in Re Steven D. Evans, Relator

• Court: Court of Appeals of Texas
• Decided: November 1, 2007
• Docket: 07-07-00444-CV
• Status: Published

Opinion

NO. 07-07-0444-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 1, 2007

______________________________

In re STEVEN D. EVANS,

Relator

_________________________________

On Original Proceeding for Writ of Mandamus _______________________________

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

Pending before this court is the application of Steven D. Evans for a writ of mandamus. Through it, he requests that we direct Judge John B. Board of the 181^st District Court of Potter County to act upon his request for DNA testing. The motion was allegedly filed in March of 2007. We deny the application for the reasons which follow. Rules of procedure obligate one seeking mandamus relief to accompany his petition with an appendix. Tex. R. App. P. 52.3(j). The latter must include, among other things, a certified or sworn copy of the document showing the matter complained of. In this case, the document showing the matter complained of would be the motion for DNA testing. However, it was not provided to the court. Nor did he verify by affidavit the factual allegations in his petition. Such was and is also required by the Texas Rules of Appellate Procedure. Tex. R. App. P. 52.3. Similarly, the format of his application for writ does not comport with other requirements of appellate rule 52. For instance, the application contains no identity of the parties and counsel, table of contents, index of authorities, statement of the case, or statement of the issues presented. Rule 52.3 requires one seeking extraordinary relief, such as a writ of mandamus, to include those matters in his petition. And, that Evans may be acting pro se does not relieve him of complying with the rules of procedure. Holt v. F.F. Enters., 990 S.W.2d 756, 759 (Tex. App.-Amarillo 1998, pet. denied).

Accordingly, the application for writ of mandamus pending before this court is denied.

Per Curiam

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NO. 07-10-0047-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

APRIL 13, 2010

______________________________

MILESTONE ARCHITECTURAL ORNAMENTATION, INC., APPELLANT

V.

CECILIA CAMILLE OCHS, APPELLEE

_________________________________

FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;

NO. 97,201-D; HONORABLE DON EMERSON, JUDGE

_______________________________

MEMORANDUM OPINION

            Proceeding pro se through its Chief Executive Officer, Appellant, Milestone Architectural Ornamentation, Inc., filed a notice of appeal from the trial court's judgment in favor of Appellee, Cecilia Camille Ochs.  For the reasons expressed herein, we dismiss this appeal for want of jurisdiction.

            A timely notice of appeal is essential to invoke this Court's jurisdiction.  See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).  A notice of appeal must be filed within thirty days after judgment is signed.  Tex. R. App. P. 26.1.  The deadline is extended to ninety days under certain circumstances.  Id. at 26.1(a).  A further fifteen-day extension is provided by Rule 26.3 of the Texas Rules of Appellate Procedure.

            The limited documents filed in this appeal reflect that the judgment being appealed was signed on October 21, 2009.  A motion for new trial was filed on October 28, 2009, extending the deadline in which to file a notice of appeal to January 19, 2010.  Adding the fifteen day extension,[1] the last possible date in which to file the notice was February 3, 2010. The notice of appeal, however, was not filed until February 4, 2010, beyond all possible deadlines in which to do so.[2] 

Pursuant to Rule 42.3(a) of the Texas Rules of Appellate procedure, Appellant's CEO was notified by letter dated February 17, 2010, to show cause why this appeal should not be dismissed for want of jurisdiction, noting that failure to respond would result in dismissal.  No response was filed.  This Court has no discretion in the matter other than to dismiss the appeal.  Tex. R. App. P. 2. 

            Consequently, this purported appeal is dismissed for want of jurisdiction.

                                                                        Patrick A. Pirtle

      Justice

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[1]A motion for extension of time for the fifteen day deadline is necessarily implied.  See Verburgt  v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).  "[O]nce the period for granting a motion for extension of time . . . has passed, a party can no longer invoke the appellate court's jurisdiction."  Id.

[2] The notice of appeal was hand delivered making Rule 9.2(b) of the Texas Rules of Appellate Procedure inapplicable.