law-DWOJ-appeal | appeal dismissed for want / lack of jurisdiction | failure to invoke appellate jurisdiction by
timely filing notice of appeal (NoA) | untimely notice of appeal | motion for extention of time to file notice of
appeal | interlocutory appeals |
Appellate jurisdiction is never presumed. Brashear v. Victoria Gardens of McKinney, L.L.C., 302
S.W.3d 542, 546 (Tex. App.-Dallas 2009, no pet.). Unless the record affirmatively shows the propriety
of appellate jurisdiction, we must dismiss. Id. Our jurisdiction over appeals is established by
constitutional and statutory enactments. Beckhav Grp., P.C. v. Snyder 315 S.W.3d 244, 245 (Tex.
App.-Dallas 2010, no pet.). Without a timely filed notice of appeal, this Court lacks jurisdiction. See
Tex. R. App. P. 25.1.
Absent a timely filed notice of appeal from a final judgment or recognized interlocutory order, we do
not have jurisdiction over the appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.
2001); see Tex. R. App. P. 2, 25.1(b), 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).
DWOJ ON APPEAL: Dismissal for Want of Jurisdiction (no appellate jurisdiction)
09-0351 ROBERT D. HENTNIK v. DIANE E. HENTNIK; from Gillespie County; 4th district (04-08-00868-CV, ___
SW3d ___, 02-11-09)(missed deadline for filing of notice of appeal and 15-day grace period for motion to
extend time to file notice of appeal, appeal dismissed for want of jurisdiction DWOJ)
The trial court signed a final judgment on August 5, 2008. Appellant timely filed a motion for new trial on
September 3, 2008. Therefore, the notice of appeal was due to be filed on November 3, 2008, ninety days after
the date the judgment was signed. See Tex. R. App. P. 26.1(a). A motion for extension of time to file the
notice of appeal was due on November 18, 2008, fifteen days after the deadline for filing notice of appeal.
See Tex. R. App. P. 26.3. Appellant filed his notice of appeal, and a motion for extension of time to file the
notice of appeal, on November 25, 2008, after the fifteen-day grace period allowed by Rule 26.3. Tex. R. App.
P. 26.3.
On December 2, 2008, appellee filed a motion to dismiss this appeal for want of jurisdiction. On January
7, 2009, after the clerk's record had been filed, we ordered appellant to show cause in writing why this appeal
should not be dismissed for lack of jurisdiction. Appellant responds that he erroneously believed the
appellate deadline for perfecting appeal ran from the date his motion for new trial was denied on October 23,
2008. Appellant also states that the trial court told him at the hearing on the motion for new trial, held on
October 17, 2008, that "your time table on your appellate process begins to run today." Explaining that his
failure to timely file a notice of appeal was neither intentional or deliberate, he asks that we allow him to
continue with his appeal. We have no jurisdiction, however, to grant his request.
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, 617 (Tex. 1997)
(construing the predecessor to Rule 26); In re Estate of Padilla, 103 S.W.3d 563, 567 (Tex. App.--San Antonio
2003, no pet.). Accordingly, we: grant appellee's motion to dismiss; deny appellant's motion to extend the
time to file the notice of appeal; and dismiss the appeal for lack of jurisdiction. See Tex. R. App. P. 42.3(a).
Costs of appeal are taxed against appellant.
OTHER REASONS FOR JURISDICTIONAL DISMISSAL:
No final order/judgment and no statutory authorization for interlocutory appeal.
---> finality of judgment