Opinion
No. 01-07-00119-CV
September 11, 2008
On Appeal from the 61st District Court Harris County, Texas Trial Court Cause No. 2006-10354.
Panel consists of Justices NUCHIA, ALCALA, and HANKS.
MEMORANDUM OPINION
Appellee, Harris County, filed a motion to dismiss for want of jurisdiction. This Court requested a response by appellant, Lushann International Energy Corp., by April 6, 2007. Appellant filed two motions for extension of time to file the response, extending the filing deadline until July 11, 2007. To date, no response has been filed.
The trial court rendered judgment on June 22, 2006, and appellant timely filed a motion for new trial on July 21, 2006. Thus, appellant's notice of appeal was due within 90 days after the judgment was signed, which was September 20, 2006. See TEX. R. APP. P. 26.1(a)(1). Appellant did not file a notice of appeal by September 20, 2006. However, appellant filed what purported to be a notice of restricted appeal in February 2007. A restricted appeal is only available to a party "who did not timely file a postjudgment motion. . . ." See TEX. R. APP. P. 30. Because appellant timely filed a motion for new trial, we lack jurisdiction over this restricted appeal. Clopton v. Pak, 66 S.W.3d 513, 515 (Tex.App.-Fort Worth 2001, pet. denied); see Wright Bros. Energy, Inc. v. Krough, 67 S.W.3d 271, 273 (Tex.App.-Houston [1st Dist.] 2001, no pet.). We dismiss this appeal for lack of subject matter jurisdiction.