IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 06-0454

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Tony Hernandez and = Gary=20 Gibson, Petitioners,

National = Restoration=20 Technologies, L.L.C., Travelers Property Casualty Insurance Company and=20 Travelers Lloyds of Texas Insurance Company, Respondents

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On Petition for Review from = the

Court of Appeals for the Fourteenth = District=20 of Texas

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PER = CURIAM

Petitioners=20 Tony Hernandez and Gary Gibson (collectively =93Hernandez=94) allege, = and=20 Respondents concede, that the court of appeals erroneously dismissed = Hernandez=92s=20 appeal as untimely due to a mistaken belief that the Harris County = District=20 Clerk=92s Office was open for business on January 2, 2006.

An = appeal is=20 perfected when written notice is filed with the trial court clerk. Tex. R. App. P. 25.1(a). = Notice is also=20 to be filed with the appropriate court of appeals. Tex. R. App. P. 25.1(e). When = a motion=20 for new trial has been filed, as here, a notice of appeal must be filed = with the=20 trial court clerk within ninety days of the signing of the judgment. = Tex. R. App. P. 26.1(a)(1). = When a=20 filing deadline falls on a holiday or a day in which the district = clerk=92s office=20 is closed or inaccessible, the filing deadline is automatically extended = until=20 the end of the next day when the district clerk=92s office is open and = accessible.=20 Tex. R. App. P. = 4.1(b).

Here, the=20 ninety day filing deadline fell on New Year=92s Day. The court of = appeals reopened=20 from the holidays on January 2 but the Harris County District Clerk=92s = Office was=20 not open until January 3. Thus, when Hernandez=92s notice of appeal = was filed=20 with the district clerk and the court of appeals on January 3, the = filing was=20 timely. However, the court of appeals believed the appropriate deadline = to be=20 January 2, not realizing that the district clerk=92s office was closed = that day.=20 On March 2 the court of appeals ordered Hernandez, pursuant to Texas = Rules of=20 Appellate Procedure 26.3 and 10.5(b), to file a formal motion to extend = time=20 with an explanation as to why his notice of appeal was untimely.[1] Hernandez=92s counsel failed = to respond=20 to this order and on March 30 the court of appeals dismissed = Hernandez=92s appeal=20 for want of jurisdiction.

Because=20 Hernandez=92s notice of appeal was timely, Texas Rules of Appellate=20 Procedure 26.3 and 10.5(b) did not apply and Hernandez was not = required to=20 explain the timing of his notice of appeal. Accordingly, we grant the = petition=20 for review, and without hearing oral argument, we reverse the court of = appeals=92=20 judgment. The case is remanded to the court of appeals to reinstate = Hernandez=92s=20 appeal.

OPINION=20 DELIVERED: December 22, 2006

^[1] In Verbugt v. Dorner, this Court held = that a=20 motion for extension of time is necessarily implied when the perfecting=20 instrument is filed after the ninety day period allowed by Rule 26.1 but = within=20 the fifteen day grace period for which the appellant would be entitled = to move=20 to extend the filing deadline. 959 S.W.2d 615, 617 (Tex. 1997) = (discussing the=20 predecessor to Rule 26).