Noel Rubio v. Texas Workforce Commission and Dallas ISD Appeal from County Court at Law No. 3 of Dallas County (memorandum opinion by chief justice wright)

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Dismissed and Opinion Filed October 23, 2015 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01149-CV NOEL RUBIO, Appellant V. TEXAS WORKFORCE COMMISSION AND DALLAS ISD, Appellees On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-15-00027-C MEMORANDUM OPINION Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart Opinion by Chief Justice Wright Before the Court is appellant’s October 13, 2015 motion to extend time to file his notice of appeal. Because we conclude appellant did not provide a reasonable explanation for the need for an extension, we deny appellant’s motion and dismiss the appeal for lack of jurisdiction. Appellant seeks to appeal an order signed August 17, 2015 dismissing for want of jurisdiction his de novo appeal of a justice court judgment. Appellant did not file a motion or pleading extending the appellate timetable. Thus, appellant's notice of appeal from the county court’s judgment was due on or before September 16, 2015. The certificate of service on appellant’s notice of appeal states that the notice of appeal was mailed August 21, 2015, but both the notice of appeal filed in the trial court and the copy filed in this Court are file stamped September 21, 2015.1 For that reason the notice of appeal is not timely under rule 5 of the Texas Rules of Civil Procedure, the “mailbox rule,” because the enlargement of time granted by rule 5 applies only to pleadings received within ten days of the mailing date. TEX. R. CIV. P. 5. An extension of time to file a notice of appeal may be granted if an appellant files a notice of appeal within fifteen days after the deadline for timely filing a notice of appeal and files a motion complying with rule of appellate procedure 10.5(b). See TEX. R. APP. P. 26.3. Appellant’s notice of appeal was filed within this fifteen day grace period. Accordingly, by letter dated October 5, 2015, the Court directed appellant to file a motion for extension of time to file his notice of appeal that complied with rule 10.5(b). Appellant filed a motion for extension of time, but the motion did not comply with rule 10.5(b). Appellant’s motion requested additional time to file the notice of appeal because, “I show documents that I had my certificate and I renew my certificate every 5 Years. And the question was about my certificate. And the letter of notice of dismissal I do not receive this days.” He further stated: I totally disagree with decision on my case # CC-15-00027 on August 17,2015. This case only a question of law, which was answered by my correctly. I worked the school year 2012-2013 and the question was give me a certificate of August 15, 2013 and I give my certificate 2018 and it cover the years 2012-2013-20142015-2016-2017-and 2018. Note / By law no one can work as a teacher, if do not had a certificate. I renew my certificate every 5 years. Appellant’s explanation goes to the merits of his underlying claim and does not address the facts that reasonably explain his need for an extension. Rule 10.5(b)(2) requires that a motion for extension of time to file a notice of appeal must set forth the facts relied on to reasonably explain the need for an extension. TEX. R. APP. P. 10.5(b)(2)(A). The Texas Supreme Court has defined “reasonable explanation” to mean any plausible statement of circumstance indicating that failure 1 Moreover appellant’s motion to extend time to file notice of appeal does not include evidence of the date of mailing. TEX. R. CIV. P. 5 (document must be sent by first-class mail in properly addressed and stamped envelope; legible postmark affixed by United States Postal Service shall be prima facie evidence of date of mailing). –2– to file the notice of appeal within the required period was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance. Garcia v. Kastner Farms, Inc., 774 S.W.3d 668, 669 (Tex. 1989). Appellant’s motion does not satisfy this requirement. We deny appellant’s motion to extend time to file his notice of appeal. Without a timely filed notice of appeal, this Court lacks jurisdiction. TEX. R. APP. P. 25.1(b). Accordingly, we dismiss this appeal for lack of jurisdiction. 151149F.P05 /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE –3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT NOEL RUBIO, Appellant No. 05-15-01149-CV On Appeal from the County Court at Law No. 3, Dallas County, Texas Trial Court Cause No. CC-15-00027-C. Opinion delivered by Chief Justice Wright. Justices Lang-Miers and Stoddart participating. V. TEXAS WORKFORCE COMMISSION AND DALLAS ISD, Appellees In accordance with this Court’s opinion of this date, the appeal is DISMISSED for want of jurisdiction. It is ORDERED that appellees TEXAS WORKFORCE COMMISSION AND DALLAS ISD recover their costs of this appeal from appellant NOEL RUBIO. Judgment entered this 23rd day of October, 2015. –4–

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