Wallace v. Texas Emp. Ins. Ass'n, 21088

• Decision Date: 28 September 1981
• Docket Number: No. 21088,21088
• Parties: Troy WALLACE, Appellant, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellee.
• Court: Texas Court of Appeals

Page 268

624 S.W.2d 268

Troy WALLACE, Appellant, v. TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellee.

No. 21088.

Court of Appeals of Texas, Dallas.

Sept. 28, 1981.

Rehearing Denied Oct. 15, 1981.

John D. Sloan, Henderson, for appellant.

Joseph W. Wolfe, Henderson, Bryant & Wolfe, Sherman, for appellee.

Before GUITTARD, C. J., and STOREY and STEPHENS, JJ.

STOREY, Justice.

This is appellee's motion to affirm on certificate for reason of late filing of the transcript. Appellant opposes the motion, and counters with his own motion to compel filing of the transcript and a motion to extend time to file the statement of facts. We consider all motions together in this opinion, deny the motion to affirm on certificate, grant the motion to compel filing of the transcript and also grant the motion for extension of time to file the statement of facts.

On December 3, 1980, a final judgment was signed in this case, and the court overruled a timely motion for new trial on February 27, 1981. Appellant perfected his appeal by filing an affidavit of inability to pay costs on March 4, 1981, a contest to which was overruled on March 27, 1981. Tex.R.Civ.P. 363. Because appeal was perfected after January 1, 1981, we are governed by the amendments of the Texas Rules of Civil Procedure made effective on that date. Accordingly, applying the 100-day deadline of rule 386 for filing of the transcript and statement of facts when a motion for new trial is filed, the record was due on March 13, 1981. The transcript was transmitted to the clerk of this court on May 5, 1981, and was held for filing but not filed. The statement of facts has not yet been tendered for filing. These motions followed.

We first consider appellee's motion for affirming on certificate under rule 387 of the Texas Rules of Civil Procedure. Rule 387 authorizes the appellate court on motion by appellee to affirm the judgment of the trial court for failure of the appellant to comply with any requirement of the rules, including failure to file the transcript. Our question is whether by rule 387 and the other provisions of the rules appellee has the absolute right to have the judgment affirmed on the grounds that the transcript was not filed within the 100-day period provided by rule 386 and no motion to extend that period was made within the fifteen days allowed by rule 21c.

We hold that there is no absolute right to affirmance under the amended rules. Under the former rules the appellee had such an absolute right. Pollard v. American Hospital and Life Ins. Co., 472 S.W.2d 116 (Tex.1971); Matlock v. Matlock, 151 Tex. 308, 249 S.W.2d 587 (1952). Consequently, compliance with the time requirements of the rules was formerly regarded as essential to appellate jurisdiction. Maxi-Burger, Inc. v. Nasa Veterinary Clinic, Inc., 593 S.W.2d 765 (Tex.Civ.App.-Houston (1st Dist.) 1979, no writ); Cuellar v. Cuellar, 519 S.W.2d 531, 532 (Tex.Civ.App.-Corpus Christi 1975, writ dism'd); cf. Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956, 958 (1943) (interlocutory appeal under rule 385). The purpose of the amendment, effective January 1, 1981, was to abolish the harsh jurisdictional limitation applied in these cases. Barrow, Appellate Procedure Reforms, 12 St. Mary's L.J. 615, 616, 625 (1981). Instead, the appellate court was given responsibility to manage and minimize delay in the appellate process without disposition unrelated to the merits. To this end, rule 386 provides that "(f)ailure to file either the transcript or the statement of facts within (the time allowed) shall not affect the jurisdiction of the court or its authority to consider material filed late, but shall be grounds for dismissing the appeal, affirming the judgment appealed from, disregarding materials filed late, or applying presumptions against the appellant, either on motion or in the court's own motion, as the court shall determine." (Emphasis added).

We interpret this rule as giving the appellate court discretion to consider untimely material or to refuse to consider it. This interpretation is confirmed by other amendments. Rule 387, which formerly dealt only with affirmance on certificate for failure to file the transcript within the time allowed, is now a general rule providing the procedure for dismissal or affirmance "for failure of the appellant to comply with any requirements of these rules or any order of the court." Likewise, rules 389 and 389a have been amended to delete the requirement that the clerk of the appellate court determine whether the transcript and statement of facts have been tendered for filing within the proper time. The supreme court explains this change in rule 389 in the following note accompanying this amendment: "Since filing the transcript is no longer a matter of jurisdiction, references to the required time for filing the record are deleted." A similar explanatory note accompanies the amendment to rule 389a.

The principal problem posed by these amendments is their effect on rule 21c, which requires that an extension may be granted if a motion reasonably explaining the need is filed within fifteen days of expiration of the period prescribed by rule 386. We see no conflict with rule 21c. If the appellant files a motion complying with rule 21c, he is entitled to the extension; if the appellate court denies it, the denial may be reviewed by the supreme court. Embry v. Bel-Aire Corp., 502 S.W.2d 543 (Tex.1973). It does not follow, however, that if the motion is not filed within the fifteen-day period prescribed by rule 21c, the appellate court has no jurisdiction and cannot consider a record filed late. Under amended rule 386, the court may exercise its discretion by considering the late-filed record or it may decline to do so, as it shall determine.

The principal obstacle to this interpretation is rule 437, which provides as follows:

A judgment shall not be affirmed or reversed or an appeal dismissed for defects or irregularities in appellate procedure, either of form or substance, without allowing a reasonable time to correct or amend such defects or irregularities, provided the court may make no enlargement of time prohibited by Rule 5 nor any enlargement of the time for filing transcript and statement of facts except pursuant to Rule 21c.

This rule also was amended effective January 1, 1981, but only by inserting the word "except," an obvious omission from the rule as it stood previously. Rule 437 was not amended to conform to the amendments of rule 386 and 387. Consequently, although rule 386 provides that failure to file the record within the time prescribed "shall not affect the jurisdiction of the court or its authority to consider material filed late," rule 437 continues to provide that the court "shall make no enlargement of time ... for filing transcript and statement of facts except pursuant to Rule 21c." In our opinion, rules 387 and 437 are in conflict.

The only possibility of reconciling these apparently conflicting provisions is by an interpretation that would nullify the 1981 amendments to...