Before BOYD, C.J., and QUINN and REAVIS, JJ.

Appellant Albert Duane Montoya has filed a motion for rehearing of our prior opinion overruling his motion for extension of time to file his notice of appeal and dismissing the appeal for want of jurisdiction. We did so because, although appellant is required to reasonably explain his need for an extension of time ⁽¹⁾ by a plausible statement indicating that his failure to comply with the deadline was not deliberate or intentional, he merely stated that he was attending CLE courses and on vacation. We found his explanation did not provide sufficient information from which we could determine whether he deliberately chose to file the notice of appeal late after his CLE courses and vacation had been completed. For the reasons set forth, we grant appellant's motion for rehearing, set aside our dismissal for want of jurisdiction, reinstate the case, and grant the motion for extension of time.

In his motion for rehearing, appellant provides additional information from which he seeks that we make a determination that his delay was not intentional or deliberate. Counsel for appellant explains that he was appointed by the court to represent appellant in his appeal on April 16, 2002. From April 17, 2002, through April 30, 2002, he asserts that he was at his dentist's office on an almost daily basis undergoing the extraction of 25 teeth, including impacted teeth, the removal of supporting bone mass, and treatment for resulting complications. He refers to this as "vacation" time. In spite of these dental treatments, he alleges that he discussed the merits of the appeal with the trial attorney and appellant. Nevertheless, he states that additional investigation was necessary to determine whether a motion for new trial should be filed.

On April 30, 2002, he traveled to Austin, Texas, to attend the Criminal Appeals Conference, which continued through May 3, 2002. The arrangements for this travel had been made prior to April 16. He also had plans prior to that date to attend a marriage dissolution seminar in Austin on May 9 and 10. Thus, he alleges, he was traveling or attending seminars from April 30 through May 12. On May 15, 2002, he had to attend previously scheduled depositions.

The decision not to file a motion for new trial was made while counsel, who is a solo practitioner, was out of town without access to reference or research material. He assumed that, since a request for findings of fact and conclusions of law had been filed, that filing would extend the time for filing the notice of appeal as in civil cases. His mistake was not discovered until May 31, at which time the notice of appeal was filed with a request for extension of time. Counsel has executed a verification of the facts contained in the motion for rehearing, and has also attached a certified copy of his request for findings of fact and conclusions of law.

Although appellant did not provide any of this information in his original request for extension of time, it is within the discretion of the appellate court whether to consider new matters raised in a motion for rehearing. Perkins v. State, 905 S.W.2d 452, 453 (Tex.App. --El Paso1995, pet. ref'd). The facts and circumstances relayed by appellant show that the failure to timely file his notice of appeal was not the result of deliberate or intentional conduct, but the result of inadvertence, mistake or mischance. See Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989). We believe the interests of justice will be served in this instance by consideration of the facts set forth in appellant's motion for rehearing, and we will exercise our jurisdiction to consider those matters. Finding that appellant has provided a reasonable explanation for his failure to timely file his notice of appeal, we hereby grant appellant's motion for rehearing, set aside our dismissal, reinstate the case, and grant the motion for extension of time to file his notice of appeal to May 31, 2002, the date received. The clerk's and reporter's records are due 30 days from the date of this opinion.

John T. Boyd

Chief Justice

Do not publish.

1. See Texas Rules of Appellate Procedure 26.3 and 10.5(b).