Opinion
No. 04-17-00271-CV
05-17-2017
Susan Rebecca CAMMACK, Appellant v. Russell HIERHOLZER, Appellee
MEMORANDUM OPINION
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. 11228B
Honorable Stephen B. Ables, Judge Presiding PER CURIAM Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Irene Rios, Justice DISMISSED FOR WANT OF JURISDICTION
On May 1, 2017, Susan Rebecca Cammack filed an emergency motion to stay the sheriff's sale of her real property. We ordered Cammack to show cause why this proceeding should not be dismissed for want of jurisdiction because the trial court rendered a judgment in September 2016. Cammack filed a response and a motion for an out-of-time appeal, alleging she informed her counsel of her desire to appeal. Cammack argues we have jurisdiction because (1) we have jurisdiction to determine our own jurisdiction; (2) her counsel rendered ineffective assistance; (3) her motion for an out-of-time appeal vests this court with jurisdiction and she is unaware of a deadline to file such a motion; and (4) this case might involve a question of first impression.
The emergency motion was denied on May 2, 2017.
Cammack also suggests we have the authority to issue a mandamus against appellee, the sheriff of Kerr County. However, as noted in our May 1, 2017 order, we may only issue writs against a sheriff if it is necessary to enforce our jurisdiction. See TEX. GOV'T CODE ANN. § 22.221(a). Cammack has not shown how the issuance of a writ of mandamus against appellee is necessary to enforce our jurisdiction.
We always have jurisdiction to determine our own jurisdiction. In re Lazy W Dist. No. 1, 493 S.W.3d 538, 544 (Tex. 2016) (orig. proceeding). But if we conclude that we lack jurisdiction over an appeal, we must dismiss the appeal. Spates v. Office of Attorney Gen., Child Support Div., 485 S.W.3d 546, 550 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The Supreme Court of Texas has established a deadline for filing a notice of appeal, which is necessary to invoke this court's jurisdiction. See Sweed v. Nye, 323 S.W.3d 873, 875 (Tex. 2010) (per curiam). It is well-settled that "[o]nce the period for granting a motion for extension of time [under the Rules of Appellate Procedure] has passed, a party can no longer invoke the appellate court's jurisdiction." See Verburgt v. Dorner, 959 S.W.2d 615, 617 (1997).
Texas Rule of Appellate Procedure 26.1 provides a "notice of appeal must be filed within 30 days after the judgment is signed." TEX. R. APP. P. 26.1. We "may extend the time to file the notice of appeal if, within 15 days after the deadline for filing the notice of appeal, the party: (a) files in the trial court the notice of appeal; and (b) files in the appellate court a motion complying with Rule 10.5(b)." Id. R. 26.3. If a party files a notice of appeal within fifteen days after the deadline for filing a notice of appeal, a motion for extension of time to file the notice of appeal is implied if the party acted in good faith. Verburgt, 959 S.W.2d at 615. However, we may not suspend the Rules of Appellate Procedure "to alter the time for perfecting an appeal in a civil case," even for good cause. TEX. R. APP. P. 2.
Cammack requests that we extend the deadline for filing a notice of appeal beyond the deadline the supreme court has provided. We lack the authority to extend this deadline and alter the time for perfecting a civil appeal, such as this one, even if Cammack's counsel erred by failing to file a timely notice of appeal. See id. Because Cammack did not timely file a notice of appeal, she has failed to invoke this court's jurisdiction. See Sweed, 323 S.W.3d at 875. We must therefore dismiss this appeal. See Spates, 485 S.W.3d at 550.
PER CURIAM