David Gaultney and Elana Einhorn 2016-11-24 11:54:36
UNIFORM PRACTICE A case for a rule change on late notices of appeal. Our state’s two high courts take different approaches to Texas Rule of Appellate Procedure Rule 26.3, which governs requests for extensions of time to file a notice of appeal. A timely notice of appeal is a jurisdictional requirement in both civil and criminal cases.1 Yet the Texas Supreme Court allows a late-filed notice to serve as an “implied” motion for extension, while the Court of Criminal Appeals requires an actual motion in addition to the notice.2 Since Rule 26.3 applies to both civil and criminal cases, it is difficult to understand why the rule is applied more stringently in criminal than civil appeals. A rule change would resolve the conflict. Two Practices Rule 26.3 provides a 15-day grace period: The time to file the notice may be extended if, within 15 days after the deadline, a party files the notice and a motion to extend time.3 If a party files the notice but not a motion within the grace period, a criminal case will be dismissed but a civil case will not.4 In a civil case, a notice filed within the grace period is considered an implied motion for extension. The court of appeals will then grant the appellant an opportunity to explain why an extension should be granted by allowing an “amended” motion.5 In a criminal case, however, an actual motion must be filed within the grace period or the appeal will be dismissed.6 It is not clear why the same rule is applied differently.7 The variance may reflect two views of the liberality with which the appellate rules should be construed and whether gaps in the rules may be filled by caselaw or should await the rule-amendment process. Amending the rules too frequently is inefficient and unnecessary when they can be construed liberally to achieve their purpose. And neither court can mandate that the other follow its cases interpreting the rule.8 A uniform application of Rule 26.3 seems unlikely without a rule change. Three Options Any one of three options could resolve the conflict. First, the rule could be rewritten along the lines of Rule 28.3(d), governing permissive appeals in civil cases.9 It could stipulate that if the notice is filed within 15 days of the deadline, and a motion for extension is filed, the court can grant the extension. This would remove the 15-day deadline for filing the motion in both civil and criminal cases, and make unnecessary the current implied-motion practice in civil appeals. Second, the rule could be revised to add the word “separate” before the word “motion” in Rule 26.3(b). An additional sentence or subsection could be included making clear that the notice by itself will not be treated as a motion for extension, and that a separate motion within the grace period is a jurisdictional requirement. Third, the first option could be adopted as the civil rule and the second as the criminal rule to make the different practices explicit. There are separate appellate rules in some contexts.10 But the need for separate rules here is not apparent. The Best Choice Removing the 15-day deadline for motions to extend time is the better policy choice. Both high courts emphasize that a party’s right to appeal should not depend on technicalities. 11 Requiring a motion to be filed within the same 15-day window as the late notice of appeal is a technical requirement. The jurisdictional purpose of notifying the court and parties of the intent to appeal is satisfied by the notice. The motion serves the separate purpose of explaining why the time to file the notice should be extended. The 15-day deadline for the motion has no intrinsic jurisdictional value; it is a rule of efficiency to permit the motion to be considered quickly. But if filing both the motion and notice within the grace period is considered a jurisdictional requirement, then the purpose of allowing a grace period— to avoid injustice when a notice is late but there is a reasonable explanation—is defeated. The likelihood that a separate motion will be timely filed decreases the closer to the end of the grace period the late notice is filed. Removing the 15-day requirement for the motion would allow a notice filed any time during the grace period to receive the same consideration regardless of whether the late notice is filed one day after the initial deadline or on the last day of the grace period. For example, in a criminal case, if a party files a notice of appeal pro se on the 13th, 14th, or 15th day of the grace period, that party is unlikely to also file a motion for extension