                                  Fourth Court of Appeals
                                          San Antonio, Texas
                                                February 25, 2020

                                              No. 04-20-00071-CV

                                          CITY OF SAN ANTONIO,
                                                 Appellant

                                                         v.

    Patrick Von DOHLEN, Brian Greco, Kevin Jason Khattar, Michael Knuffke, and Daniel Petri,
                                        Appellees

                        From the 37th Judicial District Court, Bexar County, Texas
                                      Trial Court No. 2019CI18637
                              Honorable David A. Canales, Judge Presiding


                                                 ORDER
         In their original petition, appellees Patrick Von Dohlen, Brian Greco, Kevin Jason
Khattar, Michael Knuffke, and Daniel Petri sued appellant, the City of San Antonio, under
section 2400.002 of the Texas Government Code.1 Appellant filed a verified answer that
included a plea to the jurisdiction. Appellant also filed a motion to dismiss under rule 91a of the
Texas Rules of Civil Procedure, which allows a party to move to dismiss a claim on the ground
that it has no basis in law or in fact. See TEX. R. CIV. P. 91a.1. The trial court signed an order
denying both the plea to the jurisdiction and the rule 91a motion to dismiss. Thereafter, appellant
filed a notice of appeal, stating it intends to appeal both the denial of its plea to the jurisdiction
and the denial of its rule 91a motion to dismiss. The challenged order is interlocutory in nature.

       Appeals from interlocutory orders, when allowed by statute, are accelerated. See TEX. R.
APP. P. 28.1. Here, the trial court signed the order denying appellant’s plea to the jurisdiction and
rule 91a motion to dismiss on January 9, 2020. Because this is an accelerated appeal, the notice
of appeal was due Wednesday, January 29, 2020. See TEX. R. APP. P. 26.1(b). A motion for

1
    Section 2400.002 of the Texas Government Code provides:

           Notwithstanding any other law, a governmental entity may not take any adverse action against any
           person based wholly or partly on the person’s membership in, affiliation with, or contribution,
           donation, or other support provided to a religious organization.

TEX. GOV’T CODE § 2400.002.
extension of time to file the notice of appeal was due on February 13, 2020. See TEX. R. APP. P.
26.3. Appellant filed a notice of appeal on January 30, 2020. Although appellant filed a notice of
appeal within the fifteen-day grace period allowed by rule 26.3, it 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 v.
Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to rule 26). 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).

         Additionally, an interlocutory order may be appealed only if a specific statute authorizes
an interlocutory appeal. For example, section 51.014 of the Texas Civil Practice and Remedies
Code lists circumstances under which a party may appeal from an interlocutory order of a district
court, county court at law, or county court. See TEX. CIV. PRAC. & REM. CODE § 51.014. Section
51.014 expressly authorizes an appeal from an interlocutory order denying a plea to the
jurisdiction by a governmental unit. Id. at § 51.014(a)(8). However, we have not found any
statutory authority that allows a party to appeal from an interlocutory order denying a motion to
dismiss filed pursuant to rule 91a. Therefore, even if appellant provides a reasonable explanation
for failing to file a notice of appeal in a timely manner, we question our jurisdiction to entertain
the part of this appeal challenging the denial of appellant’s rule 91a motion to dismiss. See In re
Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (granting mandamus relief after concluding
relator had no adequate remedy by appeal to challenge the denial of a rule 91a motion to
dismiss); S. Cent. Houston Action v. Stewart, 14-15-00088-CV, 2015 WL 1508699, at *1 (Tex.
App.—Houston [14th Dist.] March 31, 2015, no pet.) (dismissing an interlocutory appeal because
the appellate court had no jurisdiction over the denial of a motion to dismiss under rule 91a); see
also City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 822 (Tex. App.—Austin 2014, no pet.)
(stating that because the city’s rule 91a motion challenged the trial court’s subject-matter
jurisdiction, section 51.014(a)(8) of the civil practice and remedies code granted the city the right
to an interlocutory appeal of the denial of its rule 91a motion to dismiss).

        Therefore, we ORDER appellant to file, on or before March 6, 2020, a written response
that (1) presents a reasonable explanation for appellant’s failure to file its notice of appeal in a
timely manner; and (2) demonstrates that this court has jurisdiction to entertain an interlocutory
appeal from the trial court’s order denying appellant’s rule 91a motion to dismiss. If appellant
fails to respond within the time provided, this appeal will be dismissed. See TEX. R. APP. P.
42.3(c).

       Appellant has filed a motion for extension of time to file its brief. Appellant’s request for
an extension of time to file its brief is HELD IN ABEYANCE pending our determination of
whether we have jurisdiction over this appeal.




                                                      _________________________________
                                                      Irene Rios, Justice


       IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 25th day of February, 2020.
___________________________________
Michael A. Cruz,
Clerk of Court
