NUMBER 13-26-00316-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE MATTER OF THE MARRIAGE OF
MALAKI POLITE HAWKINS AND HALE HORLEY HAWKINS
ON APPEAL FROM THE 480TH DISTRICT COURT
OF WILLIAMSON COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Silva, Peña, and Fonseca
Memorandum Opinion by Justice Silva
We handed down our memorandum opinion and judgment in this cause on June
4, 2026, dismissing the appeal for want of jurisdiction. Appellant Hale Horley Hawkins
filed a motion for rehearing and en banc reconsideration wherein he requested we
withdraw our memorandum opinion and judgment and reinstate the appeal. Among the
issues raised, appellant argued, among other things, that his appeal was wrongly
dismissed. Appellee Malaki Polite Hawkins filed a response. After examining and fully
considering the issues raised in appellant’s motion and appellee’s response, we deny appellant’s motion for rehearing. However, we withdraw our June 4, 2026 memorandum
opinion and judgment, and we substitute the following memorandum opinion and
accompanying judgment in their place.
I. BACKGROUND 1
This matter is before the Court on appellant’s motion for extension of time to file
notice of appeal and motion for extension of time to file brief.
On December 4, 2025, the trial court signed a final decree of divorce. On
December 10, 2025, appellant filed a postjudgment motion labeled as motion for new trial,
which stated that it is being filed “solely for the purpose of extending the appellate
timetable and is not filed to challenge the substance of the judgment or to request that it
be altered or set aside.” On March 9, 2026, appellant filed a notice of appeal attempting
to appeal the divorce decree in trial court cause number 24-0077-F480. See TEX. R. APP.
P. 26.1(a). On May 1, 2026, the Clerk of the Court notified appellant that it appeared that
the appeal was not timely perfected. Appellant was advised that the appeal would be
dismissed if the defect was not corrected within ten days from the date of receipt of the
notice. See id. R. 42.3(a), (c). On May 5, 2026, appellant filed a motion for extension of
time to file the appellate brief seeking an additional thirty days. On May 8, 2026, appellant
filed a motion for extension of time to file the notice of appeal. See id. R. 26.3.
II. STANDARD OF REVIEW AND APPLICABLE LAW
The Court is bound by the Texas Rules of Appellate Procedure. Absent a timely
1
This case is before the Court on transfer from the Third Court of Appeals pursuant to a docketequalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE §§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is “good cause” for the transfer). We are bound by the precedent of the transferring court to the extent that it differs from our own. See TEX. R. APP. P. 41.3.
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filed notice of appeal, this court lacks jurisdiction over the appeal. Baker v. Regency
Nursing & Rehab. Ctrs., Inc., 534 S.W.3d 684, 684 (Tex. App.—Corpus Christi–Edinburg
2017, no pet.). Generally, a notice of appeal is due within thirty days after the judgment
is signed. See TEX. R. APP. P. 26.1. If, within thirty days after the judgment is signed, any
party timely files a motion for new trial, the deadline to file a notice of appeal is extended
to ninety days after the date the judgment is signed. Id. R. 26.1(a); see TEX. R. CIV. P.
329b(a), (g).
“Any post[]judgment motion, which, if granted, would result in a substantive change
in the judgment as entered extends the time for perfecting the appeal.” Smith v. City of
Garland, 523 S.W.3d 234, 240 (Tex. App.—Dallas 2017, no pet.) (citing Gomez v. Tex.
Dep’t of Crim. Just., 896 S.W.2d 176, 177 (Tex. 1995)). To determine whether a
postjudgment motion extends appellate deadlines, courts look to the substance of the
document rather than its title or caption. Barry v. Barry, 193 S.W.3d 72, 74 (Tex. App.—
Houston [1st Dist.] 2006, no pet.). Texas Rule of Civil Procedure 320 allows a party to file
a motion for new trial and request that the judgment be set aside for good cause, provided
that the motion is in writing and signed by the party or his attorney. TEX. R. CIV. P. 320.
“A motion for new trial must, by its very nature, seek to set aside an existing judgment
and request relitigation of the issues.” Barry, 193 S.W.3d at 74 (citing Finley v. J.C. Pace
Ltd., 4 S.W.3d 319, 320 (Tex. App.—Houston [1st Dist.] 1999, no pet.)). If an instrument
does not meet these minimum requirements, it is not a motion for new trial. Id. (citing
Mercer v. Band, 454 S.W.2d 833, 836 (Tex. App.—Houston [14th Dist.] 1970, no writ)).
We are to construe the rules of appellate procedure reasonably and liberally so
that the right to appeal is not lost by imposing requirements not absolutely necessary to
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effectuate the purpose of a rule. See Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex.
1997). However, we are prohibited from enlarging the scope of our jurisdiction by
enlarging the time for perfecting an appeal in a civil case in a manner not provided for by
rule. See TEX. R. APP. P. 2; In re T.W., 89 S.W.3d 641, 642 (Tex. App.—Amarillo 2002,
no pet.).
III. ANALYSIS
While appellant filed a document labeled as a motion for new trial, we must look to
the substance contained in the document to determine whether the filing of the motion
effectively extended the deadline for filing a notice of appeal. See Barry, 193 S.W.3d at
74; Smith, 523 S.W.3d at 240; TEX. R. APP. P. 26.1(a). Appellant’s motion stated it was
filed “solely for the purpose of extending the appellate timetable and is not filed to
challenge the substance of the judgment or to request that it be altered or set aside.”
