Premature Motion to Reinstate Appeal In Texas
A prematurely filed motion to reinstate extends the appellate timetables and the trial court's plenary jurisdiction. See Perez v. Texas Employers' Ins. Ass'n, 926 S.W.2d 425, 426 (Tex. App.-Austin 1996, no writ).
At issue in Perez was whether the plaintiff's verified motion to reinstate, filed before the final judgment, was effective to extend the appellate timetables. See id.
First, the trial court signed an interlocutory order dismissing the plaintiff's case against two of the three defendants. See id.
After the trial court denied the plaintiff's motions to reinstate, the court granted a non-suit as to the third defendant, thereby making the judgment final. See id.
The Perez court, construing former Texas Rule of Appellate Procedure 58(a), held that a prematurely filed, verified motion to reinstate extended the appellate timetable because it is a "proceeding relating to an appeal." 926 S.W.2d at 427.
Rule 58(a) provided:
Proceedings relating to an appeal need not be considered ineffective because of prematurity if a subsequent appealable order has been signed to which the premature proceeding may properly be applied.
See White v. Schiwetz, 793 S.W.2d 278, 280 (Tex. App. -- Corpus Christi 1992, no writ). Much of former Rule 58(a) is now embodied in Texas Rule of Appellate Procedure 27.2, governing premature filings, and provides in pertinent part:
The appellate court may treat actions taken before an appealable order is signed as relating to an appeal of that order and give them effect as if they had been taken after the order was signed. TEX. R. APP. P. 27.2.
Observing that Rule 58 did not contain a specific list of items that would extend the appellate timetable, the Perez court explained:
We do not think the language in Rule 58 compels the exclusion of a verified motion to reinstate, whereas interpreting Rule 58 to allow a prematurely filed motion to reinstate to extend the appellate timetables harmonizes with the general principle of liberally construing the rules of appellate procedure when possible. Perez, 926 S.W.2d at 427.
Therefore, the Perez court reasoned, a motion to reinstate extends the appellate timetables in the same way as a motion for new trial. Perez, 926 S.W.2d at 426-27 (citing Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986)).