Betty M. Robinson and Bill Robinson v. State of Texas

• Court: Court of Appeals of Texas
• Decided: March 6, 1997
• Docket: 03-97-00038-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-97-00038-CV

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Betty M. Robinson and Bill Robinson, Appellants

v.

State of Texas, Appellee

FROM THE DISTRICT COURT OF MILLS COUNTY, 35TH JUDICIAL DISTRICT

NO. 95-09-4982, HONORABLE ERNEST CADENHEAD, JUDGE PRESIDING

PER CURIAM

A final judgment was rendered in this cause on September 13, 1996. A motion for new trial was timely filed on October 14, 1996. The motion extended the deadline by which appellants must file a perfecting instrument to the first business day after ninety days had expired, or to December 12, 1996. However, appellants Betty M. Robinson and Bill Robinson did not file a perfecting instrument until December 13, 1996. ⁽¹⁾

Appellants move this Court to assert jurisdiction over the appeal because they had inadvertently miscalculated the ninety day deadline. They also request that we assert jurisdiction because the question they intend to raise on appeal is a question of first impression in this State. We cannot grant their request on either basis.

A timely filed perfecting instrument is jurisdictional. Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978). This Court has no power to extend the deadlines unless the cost bond and a motion to extend the time to file the cost bond was filed within fifteen days of the date the perfecting instrument was due. See Tex. R. App. P. 41(a)(2). It was not. See B. D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 862 (Tex. 1982) (court of appeals has no jurisdiction to consider a late-filed motion to extend time to file).

Accordingly, we dismiss this appeal for want of jurisdiction. We also dismiss appellants' motion for extension of time to file the statement of facts.

Before Justices Powers, Jones and Kidd

Appeal Dismissed for Want of Jurisdiction

Filed: March 6, 1997

Do Not Publish

1. The cost bond was file-stamped December 16, 1996. In his affidavit, appellants' attorney asserts that the cost bond was deposited in first-class United States mail on December 13, 1996. We accept this as true.