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 THE DENIAL OF MOTION FOR 

EN BANC RECONSIDERATION 

Opinion by Justice Schenck 

 Appellants moved for en banc reconsideration of the panel’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 file their notice of appeal. Despite noting 

that the motion was filed within the fifteen-day extension period provided by 

appellate rule 26.3, the panel nevertheless denied the motion and dismissed the 

appeal concluding appellants failed to offer 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 issue presented here implicates important 

procedural standards governing the potential waiver of the right to appeal. The panel 
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has now withdrawn its earlier decision, mooting appellants’ motion for en banc 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 recurring 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 banc court or the Texas Supreme Court. 

My understanding is that we are generally obliged by rule and mandate of a 

superior court to reach the merits and, whenever possible, not to dispose of matters 

before us due to procedural 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. App.—Dallas 2020, no pet.) (Schenck, J., concurring 

from the Court’s denial of en banc reconsideration). In view of that mandate, this 

Court and others are obliged to adopt a humble and generous view towards all who 

attempt to invoke our jurisdiction and obtain a meaningful decision. 

As I understand it, the standard for granting a timely motion to extend time to 

appeal is a subjective one: whether a party “deliberate[ly] or intention[ally] failed to 

comply” with the rule, including the provision for extra time to file a notice of 
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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 court 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 Garcia1 by creating an objective test, I believe 

we miss the mark. We would also ignore that 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 relief. 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 prior caselaw (regardless of whether it complies with Garcia) 

to point to past rejections of extensions does not amount to conscious or deliberate conduct unless the record 

shows that the party was aware of it. Failure to understand the law, even if negligent, is not a basis for 

denying a motion for additional time. Garcia, 774 S.W.2d at 669. And, even then, we would be pressed 

to the question of whether such a categorical declaration of intent would be proper under Garcia’s

subjective inquiry. 
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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 explaining 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 professional 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 conscious disregard of same because there 

is a fifteen-day window to extend should not suffice. 

Here, as in other instances, appellants explained their untimely notice of 

appeal was due to late awareness of a final judgment, confusion surrounding postjudgment filings, and a miscalculation of the appellate deadline. Because each of 

these reasons are in fact plausible explanations, it was not necessary for this Court 

to dismiss appellants’ appeal, and, as a result, the initial dismissal of this case was 

both improper and contrary to controlling precedent. See Verburgt, 959 S.W.2d at 

616. 

 
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For the reasons set forth herein, I write 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 the Texas Supreme Court to provide further 

guidance in this regard. 

 

210185CH.P05 

/David J. Schenck/

DAVID J. SCHENCK 

JUSTICE