Opinion
No. 14-05-00110-CV
Memorandum Opinion Filed April 7, 2005.
On Appeal from the 21st District Court, Burleson County, Texas, Trial Court Cause No. 23,230.
Dismissed.
Panel consists of Justices YATES, ANDERSON, and HUDSON.
MEMORANDUM OPINION
This is an attempted appeal from a judgment, signed May 26, 2004. A premature motion for new trial was filed on May 10, 2004 (in response to the trial court's oral rendition on April 5, 2004). A prematurely filed motion for new trial is deemed to have been filed on the date of but subsequent to the time of signing of the judgment. TEX. R. CIV. P. 306c. Appellant's notice of appeal was filed on October 25, 2004.
When appellant has filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law, the notice of appeal must be filed within ninety days after the date the judgment is signed. See Tex.R.App.P. 26.1(a). In this case, the ninety-day deadline was August 24, 2004.
Appellant's notice of appeal was not filed timely. 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, 617-18 9 (1997) (construing the predecessor to Rule 26). However, the appellant must offer a reasonable explanation for failing to file the notice of appeal in a timely manner. See TEX. R. APP. P. 26.3, 10.5(b)(1)(C); Verburgt, 959 S.W.2d at 617-18. Appellant's notice of appeal was not filed within the fifteen-day period provided by rule 26.3
On March 1, 2005, notification was transmitted to all parties of the Court's intent to dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a). Appellant's response fails to demonstrate that this Court has jurisdiction to entertain the appeal. Attached to appellant's response is a notice of restricted appeal information sheet. This document contains no file stamp; however, the clerk's record contains the same document, with the word "restricted" crossed out. Even if we were to consider appellant's notice of appeal as a notice of restricted appeal, which may be filed within six months of the date of judgment, TEX. R. APP. P. 26.1(c), appellant is not entitled to file a restricted appeal. Only a party who did not participate in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion may file a notice of restricted appeal. TEX. R. APP. P. 30. In this case, appellant participated in the trial that resulted in the judgment complained of, and appellant filed a timely motion for new trial. Accordingly, the notice of appeal was not timely filed.
The appeal is ordered dismissed.