Opinion
No. 14-05-00282-CV
Memorandum Opinion filed August 25, 2005.
On Appeal from the 190th District Court, Harris County, Texas, Trial Court Cause No. 04-01233.
Dismissed.
Panel consists of Justices FOWLER, EDELMAN, and GUZMAN.
MEMORANDUM OPINION
This is an attempted appeal from a judgment signed January 31, 2005. No motion for new trial was filed. Appellant's notice of appeal was filed March 11, 2005.
The notice of appeal must be filed within thirty days after the judgment 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.
Appellant's notice of appeal was not timely filed. 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 9 (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.
Appellant also claims that by his notice of appeal, he intended to file a restricted appeal. The Texas Rules of Appellate Procedure provide for a restricted appeal when a party did not participate in the hearing that resulted in the judgment complained of. TEX. R. APP. P. 30. In that instance, the notice of appeal must be filed within six months of the judgment. Tex.R.App.P. 26.1(c). However, a restricted appeal is unavailable for appellant as he participated in the hearing below, which addressed the parties' cross-motions for summary judgment.
On June 29, 2005, notification was transmitted to all parties of the Court's intent to dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a). Appellant's response fails to demonstrate that this Court has jurisdiction to entertain the appeal.
Accordingly, the appeal is ordered dismissed.