Opinion
No. 04-17-00642-CV
01-11-2018
IN THE INTEREST OF A.B.S., A CHILD
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2011-CI-17935
Honorable David A. Canales, Judge Presiding
ORDER
This is a restricted appeal from a default judgment in a child custody proceeding. On December 19, 2017, appellant filed in this court her "Motion for Immediate Temporary Relief," asking that we award her temporary custody of A.B.S pending resolution of this appeal. On December 20, 2017, appellee filed a response to appellant's motion for temporary relief. In addition to his response, but contained in the same document, appellee moved to dismiss the appeal for want of jurisdiction, arguing appellant's restricted appeal is untimely. After consideration, we denied appellant's "Motion for Immediate Temporary Relief," but did not dispose of appellant's request to dismiss the appeal for want of jurisdiction.
According to appellee, appellant's notice of appeal was due October 2, 2017, 180 days after the trial court's order was rendered, but it was not filed until October 4, 2017, making it untimely. We disagree. Rule 26.1(c) of the Texas Rules of Appellate Procedure provides, "In a restricted appeal, the notice of appeal must be filed within six months after the judgment or order is signed." TEX. R. APP. P. 26.1(c) (emphasis added). Where the word "month" is employed by a rule, the period of time is to be computed "from a given day in one month to a day of the corresponding number in the next or specified succeeding month." Medina v. Lopez-Roman, 49 S.W.3d 393, 397-98 (Tex. App.—Austin 2000, pet. denied). Here, the order being appealed was rendered on April 4, 2017, and thus, the notice of appeal was due October 4, 2017, the date on which appellant filed her notice of appeal in this court. See id.; see also TEX. R. APP. P. 25.1(a) (stating that if notice of appeal is mistakenly filed with appellate court instead of trial court clerk, notice is deemed to have been filed same day with trial court clerk). Accordingly, because appellant's notice of appeal was timely, we DENY appellee's motion to dismiss the appeal for want of jurisdiction.
At this time, appellant's brief has been filed. We remind counsel that appellee's brief is due January 29, 2018.
We order the clerk of this court to serve a copy of this order on all counsel.
/s/_________
Marialyn Barnard, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 11th day of January, 2018.
/s/_________
KEITH E. HOTTLE,
Clerk of Court