In re S.J.R.

Full title: IN THE INTEREST OF S.J.R., A Child

Court: Court of Appeals of Texas, Second District, Fort Worth

Date published: Oct 26, 2006

No. 02-06-313-CV (Tex. App. Oct. 26, 2006)

Opinion

No. 02-06-313-CV

Delivered: October 26, 2006.

Appeal from the 30th District Court of Wichita County.

Panel F: DAUPHINOT, HOLMAN, and GARDNER, JJ.

MEMORANDUM OPINION ¹

1 See TEX. R. APP. P. 47.4.

PER CURIAM.

Appellant Edward L. O'Brien, pro se, attempts to appeal from the trial court's June 5, 2006 orders denying his motion for continuance and his motion to withdraw an administrative writ of withholding. Appellant's request for findings of fact and conclusions of law was due June 26, 2006 but not file-marked until June 27, 2006.² Appellant filed a notice of appeal on September 5, 2006.³ Because we were concerned that we lacked jurisdiction over the appeal due to the untimely request for findings of fact and conclusions of law, we sent Appellant a letter on September 15, 2006 requesting evidence of compliance with rule 5 of the Texas Rules of Civil Procedure.

2 See TEX. R. CIV. P. 296 (requiring that request be filed within twenty days of signing of judgment).

3 See TEX. R. APP. P. 26.1(a)(4) (extending deadline for filing notice of appeal to ninety days from date of judgment if timely request for findings of fact and conclusions of law is filed).

Appellant's response indicates that he timely mailed his request for findings of fact and conclusions of law via FedEx Express Priority Overnight on June 26, 2006. Rule 5, however, requires that a document be sent by "first-class United States mail" to trigger the ten-day grace period for filing.⁴ Accordingly, we hold that Appellant's request for findings of fact and conclusions of law did not trigger the grace period. As a result, Appellant's notice of appeal was due July 5, 2006,⁵ but was untimely filed two months later.

4 TEX. R. CIV. P. 5; Fountain Parkway Ltd. v. Tarrant Appraisal Dist., 920 S.W.2d 799, 802 (Tex.App.-Fort Worth 1996, writ denied) (holding document untimely filed when, as here, it was sent via private courier on the last day for timely filing).

5 See TEX. R. APP. P. 26.1.

Because Appellant's notice of appeal was untimely filed, we dismiss this case for want of jurisdiction.⁶

6 See TEX. R. APP. P. 43.2(f).