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Swearingen v. Carter

Court of Appeals of Texas, Fourteenth District

December 17, 2013

LARRY RAY SWEARINGEN, Appellant
v.
JOYE M. CARTER, MD, Appellee

On Appeal from the 55th District Court Harris County, Texas Trial Court Cause No. 2012-51728.

ORDER

PER CURIAM.

On December 9, 2013 appellant filed a motion to challenge the trial court's decision on indigence. Texas Rule of Appellate Procedure 20.1(j)(1) requires appellant to file a motion challenging the trial court's ruling "within 10 days after the order sustaining the contest is signed, or within 10 days after the notice of appeal is filed, whichever is later." Appellant's motion was due in this court December 2, 2013, but was filed seven days late. Rule 20.1(j)(1) allows the appellate court to extend the time for filing "on motion complying with Rule 10.5(b)." A party seeking an extension of time in the court of appeals is required to file a motion specifically stating the facts that reasonably explain the need for an extension. Rios v. Calhoon, 889 S.W.2d 257, 259 (Tex. 1994); see also Tex. R. App. P. 10.5(b)(1)(C) (requiring motion to extend time to include facts relied on to reasonably explain the need for an extension). No motion for extension of time was filed in this case, however.

The Texas Supreme Court has consistently treated minor procedural mistakes with leniency to preserve appellate rights. See, ; Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997) (implying extension of time when a party perfects an appeal in good faith within the 15-day period for filing an extension). Thus, a motion for extension of time can be implied when a motion is filed within the 15-day period for filing a motion for extension of time if the appellant thereafter files a motion complying with Rule 10.5(b)(1) that contains a reasonable explanation to support the late filing. See Houser v. McElveen, 243 S.W.3d 646, 647 (Tex. 2008); see also Miller v. Greenpark Surgery Ctr. Assoc., Ltd., 974 S.W.2d 805, 807 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (implying extension but requiring reasonable explanation).

Accordingly, unless appellant files with the clerk of this court a motion that complies with Texas Rule of Appellate Procedure 10.5(b)(1) and provides a reasonable explanation for the late filing of the party's motion within 10 days of the ...


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