Opinion
No. 04-16-00194-CV
08-10-2016
Jose PEREZ Jr., Appellant v. Salud CAZARES, Appellee
MEMORANDUM OPINION
From the County Court at Law, Val Verde County, Texas
Trial Court No. 3287CCL
Honorable Sergio J. Gonzalez, Judge Presiding PER CURIAM Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice DISMISSED FOR WANT OF JURISDICTION
Appellant Jose Perez Jr. appeals a final decree of divorce signed on January 12, 2016. Appellant did not file a timely motion that would have extended the appellate timetable. See TEX. R. CIV. P. 329b(g); TEX. R. APP. P. 26.1(a). Thus, the notice of appeal was due February 11, 2016, or a motion for extension of time to file the notice of appeal was due fifteen days later on February 26, 2016. See TEX. R. APP. P. 26.1, 26.3. Appellant did not file a timely notice of appeal or a timely motion for extension of time to file the notice of appeal. However, on March 17, 2016, appellant filed a notice of appeal.
The supreme court holds that "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." See Verburgt v. Dorner, 959 S.W.2d 615, 615 (1997) (construing predecessor to Rule 26). We therefore ordered appellant to file a response showing cause why this appeal should not be dismissed for lack of jurisdiction. We advised appellant that if he failed to satisfactorily respond within the time provided, the appeal would be dismissed. See TEX. R. APP. P. 42.3(a), (c).
In response, appellant asserted he did not receive notice of the judgment in a timely manner. See TEX. R. APP. P. 4.2; TEX. R. CIV. P. 306a. According to appellant, he received notice of the judgment on February 24, 2016, more than twenty days after the judgment was signed. To support his argument, he attached a copy of an envelope from the Val Verde district clerk's office that was postmarked February 24, 2016. We construed his response as a motion filed pursuant to Texas Rule Civil Procedure 306a(5). See TEX. R. CIV. P. 306a(5) (allowing party adversely affected by judgment to prove date he received notice of judgment was more than twenty days after judgment was signed). Under Rule 306a(5), post-judgment timetables begin on the date the party received notice of the judgment so long as the party adversely affected by the judgment can establish he did not receive notice of the judgment from the district clerk within twenty days of the judgment's signing. See id. We, therefore, abated his appeal and remanded the cause to the trial court to determine the date appellant received notice or acquired actual knowledge of the signing of the judgment. See id.
Thereafter, the district clerk filed a supplemental clerk's record, containing a Notice of Court Order, indicating the final decree of divorce was mailed to appellant on January 14, 2016. The supplemental clerk's record also contained a signed certified mail receipt, postmarked January 14, 2016 and file stamped January 25, 2016. As indicated above, the final divorce decree was signed on January 12, 2016, and the supplemental clerk's record reflects appellant received notice of the judgment by January 25, 2016 - which was within twenty days after the judgment was signed. Accordingly, we conclude appellant received timely notice of the judgment, and rule 306(a) does not apply to create a new date for starting the appellate timetable for appellant.
Although the receipt does not specify the date it was delivered, we can assume the receipt was signed between January 14, 2016 and January 25, 2016 based on the postmark and file stamped dates. --------
We therefore hold appellant's notice of appeal was untimely, and as a result, this court is without jurisdiction. We thus dismiss the appeal for want of jurisdiction.
PER CURIAM