Benjamin Stephens v. Angela Stephens

• Court: Court of Appeals of Texas
• Decided: April 1, 2025
• Docket: 01-24-00955-CV
• Status: Published

Opinion

Opinion issued April 1, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00955-CV ——————————— BENJAMIN LEE STEPHENS, Appellant V. ANGELA MARIE LUMAN, Appellee

On Appeal from the 257th District Court Harris County, Texas Trial Court Case No. 2012-64058

MEMORANDUM OPINION

On December 2, 2024, appellant, Benjamin Lee Stephens, incarcerated and

proceeding pro se, filed a notice of appeal from the trial court’s October 7, 2024

“Default Order in Suit for Modification of Support Order and to Confirm Support

Arrearage.” We dismiss the appeal for lack of jurisdiction.

Absent a timely filed notice of appeal, we lack jurisdiction over an appeal.

See TEX. R. APP. P. 25.1. Generally, a notice of appeal of a final judgment must be

filed within thirty days after the entry of judgment. See TEX. R. APP. P. 26.1.

Accordingly, in order to invoke this Court’s appellate jurisdiction over the trial

court’s October 7, 2024 order, appellant was required to file a notice of appeal on or

before November 6, 2024.

Where a party timely files certain post-judgment motions, the deadline to file

a notice of appeal is extended to ninety days after the entry of judgment. See TEX.

R. APP. P. 26.1(a)(1). Post-judgment motions generally must be filed within thirty

days after the judgment or other order complained of is signed. See TEX. R. CIV. P.

329b(a), (g). The appellate record reflects that appellant did not file a post-judgment

motion in the trial court. Accordingly, appellant’s December 2, 2024 notice of

appeal was not timely filed.

Additionally, Texas Rule of Appellate Procedure 26.3 allows for an extension

of the deadline to file a notice of appeal if, within fifteen days after the deadline for

filing a notice of appeal, an appellant files a notice of appeal in the trial court, and a

motion for extension of time to file a notice of appeal in the appellate court. Taking

this extension into account, appellant was required to file a notice of appeal in the

2 trial court, and a motion for extension of time to file a notice of appeal in this Court,

no later than November 21, 2024.

Appellant’s December 2, 2024 notice of appeal was not filed by the deadline

for filing a notice of appeal, even taking into account the extension provided by

Texas Rule of Appellate Procedure 26.3. Further, the Court’s records do not indicate

that appellant filed a motion to extend the deadline to file his notice of appeal.

Appellant’s December 2, 2024 notice of appeal was therefore not timely filed.

Accordingly, on January 7, 2025, the Court notified appellant that it appeared

the Court lacked jurisdiction over the appeal because his notice of appeal was not

timely filed. Appellant was directed to file a written response within ten days

demonstrating, with citation to law and the record, that the Court had jurisdiction

over the appeal.

On February 19, 2025, appellant filed a response to the Court’s notice. In his

response, appellant argued that the Court has jurisdiction over the appeal because he

did not receive “first notice” of the trial court’s October 7, 2024 order until

November 20, 2024. Appellant’s response did not provide any evidence to establish

the date he received “first notice” of the trial court’s October 7, 2024 order.

Generally, appellate deadlines begin as of the date of the judgment or other

appealable order, and a notice of appeal is due “within 30 days after the judgment is

signed.” See TEX. R. APP. P. 26.1. However, where a party does not receive notice

3 of the judgment or appealable order, appellate deadlines “shall begin on the date that

such party . . . received such notice or acquired actual knowledge of the signing” of

the judgment or appealable order. See TEX. R. CIV. P. 306a(4). For the application

of Texas Rule of Civil Procedure 306a(4) to apply, the adversely affected party “is

required to prove in the trial court, on sworn motion and notice, the date on which

the party . . . first either received a notice of the judgment or acquired actual

knowledge of the signing.” See TEX. R. CIV. P. 306a(5). The appellate record does

not indicate that appellant filed a motion pursuant to rule 306a(5) in the trial court

to establish the date he received notice of the trial court’s October 7, 2024 order.

Absent such evidence, appellate deadlines began to run on October 7, 2024,

and appellant’s December 2, 2024 notice of appeal was not timely filed.

Accordingly, we hold that the Court lacks jurisdiction over this appeal. See TEX. R.

APP. P. 25.1(a)(1).

We therefore dismiss the appeal for lack of jurisdiction. See TEX. R. APP. P.

42.3(a), (c), 43.2(f). All pending motions are dismissed as moot.

PER CURIAM

Panel consists of Justices Guerra, Caughey, and Morgan.