Court of Appeals of Texas, Eighth District, El Paso
from the 65th District Court of El Paso County, Texas (TC#
Rodriguez, J., Palafox, J., and Barajas, C.J. (Senior Judge)
Barajas, C.J. (Senior Judge), sitting by assignment
OPINION ON MOTION TO RECONSIDER
M. PALAFOX, JUSTICE
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. 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. 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.
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.).
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
consider whether Mother's timely filed notice extended
the appellate deadline applied to Father's appeal.
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)).
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).
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). ...