INMATE WAS ENTITLED TO EXTENSION OF TIME TO FILE NOTICE OF APPEAL

Houser vs. McElveen, No. 06-0504 (Tex. Jan. 11, 2008)(per curiam)
(appellate procedure, timeliness of notice of appeal) (prisoner's appeal in civil case should not have been
dismissed as untimely because he was entitled to extension of time to file notice of appeal)  

Houser was entitled to an extension of time in which to file his notice of appeal, and
thus the court of appeals should not have dismissed the appeal. Accordingly, we grant
the petition for review, and without hearing oral argument, we reverse the court of
appeals’ judgment and remand the case for further proceedings.

BRUCE WAYNE HOUSER v. KENNETH W. MCELVEEN, ET AL.; from Jackson County; 13th district
(13-05-00426-CV, ___ S.W.3d ___, 02/09/06)   
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.

Terms:  pro se litigants | inmate litigation | suits by prisoners | jailhouse lawyers | TDCJ-ID

Other Supreme Court decisions in pro se and prisoner suits
Higgins v. Randall County's Sheriff's Office (Tex. May 16, 2008)(O'Neill) (sufficiency of affidavit of indigence)
Houser v. McElveen, No. 06-0504 (Tex. Jan. 11, 2008)(per curiam)
(appellate procedure, timeliness of notice of appeal, prisoner suit)
Springer v. Springer, No. 06-0382, 240 SW3d 871 (Tex. Nov. 2, 2007)(per curiam)
(timelines for appeal, affidavit of indigence)
Sprowl v. Payne, No. 06-0533 (Tex. Nov. 2, 2007)(per curiam)(appellate procedure, payment for record,
indigence)
Ramos v. Richardson, No. 06-0336, 228 SW3d 671 (Tex. Jun. 29, 2007)(per curiam)
(prisoner suit, timeliness of notice of appeal)

Also see --->
Other Recent Texas Supreme Court Opinions | Texas Opinions Homepage |
Also see
Cases Decided by the Texas Supreme Court in 2007 with links to opinions |

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Houser v. McElveen (Tex. 2008)

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Petitioner Bruce Wayne Houser, a pro se inmate, sued for mandamus compelling respondent Kenneth
McElveen, the county clerk of Jackson County, to probate Houser’s father’s will. The trial court dismissed the
petition, and Houser asserts, without challenge, that he deposited his notice of appeal in the prison mail 35
days later. The court of appeals received it on the 46th day after the judgment was signed and dismissed the
appeal as not having been timely perfected. ___ S.W.3d ___ (Tex. App.–Corpus Christi 2006) (per curiam).

The notice of appeal was required to be filed within 30 days of the judgment, Tex. R. App. P. 26.1, but the
court of appeals should have extended that time if, within the next 15 days, Houser filed his notice of appeal
and a motion for extension with a reasonable explanation, Tex. R. App. P. 10.5(b), 25.1(a), 26.3. The notice of
appeal was deemed filed on the day he mailed it, since it was received one day after the 15-day deadline,
Tex. R. App. P. 9.2(b), Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex. 2007) (per curiam), and a motion for
extension was thereby implied, Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).

The question, then, is whether there is “any plausible statement of circumstances indicating that failure to file
within the [specified] period was not deliberate or intentional, but was the result of inadvertence, mistake, or
mischance.” Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977).

In his notice of appeal, and in his petition here without challenge, Houser states that he mailed a motion for
new trial nine days after the judgment, and a copy of a transmittal letter bearing that date is attached. There is
no motion for new trial in the trial court’s record, but Houser could reasonably have believed that the clerk
would receive it within three weeks of when he says he mailed it. An inmate who does everything in his power
to satisfy timeliness requirements may not be penalized for the error or tardiness of prison officials. See
Williams v. T.D.C.J.-I.D., 142 S.W.3d 308, 309-310 (Tex. 2004) (per curiam). If a motion for new trial had been
received within 30 days of the judgment, Houser’s notice of appeal would have been timely filed. Tex. R. App.
P. 26.1(a)(1). This plausible statement of circumstances indicates that Houser’s failure to timely file his notice
of appeal was not intentional but inadvertent. See Hone v. Hanafin, 104 S.W.3d 884, 886 (Tex. 2003) (per
curiam).

Houser was entitled to an extension of time in which to file his notice of appeal, and thus the court of appeals
should not have dismissed the appeal. Accordingly, we grant the petition for review, and without hearing oral
argument, we reverse the court of appeals’ judgment and remand the case for further proceedings. Tex. R.
App. P. 59.1.

Opinion delivered: January 11, 2008