Opinion
No. 05-09-00834-CV
Opinion Filed September 22, 2009.
On Appeal from the 160th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-09-01544.
Before Justices O'NEILL, FRANCIS, and LANG.
MEMORANDUM OPINION
The trial court's judgment was signed in this case on May 22, 2009. No motion for new trial was filed; therefore, appellant's notice of appeal was due by Monday, June 22, 2009. See Tex. R. App. P. 4.1(a), 26.1. Appellant filed her notice of appeal on July 22, 2009, one month late. Therefore, we directed the parties to file letter briefs addressing our jurisdiction over the appeal.
Appellant responded that she did not receive notice of the trial court's judgment until "possibly on or after June 22, 2009," and she filed her notice of appeal within thirty days of that date. Appellee responds that appellant is not entitled to additional time to file her notice of appeal because she did not satisfy the requirements of rule of appellate procedure 4.2 and rule of civil procedure 306a5. See Tex. R. App. P. 4.2; Tex. R. Civ. P. 306a5. We agree with appellee. 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. Civ. 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, appellant does not assert she filed a rule 306a.5 motion, nor does the record reflect that she filed a motion and received an order ruling on that motion, establishing the date by which she received notice or actual knowledge of the trial court's judgment. Therefore, appellant may not rely on rule 4.2(a) to extend the time for filing her notice of appeal.
Nor may appellant obtain the benefit of the extension period provided by rule of appellate procedure 26.3. See Tex. R. App. P. 26.3. When a party files a notice of appeal within fifteen days after the day it is due, rule 26.3 permits the party to file a motion to extend time to file the notice of appeal because an extension of time is necessarily implied in the filing of the notice of appeal 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, her notice of appeal had to be filed by July 7, 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 July 22, 2009. Thus, appellant may not rely on rule 26.3 and Verburgt to extend the time for filing her notice of appeal.
The timely filing of a notice of appeal is jurisdictional, see Tex. R. App. P. 25.1(b), 263. Because appellant's notice of appeal was untimely, we do not have jurisdiction over this appeal.
We dismiss the appeal.