APPELLANT v. APPELLEES (2011)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

MEMORANDUM OPINION1

The trial court dismissed appellant Reao Keller's case for want of prosecution on November 12, 2010.   Thus, his notice of appeal was due on December 13, 2010, but he did not file it until the next day.   See Tex.R.App. P. 4.1(a), 26.1.   On December 17, 2010, we notified appellant that we could dismiss the appeal for want of jurisdiction if we did not receive a response showing a reasonable explanation for the late filing of the notice of appeal.   See Tex.R.App. P. 10.5(b)(1)(C), 26.3(b), 42.3(a);  Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex.1998);  Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997).   Appellant has not filed a response.

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 period in which the appellant would be entitled to move to extend the filing deadline under rule 26.3.   See Verburgt, 959 S.W.2d at 617;  see also Tex.R.App. P. 26.1, 26.3.   Even when a motion for extension is implied, however, it is still necessary for the appellant to reasonably explain the need for an extension.   See Verburgt, 959 S.W.2d at 617.   Because appellant's notice of appeal was untimely and he has not provided a reasonable explanation for needing an extension, even after being given the opportunity to do so, we dismiss the appeal for want of jurisdiction.   See Tex.R.App. P. 42.3(a);  In re K.M.Z., 178 S.W.3d 432, 434 (Tex.App.-Fort Worth 2005, no pet.).

PANEL:  LIVINGSTON, C.J.;   DAUPHINOT and GARDNER, JJ.

DELIVERED:  February 17, 2011

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.