Opinion
No. 14-08-00365-CV
Opinion filed July 24, 2008.
On Appeal from the 387th District Court, Fort Bend County, Texas, Trial Court Cause No. 07-CV-160708.
Panel consists of Justices YATES, ANDERSON, and BROWN.
MEMORANDUM OPINION
This is an appeal from a judgment signed January 18, 2008. Appellant filed a timely motion for new trial and motion for reconsideration. The notice of appeal was due April 17, 2008. See TEX. R. APP. P. 26.1. Appellant, however, filed his notice of appeal on April 21, 2008, a date within 15 days of the due date for the notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Appellant did not file a motion to extend time to file the notice of appeal. On June 12, 2008, we ordered appellant to file a proper motion to extend time to file the notice of appeal on or before June 23, 2008. See TEX. R. APP. P. 26.3;10.5(b).
Appellant's notice of appeal is entitled "NOTICE OF APPEAL/RESTRICTED APPEAL." Although the title includes the term, "restricted appeal," appellant is not entitled to bring a restricted appeal. A restricted appeal is available only under the following circumstances, which must be stated and verified in the notice of appeal: (1) the party was affected by the trial court's judgment but did not participate, either in person or through counsel in the hearing that resulted in the judgment; and (2) the party did not timely file either a postjudgment motion or notice of appeal. TEX. R. APP. P. 25.1(d)(7). Appellant timely filed a postjudgment motion and thus, is not entitled to file a restricted appeal.
On June 23, 2008, appellant filed a motion to extend time to file the notice of appeal; however, this motion contains no reasonable explanation to support the late filing. Because appellant has not presented a reasonable explanation for his untimely filing of the notice of appeal, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3.
A reasonable explanation is "any plausible statement of circumstances indicating that failure to file within the [required] period was not deliberate or intentional, but was the result of inadvertence, mistake or mischance." Weik v. Second Baptist Church of Houston, 988 S.W.2d 437, 439 (Tex.App.-Houston[1st Dist.] 1999, pet. denied).