Robert J. Salazar and Elia Salazar v. HP Texas I LLC Dba HP Texas LLC, HPA Texas Sub 2016-1 LLC, Ser Texas LLC and Pathlight Property Management Co. ( 2021 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTION TO EXTEND TIME
Appellate case name: Robert J. Salazar and Elia Salazar v. HP Texas I LLC d/b/a HP
Texas LLC, HPA Texas Sub 2016-1 LLC, Ser Texas LLC, and
Pathlight Property Management Co.
Appellate case numbers: 01-19-00926-CV
Trial court case number: 2019-17589
Trial court: 127th District Court of Harris County
Appellants Robert J. Salazar and Elia Salazar have filed an unopposed motion to
extend time to file a motion for en banc reconsideration. See TEX. R. APP. P. 49.9. The
Court’s memorandum opinion and judgment issued on July 8, 2021. Appellants filed two
timely motions to extend time to file a motion for rehearing, which the Court granted.
Appellants then filed a timely motion for rehearing, which the Court denied on November
2, 2021. On November 8, 2021, appellants filed the motion to extend time to file a motion
for en banc reconsideration.
At the time the judgment issued in this appeal, a party could file a motion for en
banc reconsideration either within 15 days after a judgment issues or, when permitted,
within 15 days after the Court denies the party’s last timely filed motion for rehearing or
for en banc reconsideration. FORMER TEX. R. APP. P. 49.7. After judgment issued in this
appeal but before appellants filed their motion for rehearing, the Texas Supreme Court and
the Texas Court of Criminal Appeals issued a joint order amending the Texas Rules of
Appellate Procedure to clarify, in part, that a “motion for en banc reconsideration must be
filed by the deadline for filing an initial motion for rehearing under subdivision 49.1.” See
Final Approval of Amendments to Texas Rules of Appellate Procedure, Misc. Docket 21-
9110, at 10 (Tex. Sept. 13, 2021); Final Approval of Amendments to Texas Rules of
Appellate Procedure, Misc. Docket 21-003 (Tex. Crim. App. Sept. 13, 2021). This joint
order specifies that the amended rules are effective as of October 1, 2021, but it does not
state whether the amended rules apply to all appeals or only to appeals filed after (or in
which judgment issued after) the effective date of October 1.
As of October 1, 2021, Texas Rule of Appellate Procedure 49.5 requires a party to
file a motion for en banc reconsideration within the time for filing a motion for rehearing
under Rule 49.1, that is, within 15 days after the court of appeals renders judgment. TEX.
R. APP. P. 49.5; see TEX. R. APP. P. 49.1. Amended Rule 49.5 no longer allows a party to
file a motion for en banc reconsideration within 15 days after the Court denies the party’s
last timely filed motion for rehearing or for en banc reconsideration. TEX. R. APP. P. 49.5.
The rule for motions to extend time (Rule 49.8) was renumbered to Rule 49.9, but the
language was not amended. Nevertheless, the effect of the amendments to Rule 49.9 means
that motions to extend time to file motions for en banc reconsideration must be filed much
earlier than before the amendments.
In this case, Rule 49 was amended after judgment issued in this appeal but before
appellants filed their motion for rehearing. If the former rules apply, appellants’ motion to
extend time and any subsequent motion for en banc reconsideration would be timely
because the deadline runs either from the date the judgment issued or the date the Court
overruled appellants’ motion for rehearing. See FORMER TEX. R. APP. P. 49.7 If, however,
the amended rules apply, these motions would be untimely because the deadline runs only
from the date judgment issued. See TEX. R. APP. P. 49.5.
In this unique scenario, we conclude that former Rule 49.7 governs appellants’
motion for en banc reconsideration and, in effect, their motion to extend time to file the
motion for en banc reconsideration. See Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex.
1997) (“This Court has never wavered from the principle that appellate courts should not
dismiss an appeal for a procedural defect whenever any arguable interpretation of the Rules
of Appellate Procedure would preserve the appeal.”). The Court’s plenary power is
governed by Rule 19, which provides us with jurisdiction over this appeal for thirty days
after overruling appellants’ motion for rehearing, or until December 8, 2021. TEX. R. APP.
P. 19.1(b). On our own initiative, the Court may for good cause suspend a rule’s operation
in a particular case and order a different procedure. TEX. R. APP. P. 2. Because appellants
followed the rules in effect at the time judgment issued in this appeal and because the
opposite conclusion would unfairly deprive appellants of an opportunity to file a motion
for en banc reconsideration, we find good cause exists to suspend operation of Rule 49.5,
as amended effective October 1, 2021, in this appeal.
Accordingly, the Court grants appellants’ motion to extend time to file a motion for
en banc reconsideration. Appellants shall file any motion for en banc reconsideration no
later than December 17, 2021.
NO FURTHER EXTENSIONS WILL BE GRANTED ABSENT
EXTRAORDINARY CIRCUMSTANCES.
It is so ORDERED.
Judge’s signature: /s/ April L. Farris
 Acting individually  Acting for the Court
Date: November 23, 2021