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In re E.O.

Court of Appeals of Texas, Eighth District, El Paso

November 18, 2019

IN THE INTEREST OF E.O., A CHILD.

          Appeal from the 65th District Court of El Paso County, Texas (TC# 2018DCM1157)

          Before Rodriguez, J., Palafox, J., and Barajas, C.J. (Senior Judge) Barajas, C.J. (Senior Judge), sitting by assignment

          OPINION ON MOTION TO RECONSIDER

          GINA M. PALAFOX, JUSTICE

         Appellant G.O. (Father) seeks a reconsideration of a dismissal of the instant appeal from the trial court's judgment terminating his parental rights in cause number 2018DCM1157, 65th District Court, El Paso County. On September 25, 2019, we dismissed Father's appeal for want of jurisdiction on our own motion based on our determination that his notice of appeal was not timely filed even after giving due consideration to his contemporaneously filed motion to extend time.[1] Father then filed with this Court a motion to reconsider dismissal of the appeal. With his motion, Father included a file-stamped copy of a timely notice of appeal filed by H.A. (Mother), who was also a party with Father in the termination proceeding.[2] Having now concluded that Father's notice of appeal was timely filed within the extended time period-after taking into account Mother's earlier filed notice-we grant Father's motion to reconsider the dismissal of his appeal and withdraw our opinion and judgment dated September 25, 2019. Because we have now determined that both appeals in cause numbers 08-19-00233-CV and 08-19-00261-CV arise out of the same trial court cause number (No. 2018DCM1157), we consolidate both parties' appeals into cause number 08-19-00261-CV, on our own motion, given that the notice of appeal in that cause number was filed earlier, on August 14, 2019, and a clerk's record and reporter's record has already been filed in said cause. Accordingly, Father's notice of appeal filed on September 11, 2019 in cause number 08-19-00233-CV shall now be filed and ruled on in cause number 08-19-00261-CV, and cause number 08-19-00233-CV is ordered dismissed due to consolidation.

         BACKGROUND

         The trial court signed a final judgment terminating the parental rights of G.O. (Father) and H.A. (Mother) on July 26, 2019. On August 14, 2019, Mother filed her notice of appeal from the trial court's judgment. On September 11, 2019, Father filed his own notice of appeal with the trial court. The following day, September 12, 2019, Father then filed a motion to extend time to file a notice of appeal with this Court. On September 25, 2019, we dismissed Father's attempted appeal for lack of jurisdiction after concluding that the appellate timetable for filing a notice of appeal had ended on September 2, 2019. Interest of E.O., No. 08-19-00233-CV, 2019 WL 4668524 (Tex. App. - El Paso Sep. 25, 2019, no pet. h.) (mem. op.).

         On October 1, 2019, Father filed a motion to reconsider the dismissal of his appeal and attached a copy of Mother's file-stamped notice of appeal. Father argued that Mother's timely filed notice had conferred jurisdiction over all parties; and thus, his later filed notice would not delay or extend the appeal of the case. Per our request, on October 29, 2019, Appellee Texas Department of Family and Protective Services (the Department) filed a response to Father's motion to reconsider dismissal. Although the Department acknowledged that Mother had timely filed her appeal, it argued that Father's notice was not timely filed pursuant to the applicable rules of the Texas Rules of Appellate Procedure.

         DISCUSSION

         We now consider whether Mother's timely filed notice extended the appellate deadline applied to Father's appeal.

         Standard of Review

         Appellate courts are instructed to construe the Rules of Appellate Procedure "reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule." Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997). "[A]ppellate courts should not dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules of Appellate Procedure would preserve the appeal." Id. at 616. Explaining its rationale, Verburgt noted, "[o]ur decisions reflect the policy embodied in our appellate rules that disfavors disposing of appeals based upon harmless procedural defects." Id. (citing Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991)).

         Applicable Law

         Pursuant to the Texas Family Code, an appeal of a final order in a suit brought by the Department to terminate parental rights is governed by the Rules of Appellate Procedure applicable to accelerated appeals. See Tex. Fam. Code Ann. § 263.405(a). Unless otherwise provided by statute, Rule 28.1(b) provides that an accelerated appeal is perfected by filing a notice of appeal in compliance with Rule 25.1 within the time allowed by Rule 26.1(b) or as extended by Rule 26.3. Tex.R.App.P. 28.1(b). Pursuant to Rule 25.1(a), an appeal is perfected in a civil case when a written notice of appeal is filed with the trial court clerk. See Tex. R. App. P. 25.1(a). Rule 25.1(b) further specifies that the filing of a notice of appeal by any party invokes the appellate court's jurisdiction over all parties to the trial court's judgment or order that is being appealed from. See Tex. R. App. P. 25.1(b) (emphasis added). Except for just cause, however, appellate courts are prohibited from granting more favorable relief-that is, more favorable than that granted by the trial court-to a party who does not file a notice of appeal. See Tex. R. App. P. 25.1(c). Thus, any other party seeking to alter the trial court's judgment or other appealable order must also file a notice of appeal even when jurisdiction has already been invoked. See Tex. R. App. P. 25.1(c).

         As referenced by Rule 28.1(b), Rule 26.1(b) provides that the notice of appeal in an accelerated appeal must be filed within 20 days after the judgment or order is signed. Tex.R.App.P. 26.1(b). If any party timely files a notice of appeal, Rule 26.1(d) permits another party to file a notice of appeal within the applicable period or 14 days after the first filed notice of appeal, whichever is later. See Tex. R. App. P. 26.1(d) (emphasis added). Also referenced by Rule 28.1(b), Rule 26.3 permits an appellate court to extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the party (a) files in the trial court the notice of appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b). See Tex. R. App. P. 26.3, 10.5(b). Rule 10.5(b) establishes the form and content requirements of a motion to extend time. See Tex. R. App. P. 10.5(b). The inquiry then becomes whether the party filing the notice of appeal within the 15-day grace period furnished a reasonable explanation for the untimely filing. Tex.R.App.P. 10.5(b)(1)(C). ...


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