                                  COURT OF APPEALS FOR THE
                            FIRST DISTRICT OF TEXAS AT HOUSTON

                                             ORDER

Appellate case name:      Donna Holcomb1 v. Chris Di Ferrante and Galveston Bleak House
                          Realty, Inc.

Appellate case number:    01-12-00679-CV

Trial court case number: CV0066527

Trial court:              County Court at Law No 3 of Galveston County

        Appellant Donna Holcomb has filed a "Motion to Review Trial Court’s Decision
Sustaining Contest Pursuant to [Texas Rule of Appellate Procedure] 20.1(J)(1) Outside the Time
Allotted for a Hearing and Without Conducting a Hearing." Appellee has filed a response,
asserting that the Court lacks jurisdiction over the appeal
       Generally, a notice of appeal is due within thirty days after the judgment is signed. See
TEx. R. APp P 26.1 The deadline to file a notice of appeal is extended to 90 days after the date
the judgment is signed if any party timely files a motion for new trial, motion to modify the
judgment, motion to reinstate, or, under certain circumstances, a request for findings of fact and
conclusions of law. See TEx. R. ApP. P. 26. l(a). To be considered timely, a motion for new trial
must be filed within 30 days after the judgment is signed. T x. R. CIv. P 329b(a).
       The record reflects that the trial court signed its final judgment on April 11, 2012. A
motion for new trial was due by May 11, 2012. See id. The parties dispute whether a motion for
new trial was timely filed.
        Appellant asserts that her motion for new trial was timely under Rule of Appellate
Procedure 9.2. See Tr x. R. App. P. 9.2(b) ("the mailbox rule"). Under Rule 9.2(b), a document
received within 10 days after the filing deadline is considered timely if it was sent to. the proper
clerk by United States Postal Service first-class, express, registered, or certified mail, and it was
deposited in the mail on or before the last day for filing. See id. A legible postmark affixed by
the United States Postal Service is conclusive proof of the date of mailing. See id. The clerk’s
record contains a motion for new trial and an envelope addressed to the Galveston County Clerk,
clearly bearing a United States Postal Service postmark of May 11, 2012, and reflecting that the
envelope was mailed first-class. See id. The Galveston County Clerk file-stamped the envelope



       This Court’s records do not reflect that Curtis Holcomb filed a notice of appeal.
on May 15, 2012, which reflects that it was received within 10 days after the filing deadline. See
id. We conclude that appellant’s motion for new trial was timely filed.
        Because appellant’s motion for new trial was timely filed, her notice of appeal was due
by July 10, 2012. See Twx. R. A ’P P 26.1(a). Appellant filed her notice of appeal on July 13,
2012. A motion for extension of time is necessarily implied when an appellant, acting good
faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the 15-day
extension period provided by Rule 26.3 See TEx. R. App. P 26.1, 26.3; Verburgt v. Dorner, 959
S.W.2d 615,617-18 (Tex. 1997). Therefore, the Court concludes that it has jurisdiction over the
appeal.
        On July 13, 2012, appellant Donna Holcomb filed an affidavit of indigence in the trial
court and contests were timely filed. See TEx. R. ApP. P 20.1 (e). Within 10 days after a contest
was filed, the trial court was required either to conduct a hearing or to sign an order extending
the time (no more than 20 days) to conduct the hearing, and to sign an order within the-time
prescribed for the hearing. See T x. R. APP. P. 20.1(i)(2)-(4). The clerk’s record does not reflect
that the trial court timely conducted a hearing, signed an order extending the tame to conduct the
hearing, or ruled on the contest within the period prescribed. See id. Therefore, the allegations
in the affidavits are deemed true, and appellant IS entitled to proceed on appeal without advance
payment of costs. T x..R. P 20.1(i)(4).

       The Clerk of this Court ORDERED to make an entry this Court’s records that
appellant Donna Holcomb is indigent and is allowed to proceed on appeal without advance
payment of costs.
       The clerk’s record has been filed.
        It ORDERED that the court reporter file with this Court, within 30 days of the date of
this order and at no cost to appellant, the reporter’s record in the appeal, or file an information
sheet certifying that none exxsts. See T x. R. APp. P 20 1 (k).



Judge’s signature:/s/Jane Bland
                 Vgl Acting individually         Acting for the Court


Date: November 13, 2012
