in the Interest of A.G., a Child

• Court: Court of Appeals of Texas
• Decided: July 31, 2015
• Docket: 05-15-00795-CV
• Status: Published

Opinion

Dismissed and Opinion Filed July 31, 2015

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00795-CV

IN THE INTEREST OF A.G., A CHILD

On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-10-01938

MEMORANDUM OPINION Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart Opinion by Chief Justice Wright Appellant appeals the trial court’s May 14, 2015 judgment terminating his parental rights.

The notice of appeal was filed in the trial court on June 23, 2015 and reflects a desire to perfect

an accelerated appeal. Appellants docketing statement further indicates that appellant wishes to

perfect a restricted appeal.

By letter dated July 9, 2015, the Court questioned its jurisdiction over the appeal noting

that the notice of appeal appeared to have been filed past the deadline for perfecting an

accelerated appeal and that appellant did not appear to have satisfied the jurisdictional

prerequisites for a restricted appeal. We requested that appellant file a jurisdictional brief

explaining how the Court has jurisdiction over the appeal. To date we have received no

response. Accordingly, we address our jurisdiction sua sponte as we must. M.O. Dental Lab. v.

Rape, 139 S.W.3d 671, 673 (Tex. 2004) (per curiam). Section 109.002 of the Texas Family Code provides, “The procedures for an accelerated

appeal under the Texas Rules of Appellate Procedure apply to an appeal in which the termination

of the parent-child relationship is in issue.” For that reason, rule 26.1(b) applies to an appeal in a

parental rights termination case and requires that the notice of appeal be filed within twenty days

after a judgment or order subject to interlocutory appeal is signed. In re K.A.F., 160 S.W.3d 923,

925 (Tex. 2005). Filing a post-trial motion or request for findings of fact and conclusions of law

will not extend the deadline. Id.

The trial court signed the judgment terminating appellant’s parental rights on May 14,

2015. Absent a rule 26.3 motion, which was not filed in this case, appellant’s notice of appeal

was due on or before June 3, 2015, twenty days after the judgment was signed. The clerk’s

record reflects the notice of appeal was filed in the trial court on June 23, 2015, twenty days

beyond the deadline for filing a notice of accelerated appeal and also beyond the grace period

permitted by rule 26.3. Without a timely filed notice of appeal, this Court lacks jurisdiction. See

TEX. R. APP. P. 25.1(b).

Appellant’s notice of appeal was filed within the statutory deadline for filing a notice of

restricted appeal. See TEX. R. APP. P. 26.1(c) (notice of appeal must be filed within six months

after judgment in a restricted appeal). Appellant’s appeal fails to satisfy the other jurisdictional

requirements for a restricted appeal, however. To be entitled to pursue a restricted appeal, an

appellant must establish: (1) he filed notice of the restricted appeal within six months after the

judgment was signed; (2) he was a party to the underlying lawsuit; (3) he did not participate

either in person or through counsel in the hearing that resulted in the judgment complained of

and did not timely file any post-judgment motions or requests for findings of fact and

conclusions of law; and (4) error is apparent on the face of the record. TEX. R. APP. P. 30; Dole

v. LSREF2 APEX 2, LLC, 425 S.W.3d 617, 620 (Tex. App.—Dallas 2014, no pet.). Each

–2– element is mandatory and jurisdictional. Starks v. Texas Dep’t of Criminal Justice, 153 S.W.3d

621, 626 (Tex. App.—Amarillo 2004, no pet.); C & V Club v. Gonzalez, 953 S.W.2d 755, 757

(Tex. App.—Corpus Christi 1997, no writ). Because the non-participation requirement is

mandatory and jurisdictional, when an appellate court determines that an appellant participated

in the hearing that resulted in the judgment complained of, the appropriate action is to dismiss

the appeal for lack of jurisdiction. Starks, 153 S.W.3d at 626.

Here the reporter’s record reflects that appellant was represented by counsel at the

termination hearing. The clerk’s record also reflects that the appellant filed timely requests for

findings of fact and conclusions of law. Thus appellant has failed to satisfy the jurisdictional

requirements for pursuing a restricted appeal.

Because appellant has failed to satisfy the jurisdictional requirements for pursuing a

restricted appeal and because appellant has not perfected a timely interlocutory appeal, we lack

jurisdiction over the appeal. We dismiss the appeal for lack of jurisdiction.

150795F.P05 /Carolyn Wright/ CAROLYN WRIGHT CHIEF JUSTICE

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

IN THE INTEREST OF A.G., A CHILD On Appeal from the 255th Judicial District Court, Dallas County, Texas No. 05-15-00795-CV Trial Court Cause No. DF-10-01938. Opinion delivered by Chief Justice Wright. Justices Lang-Miers and Stoddart participating.

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

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered July 31, 2015.

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