NUMBER 13-10-00034-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________

MONTEMAYOR HANSON GARCIA 

VILLAFRANCO & ASSOCIATES, 

A PARTNERSHIP, Appellant,

v.

ARTURO MARTINEZ AND ROSA MARTINEZ, Appellees,

____________________________________________________________

On Appeal from the 197th District Court 

of Cameron County, Texas.

____________________________________________________________

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Yañez and Garza

Memorandum Opinion Per Curiam

Appellant, Montemayor Hanson Garcia Villafranco & Associates, a Partnership, 

attempted to perfect an appeal from a judgment entered by the 197th District Court of 

Cameron County, Texas, in cause number 2006-04-1631-C. Judgment in this cause 

was signed on August 5, 2009. A motion for new trial was filed on September 3, 2009.

2007. Appellant’s notice of appeal states that the appeal is from the trial court’s denial of 

a motion for new trial and the granting of defendant’s summary judgment signed on 
2

November 16, 2009.1 The notice of appeal and accompanying certificate of service is 

dated December 14, 2009.

Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when 

notice of appeal is filed within thirty days after the judgment is signed, unless a motion for 

new trial is timely filed. TEX. R. APP. P. 26.1(a)(1). Where a timely motion for new trial 

has been filed, notice of appeal shall be filed within ninety days after the judgment is 

signed. TEX. R. APP. P. 26.1(a). 

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, 617-18, 619 (1997) (construing the 

predecessor to Rule 26). However, appellant must provide a reasonable explanation for 

the late filing: it is not enough to simply file a notice of appeal. Id.; Woodard v. Higgins, 

140 S.W.3d 462, 462 (Tex. App.BAmarillo 2004, no pet.); In re B.G., 104 S.W.3d 565, 567 

(Tex. App.BWaco 2002, no pet.).

Pursuant to Texas Rule of Appellate Procedure 26.1, appellant=s notice of appeal 

was due on November 3, 2009, but was not filed until December 29, 2009. On February 

18, 2010, the Clerk of this Court notified appellant of this defect so that steps could be 

taken to correct the defect, if it could be done. Appellant was advised that, if the defect 

was not corrected within ten days from the date of receipt of this Court=s letter, the appeal 

would be dismissed. Appellant responded, stating “in early December, is when I recall 

sending the notice. Hopefully, I will be able to show the exact dates.” 

 

1 The only order entered by the trial court on November 16, 2009, was an Order Denying Motion for New 

Trial.
3

Additionally, appellant has filed a “Motion for Extension of Time to Late File Motion 

for Leave to File Late Notice of Appeal” and “Motion for Leave to File Late the Notice of 

Appeal.” In these motions, appellant states that the notice of appeal was mailed to the 

district clerk and there is a record of a notice of appeal, however, it was not marked until 

about three weeks after it was received. Appellant is requesting that the Court accept 

the notice of appeal as filed timely.

Although appellant has responded with an explanation regarding his late filing of 

the notice of appeal, appellant’s notice of appeal was filed beyond the fifteen-day grace 

period provided by rule 26.3. Appellant asserts he mailed the notice of appeal and it was 

not file marked until three weeks later, however appellant has not provided any measure 

of proof that his notice of appeal was placed in the United States mail on or before 

November 18, 2009.

2

 See TEX. R. APP. P. 9.2(b)(2). 

The Court, having examined and fully considered the documents on file and 

appellant=s failure to timely perfect his appeal, is of the opinion that the appeal should be 

dismissed for want of jurisdiction. Appellant’s “Motion for Extension of Time to Late File 

Motion for Leave to File Late Notice of Appeal” and “Motion for Leave to File Late the 

Notice of Appeal” are hereby DENIED. Accordingly, the appeal is hereby DISMISSED 

FOR WANT OF JURISDICTION. See TEX. R. APP. P. 42.3(a).

PER CURIAM

Delivered and filed the 

31st day of August, 2010. 

 

2 Notice of appeal was due on November 3, 2009, and the fifteen-day grace period ended on November 18, 

2009.