                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                        No. 04-13-00439-CV

                                      Rodolfo Rivera MUNOZ,
                                             Appellant

                                                  v.

THTHE CITY OF BALCONES HEIGHTS, The City of San Antonio, and The State of Texas,
                            Appellees

                      From the 57th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2013-CI-01985
                             Honorable Peter A. Sakai, Judge Presiding

PER CURIAM

Sitting:          Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: November 20, 2013

DISMISSED FOR WANT OF JURISDICTION

           Appellant Rodolfo Rivera Munoz filed a declaratory judgment action against the City of

Balcones Heights, the City of San Antonio, the State of Texas, and Star Shuttle. Each defendant

filed a plea to the jurisdiction. The clerk’s record, which was filed in this court on September 23,

2013, establishes the trial court granted the pleas filed by the City of San Antonio, the State of

Texas, and the City of Balcones Heights. However, this court found no document in the clerk’s

record disposing of the plea filed by Star Shuttle or otherwise disposing of appellant’s claims

against Star Shuttle. This court contacted the office of the district clerk to determine if any
                                                                                      04-13-00439-CV


document relating to Star Shuttle’s plea had been omitted from the record and was told no

documents were omitted. Accordingly, it initially appeared there was no final judgment or order

in this case because the claims against Star Shuttle were not disposed of by the trial court. See

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).

       Accordingly, we ordered appellant to show cause in writing why this appeal should not be

dismissed for lack of jurisdiction. We further ordered all appellate deadlines suspended pending

our determination of whether we have jurisdiction over this appeal.

       Appellant filed a written response. In the response, appellant correctly pointed out that the

failure to dispose of Star Shuttle below rendered the orders in question interlocutory, but

appealable pursuant to section 51.014(a)(8) of the Texas Civil Practice and Remedies Code. See

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West 2012) (stating that order granting or

denying plea to jurisdiction by governmental unit is appealable interlocutory order). However,

because the orders are interlocutory pursuant to section 51.014(a)(8), any appeal from such orders

is accelerated and subject to the accelerated deadlines set forth in the Texas Rules of Appellate

Procedure. See TEX. R. APP. P. 28.1(a) (stating that appeals from interlocutory orders – when

allowed by statute – are accelerated; see also TEX. R. APP. P. 26.1, 26.3 (setting out deadlines for

filing notice of appeal or motion to extend time to file notice of appeal in accelerated appeal).

Given that this appeal was originally docketed as a regular as opposed to an accelerated appeal,

the court has again reviewed the clerk’s record regarding the dates of the orders and the date of the

filing of the notice of appeal and determined the notice of appeal appears to be untimely as to all

three orders.




                                                -2-
                                                                                      04-13-00439-CV


                         Orders Granting Pleas to the Jurisdiction Filed
                        by the City of San Antonio and the State of Texas

       Appellant attempts to appeal from the trial court’s orders granting the separate pleas to the

jurisdiction filed by the City of San Antonio and the State of Texas. As noted above, appeals from

such orders are accelerated. See TEX. R. APP. P. 28.1(a). The trial court signed the orders granting

the pleas filed by the City of San Antonio and the State of Texas on May 14, 2013. Because appeals

from these orders are accelerated, appellant’s notice of appeal as to these two orders was due June

3, 2013. See TEX. R. APP. P. 26.1(b). Neither a timely motion for new trial nor a timely request

for findings of fact and conclusions of law will extend the time to perfect an accelerated appeal.

TEX. R. APP. P. 28.1(b). A motion for extension of time to file the notice of appeal as to these two

orders was due June 18, 2013. See TEX. R. APP. P. 26.3. Appellant did not file a notice of appeal

until June 25, 2013, and he did not file a motion for extension of time to file the notice of appeal.

       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 grace

period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner,

959 S.W.2d 615, 617 (Tex.1997) (construing predecessor to Rule 26). But “once the period for

granting a motion for extension of time under Rule [26.3] has passed, a party can no longer invoke

the appellate court’s jurisdiction.” Id. Thus, in this case, no motion for extension of time can be

implied based on the filing of the notice of appeal because the notice of appeal was not filed within

fifteen days of the date the orders were signed. See id. Thus, it appears the notice of appeal as to

the orders granting the pleas filed by the City of San Antonio and the State of Texas is untimely.

