Opinion
NO. 14-18-00274-CV
06-30-2020
DR. LOUIS PATINO, D.C.; DR. STEPHEN WILSON, M.D.; AND DR. GARY CRAIGHEAD, D.C., Appellants v. TEXAS DEPARTMENT OF INSURANCE-DIVISION OF WORKERS' COMPENSATION; COMMISSIONER CASSANDRA J. BROWN AND DR. DONALD PATRICK, IN THEIR OFFICIAL AND INDIVIDUAL CAPACITIES; STATE OFFICE OF ADMINISTRATIVE HEARINGS, TEXAS; CHIEF ADMINISTRATIVE LAW JUDGE CATHLEEN PARSLEY IN HER OFFICIAL CAPACITY; TOMMY BROYLES, IN HIS OFFICIAL CAPACITY; THE STATE OF TEXAS; AND THE ATTORNEY GENERAL OF THE STATE OF TEXAS, Appellees
On Appeal from the 126th District Court Travis County, Texas
Trial Court Cause No. D-1-GN-12-002272
ORDER
This court issued its opinion and judgment in this case on March 17, 2020. On April 1, 2020, appellants timely filed a motion for extension of time to file a motion for rehearing. That motion was granted to May 1, 2020. On May 1, 2020, appellants filed a second motion for extension of time to file a motion for rehearing. That motion was granted to June 1, 2020. On June 2, 2020, appellants filed a motion for rehearing.
Texas Rule of Appellate Procedure 49.1 provides for the filing of a motion for rehearing within fifteen days after a court of appeals' judgment or order is rendered. Tex. R. App. Proc. 49.1. "A court of appeals may extend the time for filing a motion for rehearing or en banc reconsideration if a party files a motion complying with Rule 10.5(b) no later than 15 days after the last date for filing the motion." Tex. R. App. P. 49.8. A party seeking an extension of time in the court of appeals is required to file a motion specifically stating the facts that reasonably explain the need for an extension. Rios v. Calhoon, 889 S.W.2d 257, 259 (Tex. 1994); see also Tex. R. App. P. 10.5(b)(1)(C) (requiring motion to extend time to include facts relied on to reasonably explain the need for an extension). No motion for extension of time was filed with appellants' motion for rehearing.
The Texas Supreme Court has consistently treated minor procedural mistakes with leniency to preserve appellate rights. See Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex. 1997) (implying extension of time when a party perfects an appeal in good faith within the 15-day period for filing an extension). Thus, a motion for extension of time can be implied when a motion for rehearing is filed within the 15-day period for filing a motion for extension of time if the appellant thereafter files a motion complying with Rule 10.5(b)(1) that contains a reasonable explanation to support the late filing. See Houser v. McElveen, 243 S.W.3d 646, 647 (Tex. 2008); see also Miller v. Greenpark Surgery Ctr. Assoc., Ltd., 974 S.W.2d 805, 807 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (implying extension but requiring reasonable explanation). Appellants' motion for rehearing was filed within the 15-day period for filing a motion for extension of time.
Unless appellants file with the clerk of this court a motion that complies with Texas Rule of Appellate Procedure 10.5(b)(1) and provides a reasonable explanation for the late filing of the party's motion for rehearing within 10 days of the date of this order, the court will deny the motion for rehearing as untimely.
PER CURIAM Panel consists of Justices Christopher, Jewell and Bourliot.