Opinion
No. 04-11-00024-CV
Delivered and Filed: January 26, 2011.
Appealed from the 408th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-14263, The Honorable Joe Frazier Brown Jr., Judge Presiding.
Dismissed for Lack of Jurisdiction.
Sitting: REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice, MARIALYN BARNARD, Justice.
MEMORANDUM OPINION
The trial court signed an order dismissed the underlying cause for want of prosecution on October 16, 2007. Because appellant did not file a motion for new trial, motion to modify the judgment, motion for reinstatement, or request for findings of fact and conclusions of law, the notice of appeal was due to be filed on November 15, 2007. See TEX. R. APP. P. 26.1. A motion for extension of time to file the notice of appeal was due on November 30, 2007. See TEX. R. APP. P. 26.3. Appellant filed a notice of appeal in this court on January 10, 2011 which is deemed to have been filed the same day in the trial court. TEX. R. APP. P. 25.1(a). Appellant did not file a motion for extension of time.
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. Because appellant did not file a timely notice of appeal, this court does not have jurisdiction to consider his appeal. See id. Accordingly, this appeal is dismissed for lack of jurisdiction.