Opinion
No. 06-05-00024-CV
Submitted: March 14, 2005.
Decided: March 15, 2005.
On Appeal from the 307th Judicial District Court, Gregg County, Texas, Trial Court No. 2002002-606-DR.
Before MORRISS, C.J., ROSS and CARTER, JJ.
MEMORANDUM OPINION
Romeo Anderson Lee attempts to appeal the trial court's denial of his motion to modify and enforce a divorce decree. Lee had asked the trial court to (1) modify the divorce decree's visitation order and (2) order Lee's ex-wife to turn over Lee's separate property from the marital estate to Lee's mother (or, alternatively, to pay Lee for the value of Lee's separate property, which Lee alleged his ex-wife had sold without his permission). The issue before us is whether Lee timely filed his notice of appeal. We conclude he did not and dismiss the attempted appeal for want of jurisdiction.
On the issue of whether Lee timely perfected his appeal, the record establishes the following: (1) On Wednesday, August 18, 2004, the trial court entered a judgment disposing of Lee's motion to modify and enforce; (2) Lee mailed a motion for reconsideration Monday, September 20, 2004, which was filed by the district clerk's office Friday, October 1, 2004; and (3) Lee's notice of appeal was mailed to the district clerk's office Saturday, November 20, 2004, and was received and filed Thursday, December 9, 2004.
A timely notice of appeal is necessary to invoke this Court's jurisdiction. See Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997). Rule 26.1 of the Texas Rules of Appellate Procedure prescribes the time period during which a notice of appeal must be filed to timely perfect an appeal in a civil case. The party's notice of appeal is timely if filed within ninety days after the day the trial court's judgment is signed, if the party timely filed a motion for new trial. TEX. R. APP. P. 26.1(a). The last date allowed for Lee to timely file his notice of appeal was Tuesday, November 16, 2004, ninety days after the day the trial court signed its judgment. See TEX. R. APP. P. 26.2(a). We may consider a late notice of appeal timely to invoke jurisdiction if it is filed within fifteen days of the last day allowed for filing. See Verburgt, 959 S.W.2d at 616-17. However, "once the period for granting a motion for extension of time under former Rule 41(a) [now Rule 26.3 of the Texas Rules of Appellate Procedure] has passed, a party can no longer invoke the appellate court's jurisdiction." Id. at 617.
In this case, Lee did not file a motion to extend time to file his notice of appeal. Nevertheless, even if Lee had sought and received an extension of time to file his notice of appeal, that notice was not filed with the district court until December 9, 2004, which would have been 113 days after the date of the trial court's judgment, beyond even the latest allowable date had an extension been sought and granted by this Court.
Lee has failed to perfect his appeal. Accordingly, we dismiss the appeal for want of jurisdiction.