The Quality of Mercy Is Not Strained, Except When It Comes to Late Notice of Appeal: A Proposal to Amend Texas Rules of Appellate Procedure 2 and 26.3

Spring 2017
Robert B. Gilbreath
The Appellate Advocate, State Bar of Texas Appellate Section Report

“A timely notice of appeal is jurisdictional only because we say it is.” So said Professor Dorsaneo during a conversation that ultimately made me want to write this article. We were talking about Texas Rules of Appellate Procedure 2 and 44.3. By the end of our discussion, I couldn’t stop thinking about the question, just what the heck makes a procedural requirement “jurisdictional”? And if a timely notice of appeal isn’t jurisdictional, then why are courts so uptight about it? Maybe our system ought to show mercy more often when a party excusably misses the deadline.

Before the 1997 revisions, Rule 2(a) stated: “These rules shall not be construed to extend or limit the jurisdiction of the courts of appeals, the Court of Criminal Appeals, or the Supreme Court as established by law.” Rule 2(b) permitted the courts of appeals and the Court of Criminal Appeals to suspend requirements and provisions of any rule on its own motion, but not to suspend requirements or provisions of the Code of Criminal Procedure. Rule 83 provided that a judgment was not to be affirmed or reversed or an appeal dismissed for “defects or irregularities, in appellate procedure, either of form or substance,” without allowing a party a reasonable time to correct or amend the defect or irregularity.

The 1997 revisions rewrote Rule 2 so that it now permits a court to suspend a rule’s operation in either a civil or criminal case. Newly added, however, was this proviso: “but a court must not construe this rule to suspend any provision in the Code of Criminal Procedure or to alter the time for perfecting an appeal in a civil case.” Rule 83 became Rule 44.3, which now states: “A court of appeals must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities.” 

Neither the Texas Constitution nor any statute set the deadline for filing a notice of appeal. Thus, before the 1997 revisions, an appellate court could—without violating any statute or constitutional provision—invoke Rule 83 and allow a reasonable time to correct a party’s failure to timely file a notice of appeal. After the 1997 revisions, a party’s ability to file a late notice of appeal is limited to 15 days after the due date under Rule 26.3. Beyond that period, a court can no longer invoke former Rule 83’s successor—Rule 44.3—to allow a party to file a late notice of appeal without violating other rules of procedure; namely Rules 2 and 26.3. 

Current Rule 2 seems to reflect the idea that filing a timely notice of appeal is a “jurisdictional” requirement. See Johnson v. State, 747 S.W.2d 568, 568 (Tex. App.—Houston [14th Dist.] 1988, no pet.) (holding that a timely filed notice of appeal is jurisdictional and that an appellate court cannot employ Rule 83 to expand the court’s jurisdiction and thereby entertain the appeal). Yet if the requirement is “jurisdictional,” then why does Rule 26.3 permit a court to sideline the timely notice of appeal requirement? If a requirement is truly “jurisdictional,” then how can it be changed or modified by a court-created rule of procedure? The answer depends on the meaning of “jurisdictional.” 

The question of whether a procedural requirement—such as the time for filing a notice of appeal—is jurisdictional was given extensive, scholarly treatment by Rutgers Law School Professor Perry Dane in a 1994 article. See Perry Dane, Jurisdictionality, Time, and the Legal Imagination, 23 Hofstra L. Rev. 1 (1994); see also Perry Dane, Sad Time: Thoughts on Jurisdictionality, the Legal Imagination, and Bowles v. Russell, 102 Nw. U. L. Rev. Colloquy 164 (2008). The article provides ample support for the conclusion that procedural time limits are rarely “jurisdictional” under an appropriate understanding of that term. Calling a time limit jurisdictional is often nothing more than “a doctrinal fig-leaf for enforcing a time limit literally.” Id. at 97. In the end, said Professor Dane,  “The problem with the doctrine of jurisdictional time limits is the pretense that a distinctive legal idea—jurisdiction—whose real import is that it subordinates state institutions to law rather than the other way around, would yield a result that cuts legal language off from the deepest resources that law can provide to fix its own meaning.” Id. at 135.

The Thirteenth Court of Appeals anticipated Professor Dane’s conclusions when in 1978 it said that jurisdiction “is distinguished from procedure in that ‘jurisdiction’ (of the subject matter) relates to the power of a court to entertain the suit, consider the merits and render a valid judgment, while ‘procedure’ relates to the form or manner in conducting the suit.” Byke v. City of Corpus Christi, 569 S.W.2d 927, 931 (Tex. Civ. App.—Corpus Christi 1978, writ ref’d n.r.e.). The court observed, “The Texas Rules of Civil Procedure do not have any bearing on the jurisdiction of a court concerning the subject matter of a lawsuit.” * * * Jurisdiction in civil matters of the several courts of this State is allocated by our State Constitution and the statutes consistent therewith, not by the Rules of Civil Procedure.” Id.

Suffice it to say, a timely notice of appeal is not truly “jurisdictional” under the better view of that term’s meaning. It is not a statutory or constitutional requirement, and it relates only to the manner of conducting the appeal. Instead of some holy writ, the deadline for filing a notice of appeal is simply a matter of the Texas Supreme Court’s judgment as to how much time a party ought to have to file a notice of appeal. 

Rule 26.1’s deadlines for filing the notice of appeal, and Rule 26.3’s 15-day grace period seem quite rational. But what about Rule 2’s proviso that a court cannot alter the time for perfecting an appeal in a civil case? It certainly seems inconsistent with the spirit of Rule 44.3, which provides that “A court of appeals must not affirm or reverse a judgment or dismiss an appeal for formal defects or irregularities in appellate procedure without allowing a reasonable time to correct or amend the defects or irregularities.”

Rule 26.3’s 15-day grace period is a good starting point for dealing with excusable failures to timely file the notice of appeal. But courts should have greater flexibility to dispense mercy. It doesn’t take much imagination to conceive of plausible scenarios where the failure to file the notice of appeal within 15 days after the deadline ought to be excused—solo practitioner hospitalized, etc. See, e.g., In re W.J.B., No. 11-03-00407-CV, 2004 WL 1174875, at *2 (Tex. App.—Eastland 2004, no pet.) (“The circumstances of this proceeding present a compelling case for permitting appellant to pursue an out-of-time appeal of the associate judge’s recommendations. * * * However, we may not enlarge the time for perfecting appeals.”). If Rules 2 and 26.3 were modified to grant this flexibility, the Texas Supreme Court would soon craft an analytical framework, to be applied on a case-by-case basis, for deciding whether an extension is justified, just as it has for equitable motions for new trial and bills of review. 

The 1997 revisions to the rules of appellate procedure were intended to modernize the rules. And even long before those amendments, the Texas Supreme Court saw the need to liberalize the rules. “The 1981 amendments [to the rules of civil procedure] dealt with a number of the procedural rules relating to the time designated for taking various steps required for appellate review of a judgment. The laudable goal of these revisions was to eliminate, insofar as practical, the jurisdictional requirements which sometimes resulted in disposition of appeals without consideration of the merits.” B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 861 (Tex. 1982) (emphasis original). 

Despite its rhetoric, the supreme court was unwilling in B.D. Click to hold that an appellate court could enlarge the time for filing the record. B.D. Click, however, was decided 38 years ago. In these more progressive times, cases should rarely be disposed of based on a procedural lapse by a party’s attorney. Rule 2 should be amended to remove its proviso that a court cannot alter the time for perfecting an appeal. And, if necessary, Rule 26.3 should be amended to allow courts greater flexibility to allow a late notice of appeal. Mercy should not carry a 15-day expiration date.

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