Gary Campbell v. Amanda Leal

• Court: Court of Appeals of Texas
• Decided: November 21, 2012
• Docket: 04-12-00654-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas

MEMORANDUM OPINION No. 04-12-00654-CV

Gary CAMPBELL, Appellant

v.

Amanda LEAL, Appellee

From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2012-CI-11077 Honorable Larry Noll, Judge Presiding

PER CURIAM

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Marialyn Barnard, Justice

Delivered and Filed: November 21, 2012

DISMISSED FOR WANT OF JURISDICTION

Appellant Gary Campbell appeals from the trial court’s protective order signed August

14, 2012. 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, his notice of appeal was

due September 13, 2012, or a motion for extension of time to file the notice of appeal was due

fifteen days later on September 28, 2012. See TEX. R. APP. P. 26.1, 26.3. Appellant did not file a 04-12-00654-CV

timely notice of appeal or a motion for extension of time to file the notice of appeal. Appellant

filed a notice of appeal on October 10, 2012.

A motion for extension of time is necessarily implied when an appellant, acting in good

faith, files a notice of appeal beyond the time allowed by Rule 26.1 but within the fifteen-day

grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v.

Dorner, 959 S.W.2d 615, 615 (Tex. 1997) (construing predecessor to Rule 26). But “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.” Id. Here, the period for granting a motion for

extension of time passed before appellant filed his notice of appeal.

On October 29, 2012, we ordered appellant to file, on or before November 28, 2012, a

response showing cause why this appeal should not be dismissed for lack of jurisdiction and

advised appellant the appeal would be dismissed if he failed to satisfactorily respond within the

time provided. See TEX. R. APP. P. 42.3(a), (c).

On November 5, 2012, appellant responded to our October 29, 2012 order by stating “this

appeal should not be dismissed for lack of jurisdiction due to me ‘Gary Campbell’ being indigent

and pro se.” Neither appellant’s indigence nor his appearance pro se confers jurisdiction on this

court. See Howlett v. Tarrant County, 301 S.W.3d 840, 843 (Tex. App.—Fort Worth 2009, pet.

denied); In re K.L.V., 109 S.W.3d 61, 67 (Tex. App.—Fort Worth 2003, pet. denied). Rather, a

timely filed notice of appeal confers jurisdiction on this court, and absent a timely filed notice of

appeal, we must dismiss the appeal. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997);

Howlett, 301 S.W.3d at 843. Accordingly, because appellant did not file a timely notice of

appeal, we have no jurisdiction and must dismiss. See Howlett, 301 S.W.3d at 843; see also

Mid-Continent Cas. Co. v. Safe Tire Disposal Corp., 2 S.W.3d 393, 395 (Tex. App.—San

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Antonio 1999, no pet.) (holding that when appellate court lacks jurisdiction, it must dismiss

appeal). We therefore dismiss this appeal for want of jurisdiction.

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