Appellant’s motion did not seek to set aside the final decree of divorce or relitigate any
issue already resolved by the trial court. See Barry, 193 S.W.3d at 74. In fact, appellant’s
motion stated precisely the opposite. If granted, appellant’s motion would not result in a
substantive change in the trial court’s judgment. See Smith, 523 S.W.3d at 240.
Consequently, we cannot conclude appellant’s motion qualifies as a motion for new trial,
nor any other postjudgment motion which could have extended appellant’s deadline to
timely perfect an appeal. See Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d
308, 313–14 (Tex. 2000) (noting “only a motion seeking a substantive change will extend
the appellate deadlines and the court’s plenary power under Rule 329b(g)” and that “a
timely filed postjudgment motion that merely seeks to correct clerical errors, such as
punctuation, grammar or misspellings, will not qualify under Rule 329b(g)”); Barry, 193
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S.W.3d at 74; Mercer, 454 S.W.2d at 836; TEX. R. APP. P. 26.1(a). Cf. Smith, 523 S.W.3d
at 240; Aero at Sp. Z.O.O. v. Gartman, 469 S.W.3d 314, 316 (Tex. App.—Fort Worth
2015, no pet.) (“[A]ny timely-filed motion seeking to vacate the trial court’s judgment, even
a motion asserting meritless grounds for vacating the judgment, constitutes a motion for
new trial that will extend the appellate timetable.”); Kashan v. McLane Co., No. 03-11-00125-CV, 2012 WL 2076821, at *2 (Tex. App.—Austin June 7, 2012, no pet.) (mem. op.)
(“A timely filed postjudgment motion that seeks a substantive change in the judgment will
extend both the trial court’s plenary jurisdiction and the deadline to perfect an appeal.”);
Matinee Media Corp. v. Falcon, No. 04-12-00133-CV, 2012 WL 3104530, at *3 (Tex.
App.—San Antonio Aug. 1, 2012, no pet.) (mem. op.) (concluding appellees’ motion to
enforce qualified as a “motion to modify under Rule 329(b)(g)” because it sought a
“substantive change” in the trial court’s dismissal order). 2
The judgment subject to appellant’s attempted appeal was signed on December
4, 2025. Because appellant failed to file a postjudgment motion that would extend the
appellate deadline, the rule providing a ninety-day extension to file a notice of appeal was
not applicable. Thus, appellant’s deadline to file his notice of appeal was thirty days after
the date the judgment was signed—which in this case is Monday, January 5, 2026, since
the thirtieth day fell on a Saturday. See TEX. R. APP. P. 4.1(a), 26.1. Appellant did not file
his notice of appeal until March 9, 2026. Therefore, appellant’s notice of appeal was not
filed timely under the appellate rules and was beyond the fifteen-day grace period during
which we may imply a timely motion to extend the time to perfect the appeal. See id. R.
2
Neither party argues that appellant’s motion for new trial qualifies as a deadline-extending motion.
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26.1, 26.3; Verburgt, 959 S.W.2d at 617. And although appellant did file a response to
the Court’s defect notice, he failed to convince this Court that we have jurisdiction over
his attempted appeal.
We acknowledge that “[t]he filing of a motion for new trial in order to extend the
appellate timetable is a matter of right.” Old Republic Ins. Co. v. Scott, 846 S.W.2d 832,
833 (Tex. 1993). However, Old Republic is not dispositive concerning whether appellant’s
December 10, 2025 postjudgment motion properly qualifies as a motion for new trial
because that case did not discuss the requirements for a postjudgment motion to qualify
as a motion for new trial, nor did it analyze whether the postjudgment motion in that case
sought to vacate the judgment or sought a substantive change in the judgment. See id.
We also note that Smith held that “[m]otions for new trial may be filed for the sole
purpose of extending the appellate timetable.” Smith, 523 S.W.3d at 240 (citing Rainier
Income Fund I, Ltd. v. Gans, 501 S.W.3d 617, 621–22 (Tex. App.—Dallas 2016, pet.
denied)). Smith cited to Rainier in support of its holding. However, Rainier merely held
that “one purpose of a motion for new trial is to extend the appellate timetable.” Rainier,
501 S.W.3d at 621. We read nothing in Rainier to support Smith’s “sole purpose” holding,
and therefore decline to follow it. See id. Furthermore, neither Smith nor Rainier dispense
with the requirements for a postjudgment motion to qualify as a motion for new trial. And,
in fact, Smith held that the postjudgment motion involved in that case met those
requirements. See Smith, 523 S.W.3d at 240 (“If granted, Smith’s motion for new trial
would ‘result in a substantive change in the judgment as entered.’” (quoting Gomez, 896
S.W.2d at 177)). Thus, Smith did not involve a postjudgment motion that was expressly
“not filed to challenge the substance of the judgment or to request that it be altered or set
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aside,” as here.
Rule 42.3 permits an appellate court, on its own initiative after giving ten days’
notice to all parties, to dismiss the appeal for want of jurisdiction or for failure to comply
with a requirement of the appellate rules. See TEX. R. APP. P. 42.3(a), (c). Because
appellant’s notice of appeal was untimely, we lack jurisdiction over the appeal. See Baker,
534 S.W.3d at 684. Accordingly, we deny appellant’s motion for rehearing and dismiss
the entire cause for want of jurisdiction. See id. R. 42.3(a).
CLARISSA SILVA
Justice
Delivered and filed on the
31st day of August, 2026.
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