within the timeframe. Even if the party has a legitimate reason for the late filing, the process simply takes too long. A staff attorney, clerk, or judge reviewing the case will see at some point that the notice was filed after the deadline, the clerk may notify the party of the need for the motion, the party will file a motion but likely outside the grace period, and so the appeal will be dismissed. In that circumstance, because of the requirement that a motion be filed within the period, the court of appeals will not have an opportunity to consider whether a reasonable explanation exists to allow the late-filed notice. Amending the rule to remove the 15-day deadline for the motion would also eliminate the civil practice of treating the notice as an implied motion, which is contradicted by the language of the rule requiring both the notice and “a motion complying with Rule 10.5(b)” to be filed within the same grace period.12 Currently, the lack of an initial motion to extend is remedied in civil cases by allowing a party to subsequently provide a reasonable explanation, as required by Rule 44.3.13 That is, a court of appeals cannot dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend.14 But the need to “amend” an “implied” motion can be eliminated by changing the rule to permit a motion for extension to be filed after the grace period; the rule itself could make clear that only the notice would be required.15 The goal should be to reach the merits, not dismiss a case on procedural technicalities. A party should have a reasonable opportunity to correct formal defects before dismissal is appropriate.16 A Uniform Practice The Supreme Court has emphasized that: “Texas favors a policy allowing an appellant the opportunity to cure a procedural defect so that a case may be decided on its merits.”17 The Court of Criminal Appeals agrees,18 although that approach is not reflected in its current application of Rule 26.3. It may be because the court believes, as a plurality stated in another context, that rules should be changed only through the rule-making process.19 If so, amending the rule may be the only way to correct the unequal treatment of criminal and civil appellants under Rule 26.3. Notes 1) See Tex. R. App. P. 25.1(b), 25.2(b); Taylor v. State, 424 S.W.3d 39, 43 (Tex. Crim. App. 2014); Sweed v. Nye, 323 S.W.3d 873, 874-75 (Tex. 2010). 2) Compare Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (applying “implied” motion rule of Verburgt v. Dorner, 959 S.W.2d 615, 616 [Tex. 1998], to late-filed notices) with Castillo v. State, 369 S.W.3d 196, 198 n.10, 201 (Tex. Crim. App. 2012) (affirming continued validity of Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996), requiring an actual motion to be filed along with a late notice). 3) See Tex. R. App. P. 26.3. 4) See Lair v. State, 321 S.W.3d 158, 159 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d.). 5) See Hone, 104 S.W.3d at 887. 6) Olivo, 918 S.W.2d at 523-24. 7) See Freeman v. State, 330 S.W.3d 922, 922 (Tex. App.—Beaumont 2011, no pet.). 8) In re Reece, 341 S.W.3d 360, 380 (Tex. 2011) (Willett, J., dissenting) (“Our dual high courts are largely meant to be co-equals—constitutional twins.”). 9) See Tex. R. App. P. 28.3(d). 10) Compare Tex. R. App. P. 25.1 with Tex. R. App. P. 25.2. 11) See McClean v. Livingston, 486 S.W.3d 561, 564-65 (Tex. 2016); Harkcom v. State, 484 S.W.3d 432, 434 (Tex. Crim. App. 2016). 12) See Tex. R. App. P. 26.3(b). 13) See Tex. R. App. P. 44.3. 14) See id. 15) See, e.g., Tex. R. App. P. 28.3(d). 16) See Tex. R. App. P. 44.3. 17) McClean, 486 S.W.3d at 564-65. 18) Harkcom, 484 S.W.3d at 434 (“The Rules of Appellate Procedure should be construed reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule.”) (internal citations omitted). 19) See State v. Wachtendorf, 475 S.W.3d 895, 902 (Tex. Crim. App. 2015) (plurality opinion). DAVID GAULTNEY practices appellate law in the Austin office of MehaffyWeber. He is a former justice on the 9th Court of Appeals and is certified in civil appellate law, civil trial law, and personal injury trial law by the Texas Board of Legal Specialization. ELANA EINHORN practices appellate law in the Austin office of MehaffyWeber. She is certified in civil appellate law by the Texas Board of Legal Specialization and is an adjunct professor at the University of Texas School of Law. The views expressed in this article are those of the authors and do not necessarily represent the policy, position, or views of, and should not be attributed to, the State Bar of Texas.
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