                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-15-00040-CV


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

                           On Appeal from the 237th District Court
                                   Lubbock County, Texas
               Trial Court No. 2011-559,782, Honorable Leslie Hatch, Presiding

                                     March 20, 2015

                     ORDER ON MOTION FOR REHEARING
                 Before QUINN, C.J. and CAMPBELL and HANCOCK, J.J.

       Pending before the court is appellant’s motion for rehearing. We dismissed the

appeal for want of jurisdiction. The notice of appeal had been filed after the lapse of

both the original due date and the 15-day extension contemplated by Texas Rule of

Appellate Procedure 26.3. See TEX. R. APP. P. 26.3 (allowing the court to extend the

time to file the notice of appeal if, within 15 days after the original deadline expires, the

party files a notice of appeal and a motion to extend). Yet, appellant had timely moved

to extend the deadline. That motion, according to appellant, purportedly evinced a bona

fide attempt to invoke our jurisdiction. See Southerland v. Wright, No. 07-06-0147-CV,

2006 Tex. App. LEXIS 5241, at *2-3 (Tex. App.—Amarillo June 15, 2006, pet. denied)
(stating that “though a document purporting to be a notice may fail to satisfy all the

elements of a proper notice . . . it may nonetheless be enough. All depends upon

whether the instrument depicts a bona fide attempt to invoke an appellate court’s

jurisdiction”).

       That filing a timely, yet defective, document evincing an intent to appeal may

effectively perfect an appeal is beyond doubt.            Much depends on whether the

instrument constitutes a bona fide attempt to invoke the appellate court’s jurisdiction. In

the Interest of J.M., 396 S.W.3d 528, 530 (Tex. 2013). In J.M., the appellant filed a

document entitled motion for new trial, or “in the alternative, Notice of Appeal.” Id. at

529. Our Supreme Court interpreted that instrument as sufficient to perfect the appeal

because 1) nothing prevented an appellant from combining a motion for new trial and a

notice of appeal in the same document, 2) the item “indicated that Spencer was

attempting to invoke the appellate court’s jurisdiction,” 3) it stated that “Spencer

‘wishe[d] to appeal this case to’ the court of appeals,” 4) “it was partly entitled a notice of

appeal,” and 5) “the notice of appeal portion addresses the appellate court.” Id. at 530.

       Unlike the situation in J.M., the motion relied on by appellant at bar does not

have in its title “notice of appeal.” Yet, it is directed to the appellate court and invokes

an aspect of our jurisdiction, that is, our authority to extend the deadline because

“Appellant’s counsel was under the misunderstanding the notice of appeal had to come

after receipt of the findings of facts and conclusions of law . . . .” Accompanying that

purported basis for needing an extension are statements that 1) “[a]fter the Supreme

Court’s decision in Garcia v. Kastner Farm, Inc., an attorney’s misunderstanding of the

law can be a reasonable explanation” justifying an extension of the appellate deadline

and 2) “[t]he undersigned attorney’s failure to file the notice of appeal within the 90

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days, was not deliberate or intentional, but was the result of mistake.” Read together,

the utterances evince an intent to prosecute an appeal. Indeed, a timely document

seeking leave to file a late notice of appeal and explaining why the party failed to tender

the requisite notice earlier cannot logically be interpreted in other way. Implicit within it

is the notion that the party wants to prosecute an appeal. So, we interpret the timely

filed motion for extension as the requisite bona fide effort contemplated by both

Southerland and J.M.1

       Admittedly, the situation before us pushes the borders of what constitutes a bona

fide effort. Yet, the Supreme Court mandated both that the form of the document is not

controlling, In the Interest of J.M., 396 S.W.3d at 530, and that dismissal for a

procedural defect should be avoided whenever any arguable interpretation of the

appellate rules would preserve the appeal. Ryland Enterprises, Inc. v. Weatherspoon

355 S.W.3d 664, 665 (Tex. 2011); Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.

1997). We abide by those caveats here.

       The motion for rehearing is granted. Our previous order dismissing the appeal

for want of jurisdiction is vacated, and the appeal is reinstated on our docket. We

further trust that counsel will become knowledgeable of and abide by the rules of

appellate procedure to facilitate an efficient disposition of this appeal.



                                                               Brian Quinn
                                                               Chief Justice

       1
            Appellee, Andrew Perez, cites us to McCray v. Flores, No. 09-03-076-CV, 2003 Tex. App.
LEXIS 3551 (Tex. App.—Beaumont April 24, 2003, no pet.) (mem. op.) as authority holding that a motion
to extend the deadline applicable to perfecting an appeal is not a bona fide effort to invoke our
jurisdiction. Though the court so held in McCray, it did so because the movant apparently “asked for
more time in which to decide whether to appeal.” Id. at *3-4. The appellant at bar did more than simply
ask for time to “decide whether to appeal.” He indicated that he wanted to appeal but needed leave from
the court to file his notice.

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