Opinion
No. 05-09-00374-CV
Opinion issued May 19, 2009.
On Appeal from the 256th Judicial District Court Dallas County, Texas, Trial Court Cause No. 07-14274-Z-256th.
Before Justices WRIGHT, MOSELEY, and FRANCIS.
Opinion by Justice WRIGHT.
MEMORANDUM OPINION
The Court has before it appellant's April 7, 2009 amended motion to extend time to file his notice of appeal. In the motion, appellant asserts that he did not receive notice or actual knowledge of the trial court's judgment until January 14, 2009; thus the time for filing the notice of appeal should run from that date. Appellee did not respond to the motion.
The timely filing of a notice of appeal is jurisdictional. See Tex. R. App. P. 25.1(b), 26.3. Absent a timely notice of appeal, we do not have jurisdiction over the appeal. For the reasons below, we conclude we lack jurisdiction over the appeal.
The record reflects that the trial court's judgment was signed on December 17, 2008 and that appellant filed a timely motion for new trial on January 14, 2009. Thus, pursuant to Texas Rule of Appellate Procedure 26.1(a), appellant's notice of appeal was due by March 17, 2009. The notice of appeal was filed on April 3, 2009.
The rules of appellate procedure provide for additional time to file a notice of appeal if a party affected by the judgment did not receive notice or actual knowledge of the signing of the trial court's judgment within twenty days after the judgment was signed. See Tex. R. App. P. 4.2(a). However, to obtain the benefit of rule 4.2(a), the party must have followed the procedure set out in Texas Rule of Civil Procedure 306a.5, and have obtained a written order signed by the trial court setting out the date on which the party received notice or actual knowledge of the judgment. Id. 4.2(b), (c).
In this case, we directed appellant to provide us with either copies of a rule 306a motion and the trial court's order ruling on the motion or written verification that no motion was filed. Appellant responded that no rule 306a motion was filed because he timely filed a motion for new trial. Because appellant did not follow the procedures set out in rule 306a.5, he may not rely on rule 4.2(a) to extend the time for filing his notice of appeal. See Tex. R. App. P. 4.2.
We next determine whether appellant may obtain the benefit of the extension period provided by rule 26.3. See Tex. R. App. P. 26.3. When a party files a notice of appeal within fifteen days of the deadline, rule 26.3 permits parties to file a motion for extension of time to file their notice of appeal because a motion for extension of time is necessarily implied in the filing of the notice within that time. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). However, a notice of appeal filed outside the fifteen-day period provided by rule 26.3 will not invoke the appellate court's jurisdiction. See id.
For appellant to obtain the benefit of rule 26.3, his notice of appeal had to be filed by April 1, 2009. See Tex. R. App. P. 26.3(a); Verburgt, 959 S.W.2d at 617. Appellant's notice of appeal was not filed until April 3, 2009, two days later. The certificate of service reflects the date April 3, 2009. Nothing in the record reflects that the notice of appeal was prepared and mailed on or before April 1, 2009, nor does appellant assert that he is entitled to rely on the mailbox rule to show timely filing of the notice of appeal. See Tex. R. App. P. 9.2(b). Rather, appellant relies solely on the date he asserts he received actual notice of the trial court's judgment to establish the due date for the notice of appeal.
Because appellant's notice of appeal was not filed within the fifteen-day period required by rule 26.3(a), we may not grant his motion to extend time to file the notice of appeal. See Verburgt, 959 S.W.2d at 617. Accordingly, we deny appellant's April 7, 2009 amended motion to extend time to file his notice of appeal.
We dismiss the appeal for want of jurisdiction.