In THE INTEREST OF S v. a MINOR CHILD v. the State of Texas

Supreme Court of Texas
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No. 23-0686
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In the Interest of S.V., a Minor Child

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On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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PER CURIAM

Texas Rule of Appellate Procedure 26.3 authorizes an appellate
court to extend the time to file a notice of appeal if, within 15 days of the
deadline, the party files the notice of appeal in the trial court and files a
motion complying with Rule 10.5(b) in the appellate court. Rule 10.5(b)
requires the motion to include, among other things, “the facts relied on
to reasonably explain the need for an extension.” TEX. R. APP.
P. 10.5(b)(2)(A); 10.5(b)(1)(C).
In this context, a reasonable explanation includes “any plausible
statement of circumstances indicating that failure to file within the
sixty-day 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) (applying Rule 26.3’s predecessor). The
“proper focus . . . is on a lack of deliberate or intentional failure to
comply.” Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex.
1989). “Any conduct short of deliberate or intentional noncompliance
qualifies as inadvertence, mistake or mischance . . . .” Id.
Venky Venkatraman, a pro se litigant, missed the deadline to file
a notice of appeal but filed a Rule 26.3 motion within the time permitted
by the rule. His explanation was that he mistakenly believed a notice
of appeal was not required until after the trial court ruled on his
post-judgment motions. The court of appeals denied the Rule 26.3
motion and dismissed the appeal. Because all indications are that
Venkatraman’s mistaken understanding of the notice-of-appeal
deadline was just that—a mistake—and not a deliberate failure to
comply with the rules, his Rule 26.3 motion should have been granted.
We therefore reverse the court of appeals’ judgment and remand the
case to that court.
The relevant factual and procedural background is
straightforward. Jyoti Masurekar sought to enforce a child-support
order against Venkatraman, her ex-husband. On December 28, 2022,
the trial court rendered judgment for Masurekar. On January 9, 2023,
Venkatraman, proceeding pro se, filed a “Motion for Judgment Nunc Pro
Tunc or to Reform Judgment.” On January 27, he filed a “Motion to
Modify Judgment or for Reconsideration.” After a hearing, the trial
court denied these motions on April 3, 2023.
The next day, April 4, Venkatraman filed a notice of appeal. His
motions to modify the judgment had expanded his notice-of-appeal
deadline to 90 days after the judgment was signed. See TEX. R. APP.
P. 26.1(a). However, because the judgment was signed on December 28,
2022, he had already missed the 90-day deadline by seven days. After

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court staff notified him of his error, Venkatraman timely filed a
Rule 26.3 motion in the court of appeals, in which he explained that he
waited for rulings on his post-judgment motions before immediately
filing his notice of appeal.
The court of appeals denied the motion. ___ S.W.3d ___, 2023 WL
4247370, at *1 (Tex. App.—Dallas June 29, 2023). It correctly recited
the legal standard for granting an extension but concluded that
Venkatraman’s “conscious delay” in filing while waiting for a ruling on
his post-judgment motions was not a reasonable explanation. Id. (citing
Daoudi v. Klalib, No. 05-21-00145-CV, 2021 WL 1660644, at *1 (Tex.
App.—Dallas Apr. 28, 2021, no pet.)). Venkatraman, still pro se, filed a
petition for review in this Court.
The court of appeals equated Venkatraman’s conscious decision
to wait to file his notice of appeal until the trial court ruled on his
post-judgment motions with a conscious or strategic decision to let the
notice-of-appeal deadline pass. But the former is not necessarily the
latter. As we have held before, the “proper focus . . . is on a lack of
deliberate or intentional failure to comply” with the rules, and “[a]ny
conduct short of deliberate or intentional noncompliance qualifies as
inadvertence, mistake or mischance.” Garcia, 774 S.W.2d at 670. There
is no indication that Venkatraman made a strategic choice or otherwise
sought any advantage by waiting until the trial court ruled on his
post-trial motions. To the contrary, all signs point to a genuine
misunderstanding of the deadlines by a pro se litigant.
That is not to say that Venkatraman’s lack of an attorney alters
the legal standard. “Pro se litigants are not exempt from the rules of

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procedure.” Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005). The
“reasonable explanation” standard looks to the subjective intentions of
the person responsible for the missed deadline, whether or not that
person is a lawyer. There is no claim or evidence here that
Venkatraman intended to violate the rule or to gain an advantage by
waiting for the trial court to rule on his post-judgment motions.
Attorneys may make genuine mistakes when calculating
deadlines, and when they do, Rule 26.3 provides a brief, fifteen-day
reprieve. 1 Pro se litigants unaware of or mistaken about appellate
deadlines are entitled to the same treatment. 2 Whether a party is
represented or pro se, courts should ask whether the missed deadline
resulted from a genuine mistake rather than from a deliberate decision
to let the deadline pass. Courts of appeals applying this standard should
do so in light of the general principle that “[w]e construe the Rules of
Appellate Procedure liberally, so that decisions turn on substance rather
than procedural technicality.” Garza v. Garcia, 137 S.W.3d 36, 38 (Tex.

1 See Hone v. Hanafin, 104 S.W.3d 884, 887 (Tex. 2003) (“[W]e are
unwilling to hold that a party confused about the law is prohibited from having
such confusion serve as a reasonable explanation[.]”); see also Vandemark v.
Jimenez, No. 01-09-00168-CV, 2010 WL 1241287, at *3 (Tex. App.—Houston
[1st Dist.] Apr. 1, 2010, no pet.) (attorney’s miscalculation of deadline was
reasonable explanation); Monroy v. Estrada, No. 08-03-00381-CV, 2004 WL
1426961, at *3 (Tex. App.—El Paso June 24, 2004, no pet.) (attorney’s
misunderstanding of the date from which the deadline would run was
reasonable explanation); In re B.G., 104 S.W.3d 565, 567 (Tex. App.—Waco
2002, no pet.) (per curiam) (attorney’s mistaken belief that a motion for new
trial extended the notice-of-appeal deadline was a reasonable explanation).
2 It appears to the Court that Venkatraman may be an attorney licensed

by the State of New York. Whether or not that is the case, the record contains
no indication that he missed the original notice-of-appeal deadline because of
a conscious or deliberate decision to do so, rather than because of a mistake.

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2004). Whether the question is compliance with Rule 26.3 or with any
other procedural requirement, “appellate courts should reach the merits
of an appeal whenever reasonably possible.” Perry v. Cohen, 272 S.W.3d
585, 587 (Tex. 2008).
In the absence of any argument or evidence that Venkatraman
intentionally disregarded the rules or sought some advantage by waiting
for the trial court to decide his post-judgment motions, his unrebutted
explanation that he simply misunderstood the rules satisfies the
requirements of Rules 10.5 and 26.3. The court of appeals should
therefore have granted his motion for an extension of time to file his
notice of appeal.
For the foregoing reasons and without hearing oral argument, see
TEX. R. APP. P. 59.1, we grant the petition for review, reverse the court
of appeals’ judgment, and remand to the court of appeals for further
proceedings.

OPINION DELIVERED: August 30, 2024

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