Opinion
No. 07-10-00370-CV
October 20, 2010.
Appealed from the 320th District Court of Potter County; No. 74,608-D; Honorable Don R. Emerson, Judge.
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ORDER OF ABATEMENT
By letter of September 28, 2010, the Court notified appellant Ja'Mario Oliver, Sr. that the filing fee for his appeal had not been paid. The filing fee was paid October 8, 2010.
Reviewing the limited documents currently before us, we note the trial court's order terminating appellant's parental rights was signed July 30, 2010. Notice of appeal was filed with the trial court on September 22. The notice states it was "forwarded" on September 15. No motion for extension of time to file notice of appeal was filed. See Tex. R. App. P. 26.3.
An appeal from an order terminating the parent-child relationship is accelerated and governed by the rules for accelerated appeals in civil cases. Tex. Fam. Code Ann. § 109.002(a) (Vernon 2009). Absent a motion for extension of time, the notice of appeal in an accelerated appeal must be filed within twenty days after the order is signed. Tex. R. App. P. 26.1(b) and 26.3; In re K.A.F., 160 S.W.3d 923, 926-27 (Tex. 2005). Under those rules, appellant's notice of appeal must have been placed in the prison mail system by August 19. See Ramos v. Richardson, 228 S.W.3d 671, 673 (Tex. 2007) (per curiam); Warner v. Glass, 135 S.W.3d 681, 686 (Tex. 2004) (per curiam) (both finding pleadings filed when received for mailing by prison authorities); Tex. R. Civ. P. 5 ("mailbox rule").
If a notice of appeal is filed within six months of the day the order or judgment appealed is signed, a restricted appeal is available provided the appellant: (1) filed notice of appeal within six months of the district court's order; (2) was a party to the underlying suit; (3) did not participate in the dismissal hearing; and (4) can demonstrate error apparent on the face of the record. See Tex. R. App. P. 26.1(c) and 30; Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004). An order terminating the parental rights of a person who was personally served is not subject to collateral or direct attack after the sixth month after the date the order of termination was signed. Tex. Fam. Code Ann. § 161.211(a) (Vernon 2008). Here, the order states appellant received proper notice of the termination hearing but "wholly made default."
We do not have jurisdiction over an untimely appeal. See In re K.A.F., 160 S.W.3d at 927. We are obligated to review on our own motion issues affecting jurisdiction. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam). It appears appellant's notice of direct appeal may be untimely but also appears it might suffice as a notice of restricted appeal. See Tex. R. App. P. 30.
It appears appellant did not timely file a statement of the point or points to be appealed as required by Family Code § 263.405(b)(2), (i). Because our only inquiry at this stage is our jurisdiction, we do not address that matter.
The appeal is abated until further order of the Court. Appellant and appellee Texas Department of Family and Protective Services are each directed to file a brief and any supporting materials addressing the following issues: (1) whether a jurisdictional basis for treating appellant's case as a direct appeal exists; (2) whether a jurisdictional basis for treating appellant's case as a restricted appeal exists. Briefs and any supporting materials must be actually received by the clerk of this Court no later than Friday, November 10, 2010. Any document a party submits for filing with the clerk of the Court shall be served on the other party, and proof of service shown by a certificate on the document. Tex. R. App. P. 9.5. The Court will then determine its jurisdiction over the appeal.
It is so ordered.