law-appellate deadline | untimely notice of appeal | motion for extension of time to file notice of appeal |
late notice of judgment - extension of time to appeal | DWOJ | preservation of error for appellate review |
appealing errors in admission or exclusion of evidence
GENERAL RULES GOVERNING TIMELINESS OF NOTICE OF APPEAL
Absent a timely filed notice of appeal from a final judgment or recognized interlocutory order, we do not
have jurisdiction over an appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).
The notice of appeal must be filed within thirty days after the judgment or other appealable order is signed
when appellant has not filed a timely motion for new trial, motion to modify the judgment, motion to
reinstate, or request for findings of fact and conclusion of law. See TEX. R. APP. P. 26.1.
A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice
of appeal beyond the time allowed by Rule 26.1, but within the fifteen-day grace period provided by Rule
26.3 for filing a motion for extension of time. See id. 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617-18
(1997) (construing the predecessor to rule 26.1).
When a party adversely affected by the judgment does not receive notice within twenty days of judgment,
the period for filing the appeal begins to run from the date the party received notice, provided no more
than ninety days have elapsed since the signing of the judgment or other appealable order. See TEX. R.
CIV. P. 306a(4); TEX. R. APP. P. 4.2(a)(1). This rule expressly provides that "in no event shall such
periods begin more than ninety days after the original judgment or other appealable order was signed.”
In the instant case, appellant contends that he did not receive notice of the severance order until more
than a year after it was rendered. Accordingly, rule 306a(4) is inapplicable. See Levit v. Adams, 850 S.W.
2d 469, 470 (Tex. 1993); Jon v. Stanley, 150 S.W.3d 244, 248 (Tex. App.–Texarkana 2004, no pet.).
Moreover, even if it were to apply, appellant did not follow the procedures required in Texas Rule of Civil
Procedure 306a and Texas Rule of Appellate Procedure 4.2 to gain addition time to perfect his appeal.
See Mem'l Hosp. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam) (holding that compliance with the
provisions of rule 306a is a jurisdictional prerequisite).
Appellate deadlines begin on the date that the trial court signs the judgment or other appealable order. See Tex. R. App. P.
26.1(a)–(c); Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995). Texas Rule of Appellate Procedure 26.1 provides
that an appeal is perfected when notice of appeal is filed within thirty days after the judgment is signed, unless a motion for
new trial or other specified post-judgment motion is timely filed. Tex. R. App. P. 26.1(a)(1). If a motion for new trial or other
specified post-judgment motion is timely filed, the notice of appeal is due within ninety days after the judgment is signed.
See id. R. 26.1(a)(1)–(4).
A motion for judgment notwithstanding the verdict is a post-judgment motion that extends the appellate deadlines if timely
filed. See Tex. R. Civ. P. 392b(g) (stating that motions to modify, correct, or reform a judgment extend the trial court’s
plenary power); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000) (holding that any post-
judgment motion, no matter what it is called, will extend plenary power if it seeks a substantive change in the judgment and
is filed within the time limits for a motion for new trial); Kirschberg v. Lowe, 974 S.W.2d 844, 847–78 (Tex. App.—San
Antonio 1998, no pet.) (holding that a motion for judgment notwithstanding the verdict extends the appellate time lines). A
motion that extends the appellate deadlines must be filed within thirty days after the judgment or other order complained of
is signed. Tex. R. Civ. P. 329b(a) (providing a thirty day deadline to file a motion for new trial); Padilla v. LaFrance, 907 S.W.
2d 454, 458 (Tex. 1995); see In re Brookshire Grocery Co., 250 S.W.3d 66, 69-70 (Tex. 2008) (orig. proceeding) (holding that
an amended or supplemental motion for new trial is timely, and may be filed without leave of court, if it is filed within thirty
days of the judgment and the trial court has not overruled the earlier motion for new trial).
TEXAS SUPREME COURT OPINIONS
Houser v. McElveen, No. 06-0504 (Tex. Jan. 11, 2008)(per curiam)
(appellate procedure, timeliness of notice of appeal, prisoner suit)
Springer v. Springer, No. 06-0382, 240 SW3d 871 (Tex. Nov. 2, 2007)(per curiam)
(timelines for appeal, affidavit of indigence)
Sprowl v. Payne, No. 06-0533 (Tex. Nov. 2, 2007)(per curiam)(appellate procedure, payment for record,
indigence)
Ramos v. Richardson, No. 06-0336, 228 SW3d 671 (Tex. Jun. 29, 2007)(per curiam)
(prisoner suit, timeliness of notice of appeal)
APPELLATE DEADLINE | EFFECT OF FAILURE TO TIMELY NOTICE APPEAL |
EXTENSION OF TIME TO FILE NOTICE OF APPEAL | PLENARY POWER
PERIOD
09‑0424
FREDRICK GILANI v. MOJGAN JALAILI-NAEINI; from Denton County;
2nd district (02‑09‑00015‑CV, ___ SW3d ___, 03‑19‑09, pet denied Oct 2009)
(untimely notice of appeal, jurisdictional dismissal required)
09-0548
CLIFTON JERRY LANDRY v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE - INSTITUTIONAL DIVISION,
COMMISSARY AND TRUST FUND DEPARTMENT, ET AL.; from Walker County; 10th district (10-09-00108-
CV, ___ SW3d ___, 05-20-09, pet. denied Sep. 2009)
(untimely appeal dismissed for want of jurisdiction)
09-0711
RALPH O. DOUGLAS v. ELISE SELMA DOUGLAS; from Harris County;
14th district (14-08-00277-CV, ___ SW3d ___, 03-26-09, pet. denied Sep. 2009)
(dismissal)(untimely notice of appeal)
This is an attempted appeal from a judgment signed December 3, 2007. A timely motion for new trial was
filed January 2, 2008. Appellant's notice of appeal was filed April 2, 2008.
