Opinion
Appellate case number: 01-19-00453-CV
10-10-2019
Don McCaffety v. George Barnstone
ORDER Trial court case number: 2017-48731 Trial court: 157th District Court of Harris County
On August 29, 2019, this Court issued a notice of our intention to dismiss the appeal for lack of jurisdiction. The clerk's record indicated that the judgment was signed on March 12, 2019, and appellant's motion for new trial, filed on April 15, 2019, appeared to be untimely filed and therefore, the June 10, 2019 notice of appeal was also untimely.
Appellant filed a response to our notice on September 10, 2019, attaching a copy of the United States Postal Service receipt indicating that appellant paid for delivery to the Harris County Attorney's Office and to the Harris County District Clerk's Office on April 11, 2019, the 30th day after judgment was signed. This is sufficient to prove that appellant mailed the motion for new trial on the date it was due. If a document is received within ten days after the date it is due, it is considered timely filed if it was sent to the proper clerk by the United States Postal Service. See TEX. R. APP. P. 9.2(b)(1(b). The Harris County District Clerk file-stamped its receipt of the motion on April 15, 2019, a date within ten days after it was mailed on April 11, 2019. Accordingly, appellant's motion for new trial is considered timely filed, and thus, his notice of appeal is also timely.
Accordingly, appellant's brief is due within 30 days of the date of this order. Appellee's brief will be due 30 days after appellant's brief is filed.
It is so ORDERED. Judge's signature: Justice Peter Kelly
[v] Acting individually [ ] Acting for the Court Date: October 10, 2019