Opinion
No. 05-10-00203-CV
Opinion issued September 21, 2010.
On Appeal from the 330th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 09-11093.
Before Chief Justice WRIGHT and Justices O'NEILL and MYERS.
MEMORANDUM OPINION
Appellant Percy Lowe appealed the trial court's order in a suit affecting the parent-child relationship. We conclude we lack jurisdiction, and dismiss the appeal.
Background
On June 10, 2009, the Attorney General of the State of Texas (AG) filed an original petition in a suit affecting the parent-child relationship pursuant to chapter 231 of the Texas Family Code. See generally Tex. Fam. Code Ann. §§ 231.001-.309 (West 2008 Supp. 2010) (Title IV-D Services). A hearing on the petition was conducted before an associate judge on September 10, 2009. The associate judge's order, which was signed on September 10, 2009, states appellant appeared via telephone. Appellant filed a motion for new trial on Monday, October 12, 2009 and a notice of appeal from the associate judge's order on December 9, 2009. The AG filed a response to the December 9, 2009 notice of appeal, asserting it was untimely and the appeal should be dismissed. On January 20, 2010, appellant filed a notice of restricted appeal from the September 10, 2009 order.
Because it appeared appellant was not entitled to a restricted appeal, this Court, by letter dated March 18, 2010, directed the parties to file letter briefs addressing our jurisdiction over the appeal. Neither party responded.
Analysis
A party requesting a de novo hearing by the referring court from an order entered by an associate judge "shall file notice with the clerk of the referring court not later than the seventh working day after the date the associate judge signs the proposed order or judgment." Id. § 201.1042(b). If a request for a de novo hearing is not timely filed, "the proposed order or judgment of the associate judge . . . shall become the order or judgment of the referring court by operation of law without ratification by the referring court." Id. § 201.1041(a).
In this case, nothing in the record reflects appellant requested a de novo review of the associate judge's September 10, 2009 order within the required seven-day period. Therefore, by operation of law, that order became the order of the referring court not later than the seventh working day after September 10, which was Monday, September 21, 2009. For purposes of this appeal, we will use September 21, 2009 as the date by which we will calculate the timetables to determine our jurisdiction. See id.; see also In re Office of the Attorney Gen. of Tex., 264 S.W.3d 800, 809 (Tex. App.-Fort Worth 2008, orig. proceeding).
Although appellant filed a notice of appeal on December 9, 2009, in that notice he sought a trial de novo in the referring court. Nothing in the December 9, 2009 notice of appeal sought review of a final order by this Court. Therefore, we conclude it was not effective to invoke our jurisdiction over this appeal. See generally Tex. R. App. P. 25.1 (requirements of notice of appeal in civil cases).
Appellant filed a notice of restricted appeal on January 20, 2010. Texas Rule of Appellate Procedure provides the basis for when a party may file a notice of restricted appeal. See Tex. R. App. P. 30. It requires that the party filing a notice of restricted appeal did not: (1) participate, either in person or through counsel, in the hearing that resulted in the judgment complained of; and (2) timely file a post-judgment motion or request findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a). See id. If a party cannot meet these requirements, the party is not entitled to a restricted appeal under rule 30. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004) (requirements of restricted appeal); Lab. Corp. v. Mid-Town Surgical Ctr., Inc., 16 S.W.3d 527, 528-29 (Tex. App.-Dallas 2000, no pet.) (same).
In this case, the order reflects that appellant appeared at the hearing via telephone. Therefore, appellant participated in the September 10, 2009 hearing. Cf. Johnson v. Handley, 299 S.W.3d 925, 929-30 (Tex. App.-Dallas 2009, no pet.) (having prisoner pro se participate in hearing via telephone would have been effective means for having him appear at final disposition hearing). Additionally, appellant's October 12, 2009 motion for new trial was filed within thirty days of September 21, 2009, the latest date by which the associate judge's order became the final order of the court by operation of law. Thus, for purposes of this appeal, appellant's motion for new trial was timely. See Tex. R. Civ. P. 329b(a).
Because appellant both participated in the hearing that resulted in the complained-of order and timely filed a post-judgment motion, appellant is not entitled to a restricted appeal. See Tex. R. App. P. 30; Alexander, 134 S.W.3d at 848; Lab. Corp., 16 S.W.3d at 528-29. Therefore, his notice of appeal to this Court was due by Monday, December 21, 2009. See Tex. R. App. P. 4.1(a), 26.1(a)(1).
To be entitled to the extension period provided by Texas Rule of Appellate Procedure 26.3, appellant had to have filed his notice of appeal, at the latest, by January 5, 2010. See Tex. R. App. P. 26.3(a); Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997). Appellant did not file his notice of appeal until January 20, 2010, two weeks after the fifteen-day period provided by rule 26.3 expired. Nothing in the record reflects appellant mailed the notice of appeal on or before January 5, 2010, nor did appellant provide us proof of such mailing. See Tex. R. App. P. 9.2(b). Therefore, we conclude appellant's January 20, 2010 notice of appeal is untimely, leaving us without jurisdiction.
We dismiss the appeal for want of jurisdiction.