Opinion
No. 04-10-00929-CV
Delivered and Filed: January 26, 2011.
Appealed from the County Court At Law No 1, Webb County, Texas, Trial Court No. 2009-CVQ-001807-CI, Honorable Alvino (Ben) Morales, Judge Presiding.
Dismissed for Lack of Jurisdiction.
Sitting: REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice, MARIALYN BARNARD, Justice.
MEMORANDUM OPINION
The trial court signed a final judgment on August 4, 2010. Appellants filed a timely motion for new trial on September 3, 2010. Therefore, the notice of appeal was due to be filed on November 2, 2010. See TEX. R. APP. P. 26.1(a). A motion for extension of time to file the notice of appeal was due on November 17, 2010. See TEX. R. APP. P. 26.3. Appellants filed a notice of appeal on January 3, 2011, and a motion for extension of time to file the notice of appeal on December 30, 2010. It thus appears that neither document was filed within the time allowed for filing a motion for extension of time to file the notice of appeal.
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. Accordingly, appellants' motion and this appeal are dismissed for lack of jurisdiction.