       Based on the foregoing, we ordered appellant to show cause in writing on or before

November 7, 2013, why the appeals as to the orders granting the pleas to the jurisdiction in favor

of the City of San Antonio and the State of Texas should not be dismissed for want of jurisdiction.


                                                -3-
                                                                                        04-13-00439-CV


Appellant filed a response on November 7, 2013. However, after carefully reviewing appellant’s

response, we hold that he has not shown any legally accurate explanation establishing this court’s

jurisdiction with regard to the orders on the pleas filed by the City of San Antonio and the State of

Texas.    Accordingly, we hold we are without jurisdiction to review these orders because

appellant’s notice of appeal was untimely. See id.

                           Order Granting Plea to the Jurisdiction Filed
                                 by the City of Balcones Heights

         Appellant also attempts to appeal the trial court’s order granting the plea to the jurisdiction

filed by the City of Balcones Heights. As noted above, an appeal from such an order is accelerated.

See TEX. R. APP. P. 28.1(a). The trial court signed the order granting the plea filed by the City of

Balcones Heights on May 20, 2013. Because this is an accelerated appeal, the notice of appeal

was due June 10, 2013. See TEX. R. APP. P. 26.1(b). Neither a timely motion for new trial nor a

timely request for findings of fact and conclusions of law will extend the time to perfect an

accelerated appeal. TEX. R. APP. P. 28.1(b). A motion for extension of time to file the notice of

appeal was due on June 25, 2013. See TEX. R. APP. P. 26.3. Although appellant filed a notice of

appeal within the fifteen-day grace period allowed by Rule 26.3, he did not file a motion for

extension of time.

         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 grace

period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt, 959 S.W.2d

at 617. However, the appellant must offer a reasonable explanation for failing to file the notice of

appeal in a timely manner. See id.; TEX. R. APP. P. 26.3, 10.5(b)(1)(C).

         We therefore ordered appellant to file a written response in this court on or before

November 7, 2013, presenting a reasonable explanation for failing to file the notice of appeal in a


                                                  -4-
                                                                                      04-13-00439-CV


timely manner. As noted above, appellant filed a response on November 7, 2013. As a “reasonable

explanation” for filing an untimely notice of appeal as to the order granting the City of Balcones

Heights’ plea to the jurisdiction, appellant stated:

       The “reasonable explanation” is that I did not make, or intend to make, an
       “Interlocutory Appeal,” and, to the contrary, this Fourth Court is desperately trying
       to find a means of duplicating what the Lower Courts did and dismiss without ever
       having addressed the issue of the State Of Texas being void ab initio.

       In Hone v. Hanafin, the supreme court addressed the issue of what constitutes a “reasonable

explanation,” holding that “[a]bsent a finding that an appellant’s conduct was deliberate or

intentional, the court of appeals should ordinary accept the appellant’s explanation as reasonable.”

104 S.W.3d 884, 887 (Tex. 2003). Under this standard, we hold appellant’s explanation was not

reasonable. He clearly intended to file the notice of appeal when he did, but simply contends he

did not intend this as an interlocutory appeal. However, legally it is an interlocutory appeal given

that the record shows, and appellant admits, a lack of disposition as to the plea to the jurisdiction

filed by Star Shuttle. Moreover, in his own response to this court’s prior show cause order, it was

appellant who pointed out this was a proper interlocutory appeal under section 51.014(a)(8). See

TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8). Accordingly, because appellant did not

provide a “reasonable explanation” as required under Verburgt, the notice of appeal was untimely

and this court is without jurisdiction.

                                             Conclusion

       Based on the foregoing, we hold we have no jurisdiction over this appeal.               More

specifically, we hold appellant’s notice of appeal was untimely. Accordingly, we dismiss this

appeal for want of jurisdiction.


                                                   PER CURIAM



                                                 -5-
