. Kastner Farms , 774 S.W.2d 668, 670 (Tex . 1989). Thus, a decision made to pursue an appeal made only after expiration of the original deadline

— and after announcing in open c ourt the intent not to appeal

— does not amount to waiver. Calce v. Dorado Exploration, Inc. , 309 S.W.3d 719, 730 (Tex. App.—Dallas 2010, no pet.) (applying Garcia ). To the extent other decisions of this Court suggest a standard contrary to Garcia 1 by creating an objective test, I believe we miss the mark. We would also ignore th at the extension rule and its “liberal” standard are known to the parties to be that any subjectively “reasonable” explanation will permit an extension. 2 We are told to give effect to any bona fide attempt to invoke the appellate court’s jurisdiction. Verburgt v. Dorner , 959 S.W.2d 615, 616 (Tex. 1997). I construe that general directive to require that we grant additional time unless there is an affirmative indication to deny that relie f. A default against jurisdiction in this setting, is the opposite effect. A formality in invoking this Court’s jurisdiction should be treated as what it is : a formality, not a terminal event. We are not lords of this manor; we are merely the servants. Once a party has made a bona fide attempt

1 Notably, Garcia cited with approval a dissent by Justice Guittard from this Court in Sloan v. Passman , 536 S.W.2d 575 (Tex. App.—Dallas 1976, no writ), with Justice Guittard’s dissenting opinion reported in 538 S.W.2d 1, in embracing its liberal standard.
2 One could argue that parsing into our prio r caselaw (regardless of whether it complies with Garcia ) to point to past rejections of extensions does not am ount to conscious or deliberate conduct unless the record shows that the party was aware of it. Failure to under stand the law, even if neg ligent, is not a basis for denying a motion for additional time. Garcia , 774 S.W.2d at 669. And, ev en then, we would be pressed to the question of whether such a categorical declaration of intent would be proper under Garcia ’s subjective inquiry.–4– to invoke our jurisdiction, or pursue a merits disposition, we are obliged to facilitate that right. Any “reasonable explanation” for a late filing of a notice of appeal within the fifteen-day extension period should suffice. This would include “any plausible statement” of the circumstances expl aining the failure to file timely. Garcia, 774 S.W.2d at 669. Unfamiliarity with caselaw or miscalculation of deadlines, as I understand it, might, at worst, amount to prof essional negligence, but it is clearly not an intentional or conscious disregard for the filing deadline. Id. On the other hand, subjective awareness of the deadline and c onscious disregard of same because there is a fifteen-day window to exte nd should not suffice. Here, as in other instances, appellant s explained their untimely notice of appeal was due to late awareness of a final judgment, confus ion surrounding postjudgment filings, and a miscalculation of th e appellate deadline . Because each of these reasons are in fact plausible explan ations, it was not necessary for this Court to dismiss appellants’ appeal, and, as a re sult, the initial dismissal of this case was both improper and c ontrary to controlling precedent. See Verburgt , 959 S.W.2d at
616.–5– For the reasons set forth herein, I wr ite separately to commend the panel on withdrawing its earlier opinion, to highlight what I perceive to be a continuing problem in this area, and to encourage th e Texas Supreme Court to provide further guidance in this regard.

210185CH.P05 /David J. Schenck / DAVID J. SCHENCK JUSTICE