Opinion
No. 12-06-00380-CV
Opinion delivered December 20, 2006. PUBLISH.
Appeal from the 294th Judicial District Court of Van Zandt County, Texas .
panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
MEMORANDUM OPINION
Appellant filed a notice of restricted appeal from a child support order signed on June 23, 2006. To be entitled to a restricted appeal, an appellant must first show that he (1) filed his notice of restricted appeal within six months after the trial court signed the judgment or order complained of; (2) was a party to the suit; (3) did not participate in the hearing that resulted in the judgment; (4) did not timely file any post judgment motion or request for findings of fact and conclusions of law; and (4) did not file a notice of appeal within the time permitted by rule 26.1(a). See TEX. R. APP. P. 26.1(c), 30; Clopton v. Pak , 66 S.W.3d 513, 515 (Tex.App.-Fort Worth 2001, pet. denied). These requirements are jurisdictional and will cut off a party's right to seek relief by way of a restricted appeal if they are not met. Clopton , 66 S.W.3d at 515. The notice of appeal must include statements confirming that these requirements have been met. See TEX. R. APP. P. 25.1(d)(7).
On November 22, 2006, this court notified Appellant that his notice of restricted appeal fails to conform to the requirements of Texas Rule of Appellate Procedure 25.1(d)(7). Appellant was further informed that his appeal would be dismissed unless the clerk's record was amended on or before December 4, 2006 to show the jurisdiction of this court. On December 1, 2006, Appellant filed an amended notice of appeal in which he stated that he did not participate in person or through counsel in the hearing that resulted in the order he complains of, did not request findings of fact, and did not timely file a notice of appeal. He stated, however, that he timely filed postjudgment motions, but urges that "this should not affect Appellant's right to a restricted appeal since those motions will not be used to establish the error for appellate relief, since the error can be established solely by the trial court record without the postjudgment motions taken into consideration." The record reflects that Appellant filed a timely motion for new trial.
Appellant's timely filing of a motion for new trial disqualifies him from proceeding with a restricted appeal. TEX. R. APP. P. 30; Birdsell v. Rogillio , No. 01-05-01164-CV, 2006 WL 1913398, at *1 (Tex.App.-Houston [1st Dist.] July 13, 2006, no pet.) (mem. op.) (per curiam). Accordingly, the appeal is dismissed for want of jurisdiction.