Ex Parte: Ronroyal J. Owens

• Court: Court of Appeals of Texas
• Decided: February 8, 2019
• Docket: 05-18-01294-CV
• Status: Published

Opinion

DISMISS and Opinion Filed February 8, 2019

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-01294-CV

EX PARTE RONROYAL J. OWENS

On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. X16-897-Q

MEMORANDUM OPINION Before Chief Justice Burns, Justice Whitehill, and Justice Nowell Opinion by Chief Justice Burns After reviewing the clerk’s record, the Court questioned its jurisdiction over this appeal as

it appeared the notice of appeal was untimely. We instructed appellant to file a letter brief

addressing our concern with an opportunity for appellee to file a response. Appellant complied.

The timely filing of a notice of appeal is jurisdictional. See Garza v. Hibernia Nat'l Bank,

227 S.W.3d 233, 233 (Tex. App.—Houston [1st Dist.] 2007, no pet.); TEX. R. APP. P. 25.1(b).

Without a post-judgment motion extending the deadline, a notice of appeal is due within thirty

days of the date of judgment. See TEX. R. APP. P. 26.1.

In his letter brief, appellant concedes that he did not file his notice of appeal within thirty

days of the date of judgment. Relying on Texas Rule of Appellate Procedure 4.2, he asserts his

notice is still timely because he filed it within thirty days of receiving actual knowledge of the

judgment. Id. 4.2. Texas Rule of Appellate Procedure 4.2 provides that, if the party lacks actual knowledge

of the signing of a judgment or appealable order, the running of the appellate deadlines begins on

the date of actual knowledge, not to exceed ninety days after the original judgment is

signed. See TEX. R. APP. P. 4.2(a)(1). The procedure to gain this additional time is governed by

Texas Rule of Civil Procedure 306a(5), which requires a party receiving actual knowledge more

than twenty days after the signing of the judgment, to establish the date of actual knowledge in the

trial court by motion and with notice. See id. 4.2(b); TEX. R. CIV. P. 306a(5). Following a hearing,

the trial court must sign a written order finding the date when the party first received

notice. See TEX. R. APP. P. 4.2(c).

The record before this Court reflects the trial court signed the judgment on August 3, 2018.

Appellant asserts he received actual knowledge on September 19, 2018. However, the record does

not contain the required rule 306a motion or written order establishing the date of actual

knowledge. Under these circumstances, the notice of appeal was due on September 4,

2018. See id. 4.1(a); 26.1. Because appellant filed his notice of appeal on October 25, 2018, we

lack jurisdiction and dismiss this appeal. See TEX. R. APP. P. 42.3(a).

/Robert D. Burns, III/ ROBERT D. BURNS, III CHIEF JUSTICE

181294F.P05

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

EX PARTE RONROYAL J. OWENS On Appeal from the 204th Judicial District Court, Dallas County, Texas No. 05-18-01294-CV Trial Court Cause No. X16-897-Q. Opinion delivered by Chief Justice Burns. Justices Whitehill and Nowell participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

Judgment entered February 8, 2019.

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