Opinion
No. 04-06-00040-CV
Delivered and Filed: April 26, 2006.
Appeal from the 285th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CI-10187, Honorable Karen H. Pozza, Judge Presiding.
Dismissed for Lack of Jurisdiction.
Sitting: Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
Juan Carlos Castillo filed a notice of appeal on January 20, 2006. The clerk's record contains an Order In Suit To Modify Parent-Child Relationship, which is dated July 7, 2003, in trial cause number 2001-CI-10187. Therefore, Mr. Castillo's notice of appeal from this order is not timely. However, the notice of appeal states that Mr. Castillo desires "to appeal the Order In Suit Affecting The Parent-Child Relationship signed by [the trial court] on July 21, 2005." The clerk's record does not contain any order dated July 21, 2005. Because it appears this court is without jurisdiction to consider Mr. Castillo's appeal in this cause, we ordered Mr. Castillo to file a response presenting a reasonable explanation (1) for failing to file the notice of appeal from the July 7, 2003 order in a timely manner, and (2) for the basis of this court's jurisdiction over the July 21, 2005 order, which was entered in a different trial cause number and is not contained in the appellate record in this appeal.
The clerk's record in appellate cause number 04-06-00041-CV contains the July 21, 2005 Order In Suit Affecting The Parent-Child Relationship. However, that order bears the trial cause number of 2004-CI-12608. Mr. Castillo also filed a restricted appeal in appellate cause number 04-06-00041-CV.
That notice of appeal, although bearing the trial number of 2004-CI-12608, appears to be incorrectly styled as Sonja Castillo v. Ruby Tristan.
On March 28, 2006, Mr. Castillo's counsel filed a response agreeing this court did not have jurisdiction to hear an appeal of the July 7, 2003 order. Counsel states appellant was a participant in the suit that resulted in the July 7, 2003 order, but he was not a participant in the bill of review proceeding that resulted in the July 21, 2005 order. Counsel states a notice of appeal was filed "in this cause only in anticipation that Appellee might aver that the July 21, 2005 order inadvertently bore the wrong cause number and should have been filed in the 2001-CI-10187 cause." Appellee has not filed any response.
A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by Rule 26.1 but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (construing the predecessor to Rule 26). But "once the period for granting a motion for extension of time under Rule [26.3] has passed, a party can no longer invoke the appellate court's jurisdiction." Id. Therefore, appellant's request that this appeal be consolidated with the appeal in appellate cause number 04-06-00041-CV is denied and this appeal is dismissed for lack of jurisdiction. See Tex.R.App.P. 42.3(a).