Opinion
No. 04-04-00476-CV
Delivered and Filed: January 12, 2005.
Appeal from the 216th Judicial District Court, Bandera County, Texas, Trial Court No. 7360-99, Honorable Charles Sherill, Judge Presiding.
Dismissed for Lack of Jurisdiction.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice and Sarah B. DUNCAN, Justice.
MEMORANDUM OPINION
The trial court signed an appealable order on July 7, 2004. Appellant filed a timely motion for new trial on July 13, 2004. Therefore, the notice of appeal was due to be filed on October 5, 2004. See Tex.R.App.P. 26.1(a). A motion for extension of time to file the notice of appeal was due on October 20, 2004. See Tex.R.App.P. 26.3. Appellant filed a notice of appeal on November 10, 2004, but did not file a motion for extension of time. Therefore, the record reflects that the notice of appeal was not filed within the time allowed for filing a motion for extension of time to file the notice of appeal.
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 (Tex. 1997) (construing the predecessor to Rule 26). But "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." Id.
On November 22, 2004, we ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Appellant responded to our order; however, the response does not provide any basis on which this court can exercise jurisdiction over this appeal. Because the period for granting a motion for extension of time had passed before appellant filed his notice of appeal, appellant has not invoked our jurisdiction. Id. Accordingly, this appeal is dismissed for lack of jurisdiction.