Opinion
No. 05-09-00309-CV
Opinion Filed July 15, 2009.
On Appeal from the 301st Judicial District Court, Dallas County, Texas, Trial Court Cause No. DF-08-07095.
Before Justices MOSELEY, O'NEILL, and MURPHY.
MEMORANDUM OPINION
Donnell Ashford filed a petition for divorce, which was dismissed for want of prosecution on September 5, 2008. Appellant filed an unverified motion to reinstate the case on October 3, 2008 and a notice of appeal on January 5, 2009. Because it appeared appellant's notice of appeal was untimely due to the unverified motion to reinstate, we directed the parties to file letter briefs addressing our jurisdiction over the appeal.
Appellant filed a letter brief in which he essentially claims the jurisdictional problem was created by the trial court. First, appellant asserts the trial court dismissed his case for want of prosecution without giving him proper notice. Second, appellant asserts the trial court clerk had a duty to notify him of the defect in the motion to reinstate so that he could correct it. Appellant argues the appeal cannot be dismissed for a procedural defect he did not have the opportunity to correct. Appellee did not file a response to appellant's jurisdictional brief.
The timely filing of a notice of appeal invokes the jurisdiction of the court of appeals. See Tex. R. App. P. 25.1(b). If the notice of appeal is not timely filed, the court of appeals is without jurisdiction to consider the appeal.
The rules of civil procedure require that a motion to reinstate following dismissal of a case for want of prosecution be verified. Tex. R. Civ. P. 165a(3). An unverified motion to reinstate does not extend the trial court's plenary power or the deadline for filing a notice of appeal from the order dismissing the case for want of prosecution. McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding) (per curiam); Macarangal v. Andrews, 838 S.W.2d 632, 633 (Tex.App.-Dallas 1992, orig. proceeding). Absent a verified motion to reinstate, a notice of appeal from an order dismissing a case for want of prosecution is due within thirty days of the date of the order. See Tex. R. App. P. 26.1.
Because in this case appellant's motion to reinstate was not verified, appellant's notice of appeal was due by Monday, October 6, 2008. Appellant's January 5, 2009 notice of appeal is untimely, leaving us without jurisdiction over the appeal.
We dismiss the appeal for want of jurisdiction.