Motion for Extension of Time to File Notice of Appeal In Texas
The Texas Supreme Court held in Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). . . that a motion for extension of time is necessarily implied when an appellant acting in good faith files a bond beyond the time allowed by Rule 41(a)(1), but within the fifteen-day period in which the appellant would be entitled to move to extend the filing deadline under Rule 41(a)(2) . . . we reverse the judgment of the court of appeals and remand to that court to allow it to determine whether Verburgt offered a reasonable explanation for his failure to timely file his bond.
The Supreme Court specifically noted that the rule as applied in civil cases was more liberal than in criminal cases. Id at 616.
Verburgt involved the application of the former rules invoking the court of appeals jurisdiction in a civil case by filing a cost bond.
Verburgt has been applied to the current requirement for filing a notice of appeal to invoke appellate jurisdiction. Coronado v. Farming Technology, Inc., 994 S.W.2d 901 (Tex. App.--Houston [1st Dist.] 1999, no pet.); TEX. R. APP. P. 26.
In Olivo v. State, 918 S.W.2d 519, 523 (Tex. Crim. App. 1996) the Court analyzed the issue as follows:
"Jurisdiction of a court must be legally invoked, and when not legally invoked, the power of the court to act is as absent as it if did not exist." [citation omitted] When a notice of appeal, but no motion for extension of time, is filed within the fifteen-day period, the court of appeals lacks jurisdiction to dispose of the purported appeal in any manner other than by dismissing it for lack of jurisdiction. In that instance, a court of appeals lacks jurisdiction over the purported appeal, and therefore, lacks the power to invoke Rule 2(b) . . . in an effort to obtain jurisdiction of the case. Consequently, a court of appeals may not utilize Rule 2(b) . . . to create jurisdiction where none exists.
After Verburgt was decided by the Texas Supreme Court, the Court of Criminal Appeals was specifically invited by the Austin Court of Appeals to re-examine Olivo. Williams v. State, 957 S.W.2d 949, 950 (Tex. App.--Austin 1997, no pet.).
The Court of Criminal Appeals did not accept the invitation.