in Re: Della Mae Farrell, Relator

• Court: Court of Appeals of Texas
• Decided: January 5, 2004
• Docket: 07-03-00494-CV
• Status: Published

Opinion

NO. 07-03-0494-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

JANUARY 5, 2004

______________________________

IN RE DELLA MAE FARRELL

_________________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

MEMORANDUM OPINION

On December 29, 2003, relator, Della Mae Farrell, filed a Motion for Voluntary Dismissal pursuant to agreement of the parties and in accordance with Tex. R. App. P. 42.1(a)(1). The motion includes a certificate of conference and a certificate of service that counsel for all parties was served a copy of the motion by first class mail on December 29, 2003. No response to the motion has been received.

Accordingly, without passing on the merits of the case, appellant's Motion for Voluntary Dismissal is granted and the Petition for Writ of Mandamus is hereby dismissed. Tex. R. App. P. 42.1(a)(1).

All costs are assessed to the relator. Having dismissed the Petition for Writ of Mandamus at the relator's request and the parties not having opposed such request, no motion for rehearing will be entertained.

Phil Johnson

Chief Justice

if">_________________________________

FROM THE 320^TH DISTRICT COURT OF POTTER COUNTY;

NO. 74,777-D; HON. RICHARD DAMBOLD, PRESIDING

_______________________________

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

          Joann McKinney appeals the denial of a motion for new trial wherein her parental rights were terminated. We dismiss for lack of jurisdiction.

          On June 27, 2008, the trial court signed an order terminating McKinney’s parental rights to T.A.M., J.A.M. and S.M.M. On July 24, 2008, McKinney filed a motion for new trial, and a hearing on the motion was convened in August of 2008. Yet, because the trial court determined that it needed to recuse itself, it recessed the proceeding. On October 7, 2008, a new judge was appointed to preside over the matter but did not act upon the motion by written order. It was not until January 2, 2009, that McKinney filed her notice of appeal. Her statement of points on appeal was filed on January 16, 2009.

           Given that termination of parental rights was involved, the appeal was accelerated. Tex. Fam. Code Ann. §109.002(a) (Vernon 2008). So, anyone seeking a new trial was obligated to request one no later than the 15^th day after the date the final order was signed, i.e. July 11, 2008. Id. §263.405(b). Nonetheless, a motion for new trial, even if timely filed, would not extend the deadline for filing a notice of appeal. Id. §263.405(c). Consequently, McKinney’s notice of appeal was due to be filed on or before 20 days after the day the trial court executed the termination order, i.e. on July 16, 2008. Tex. R. App. P. 26.1(b). Because it was not filed until January of 2009, we have no jurisdiction over the proceeding and must dismiss it.

          The appeal is dismissed for lack of jurisdiction.

                                                                           Brian Quinn