In the Interest of E. J. M. v. Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: April 8, 2025
• Docket: 01-23-00688-CV
• Status: Published

Opinion

Opinion issued April 8, 2025

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-23-00688-CV ——————————— IN THE INTEREST OF E. J. M.

On Appeal from the 313th District Court Harris County, Texas Trial Court Case No. 2023-13857

MEMORANDUM OPINION

On September 19, 2023, appellant Donna Valverde filed a notice of restricted

appeal attempting to appeal from a decree of adoption issued on March 20, 2023.

We dismiss the appeal for lack of jurisdiction.

A notice of appeal is generally due to be filed within thirty days after the

judgment is signed. See TEX. R. APP. P. 26.1. A timely filed post-judgment motion

will extend the deadline to file the notice of appeal to ninety days after the judgment is signed. See TEX. R. APP. P. 26.1(a). But a party may file a notice of restricted

appeal within six months after the judgment or order is signed. See TEX. R. APP.

P. 26.1(c).

Rule 30 of the Texas Rules of Appellate Procedure, dealing with restrictive

appeals, provides:

A party who did not participate—either in person or through counsel— in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c). TEX. R. APP. P. 30. A restricted appeal provides a party who did not participate at

trial the opportunity to correct an erroneous judgment.

In a restricted appeal, the filing party must show that: (1) she filed notice of

the restricted appeal within six months after the judgment was signed; (2) she was a

party to the underlying lawsuit; (3) she did not participate 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. See TEX. R. APP. P. 30; Ex parte E.H., 602 S.W.3d 486, 495

(Tex. 2020). The first three requirements are jurisdictional, but the fourth one is not.

See Ex parte E.H., 602 S.W.3d at 497 (holding that fourth requirement is not

jurisdictional as it requires analysis of merits of appellant’s grounds for appeal).

2 Documents filed with our Court include a motion for new trial filed by

Valverde with the trial court on April 11, 2023. The reporter’s record filed with our

Court further demonstrates that a hearing on Valverde’s motion for new trial was

held on April 24, 2023. Valverde was present for the hearing and was represented

by counsel. At the conclusion of the hearing, the trial court denied Valverde’s

motion, finding that Valverde was not a party to the adoption and lacked a legal basis

for filing the motion for new trial.

Appellate courts lack jurisdiction over a restricted appeal when the appellant

filed a timely post-judgment motion. See P & A Real Estate, Inc. v. Am. Bank of

Tex., 323 S.W.3d 618, 619 (Tex. App.—Dallas 2010, no pet.); Ameriquest Mortg.

Co. v. Marron, No. 14-13-00340-CV, 2013 WL 2444602, at *4 (Tex. App.—

Houston [14th Dist.] June 4, 2013, pet. denied). Here, because Valverde filed a

timely post-judgment motion for new trial, we lack jurisdiction and must dismiss the

appeal. See Ameriquest, 2013 WL 2444602, at *4.

On February 27, 2025, the Clerk of this Court notified Valverde that her

appeal was subject to dismissal for lack of jurisdiction unless Valverde filed a written

response by March 10, 2025 demonstrating our Court’s jurisdiction to consider her

appeal. Valverde did not respond.

Accordingly, we dismiss the appeal for lack of jurisdiction. Any pending

motions are dismissed as moot.

3 PER CURIAM

Panel consists of Justices Guerra, Caughey, and Morgan.