When appellant has filed a timely motion for new trial, motion to modify the judgment, motion to reinstate,
or request for findings of fact and conclusion of law, the notice of appeal must be filed within ninety days
after the date the judgment is signed. See Tex. R. App. P. 26.1(a).
Appellant's notice of appeal was not filed timely. A motion for extension of time is necessarily implied when
an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1, but within
the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt
v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997) (construing the predecessor to Rule 26). However, the
appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner.
See Tex. R. App. P. 26.3, 10.5(b)(1)(C); Verburgt, 959 S.W.2d at 617-18. Appellant's notice of appeal
was not filed within the fifteen-day period provided by Rule 26.3
09-0385
DONALD RAY MCCRAY v. HARRIS COUNTY, ET AL.; from Travis County;
3rd district (03-08-00210-CV, ___ SW3d ___, 02-18-09 pet. denied Sep. 4, 2009)
(untimely notice of appeal)
Donald Ray McCray appeals a final judgment that was signed on October 16, 2007. Notice of appeal was
due 30 days from the date of the decree. See Tex. R. App. P. 26.1. Notice of appeal in this case was due
by November 15, 2007, and not filed until April 4, 2008. Because McCray's notice of appeal was not timely
filed, this Court does not have jurisdiction over the appeal. McCray contends that he received late notice
of the trial court's judgment. Late notice of judgment may be used to extend appellate filing deadlines, but
in no event may the time period for perfecting an appeal begin to run more than 90 days after the final
judgment was signed. Tex. R. App. P. 4.2. Because the notice of appeal was not timely filed, this appeal is
dismissed for want of jurisdiction.
Once the period for granting a motion for extension of time under TRAP 26.3 has
passed, a party can no longer invoke the appellate court's jurisdiction. Dismissal for
want of jurisdiction (DWOJ) required
The trial court signed a final judgment on August 5, 2008. Appellant timely filed a motion for new trial on
September 3, 2008. Therefore, the notice of appeal was due to be filed on November 3, 2008, ninety days
after the date the judgment was signed. See Tex. R. App. P. 26.1(a). A motion for extension of time to file
the notice of appeal was due on November 18, 2008, fifteen days after the deadline for filing notice of
appeal. See Tex. R. App. P. 26.3. Appellant filed his notice of appeal, and a motion for extension of time
to file the notice of appeal, on November 25, 2008, after the fifteen-day grace period allowed by Rule
26.3. Tex. R. App. P. 26.3.
On December 2, 2008, appellee filed a motion to dismiss this appeal for want of jurisdiction.
On January 7, 2009, after the clerk's record had been filed, we ordered appellant to show cause in writing
why this appeal should not be dismissed for lack of jurisdiction. Appellant responds that he erroneously
believed the appellate deadline for perfecting appeal ran from the date his motion for new trial was denied
on October 23, 2008. Appellant also states that the trial court told him at the hearing on the motion for new
trial, held on October 17, 2008, that "your time table on your appellate process begins to run today."
Explaining that his failure to timely file a notice of appeal was neither intentional or deliberate, he asks that
we allow him to continue with his appeal. We have no jurisdiction, however, to grant his request.
Once the period for granting a motion for extension of time under Rule 26.3 has
passed, a party can no longer invoke the appellate court's jurisdiction. See Verburgt v.
Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26); In re Estate of Padilla,
103 S.W.3d 563, 567 (Tex. App.--San Antonio 2003, no pet.). Accordingly, we: grant appellee's motion to
dismiss; deny appellant's motion to extend the time to file the notice of appeal; and dismiss the appeal for
lack of jurisdiction. See Tex. R. App. P. 42.3(a). Costs of appeal are taxed against appellant.
09‑0351
ROBERT D. HENTNIK v. DIANE E. HENTNIK; from Gillespie County; 4th district (04-08-00868-CV, ___
SW3d ___, 02‑11‑09)(missed deadline for filing of notice of appeal and 15-day grace period for motion to
extend time to file notice of appeal, appeal dismissed for want of jurisdiction DWOJ)
Also see:
Texas Causes of Action | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams
Texas Caselaw Topics Pages | Texas Opinions homepage |