Opinion
No. 01-02-00897-CV.
Opinion issued March 13, 2003.
Appeal from the 269th District Court, Harris County, Texas, Trial Court Cause No. 2000-23619.
Panel consists of Chief Justice RADACK and Justices NUCHIA and HANKS.
OPINION
Appellees have filed a motion to dismiss for want of jurisdiction. More than 10 days have passed since its filing, and appellant has not responded. In the motion, appellees assert that the order appealed from is an order of dismissal signed January 3, 2001, and that under the Texas Rules of Appellate Procedure, the latest date appellant could have timely filed his notice of appeal to invoke this Court's jurisdiction was April 18, 2001. Appellees assert that appellant failed to do so by a significant margin, filing notices of appeal on June 12, 2002 and again on August 21, 2002, well over a year too late.
Appellees arrive at this date by assuming, for the sake of argument, that if appellant had filed a motion for new trial, pursuant to Tex. R. App. P. 26.1(a), he would have had 90 days from the date of dismissal order to file his notice of appeal (April 3. 2001), and if he had filed a motion for extension of time to file the notice of appeal, pursuant to Tex. R. App. P. 26.3, the deadline could have been extended another 15 days (to April 18, 2001).
The clerk's record does not show a notice of appeal filed on June 12, 2002, but rather a notice of appeal filed July 12, 2002.
The only document in the clerk's record dismissing the case is an order signed January 3, 2001, tending to confirm appellee's assertion about the date of the final order from which an appeal would arise and contradict an assertion in the appellant's April 19, 2002 motion for new trial that a judgment was rendered against him on March 20, 2002.
Based on an examination of the clerk's record, it appears to this Court that the case was dismissed for want of prosecution by an order signed on January 3, 2001, and that appellant did not timely file a motion for new trial or any other document extending the time for filing the notice of appeal. Therefore, to perfect the appeal, appellant would have to have filed his notice of appeal by February 2, 2002. See Tex. R. App. P. 26.1(a) (an appellant must file his notice of appeal within 30 days after the judgment is signed, unless he timely files a motion for new trial, motion to modify the judgment, a motion to reinstate, or a request for findings of fact and conclusions of law, none of which, it appears, appellant timely filed). Neither does it appear that appellant filed a motion for extension of time to file his notice of appeal. See Tex. R. App. P. 26.3. Accordingly, it appears the July 12, 2002 and August 21, 2002 notices of appeal contained in the clerk's record were filed well outside the time limits to invoke this Court's jurisdiction.
The only motion for new trial contained in the clerk's record was filed April 19, 2002, well outside the time for filing a motion for new trial. See Tex. R. Civ. P. 329b ("A motion for new trial, if filed, shall be filed prior to or within thirty days after the judgment or other order complained of.")
On January 30, 2003, we issued an order stating that we would dismiss this appeal, without further notice on or after February 18, 2003, unless by that date appellant demonstrated to this Court that it has jurisdiction. See Tex. R. App. P. 42.3(a).
That time has passed and appellant has not responded to our order. Accordingly, the appeal is dismissed for want of prosecution.