in the Interest of I. K. and E. K., Children

• Court: Court of Appeals of Texas
• Decided: April 14, 2022
• Docket: 08-22-00055-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS §

IN THE INTEREST OF I. K. AND E. K., § No. 08-22-00055-CV CHILDREN, § Appeal from the Appellant. § 383rd District Court

§ of El Paso County, Texas

§ (TC# 2019DCM7783)

§ ORDER

This matter is before the Court to determine whether to dismiss this appeal for want of

jurisdiction. We will ABATE this appeal for fifteen days and withhold dismissal pending further

inquiry.

The 383rd District Court signed a final judgment in this case dated February 1, 2022.

Appellant filed his notice of appeal on April 1, 2022. Because the notice of appeal appeared to be

untimely filed, we questioned our jurisdiction over this matter and directed Appellant to show

cause why this case should not be dismissed for want of jurisdiction. In his response to the Court,

Appellant averred that he did not receive notice of the trial court's February 1 judgment until

March 11, 2022. As such, under Tex.R.Civ.P. 306a(4), the April 1 notice of appeal was timely

because it was filed within 30 days of the date Appellant received actual notice of the trial

court’s judgment.

1 In order to establish the date of actual notice of a judgment for purposes of the appellate

timetables under Rule 306a(4), the party adversely affected is required to prove in the trial court,

on sworn motion and notice, the date on which the party of his attorney either first received

notice of the judgment or acquired actual knowledge of the signing. See Tex.R.Civ.P. 306a(5),

Hanash v. Walter Antiques, Inc., 551 S.W.3d 920, 924-25 (Tex.App.--El Paso 2018, pet. denied).

At this time, we do not have proof such a motion has been filed in the trial court or that the trial

court has otherwise established the late notice date this Court should use, as is required by Rule

306a(5).

Therefore, we ORDER this appeal to be abated for FIFTEEN DAYS to provide

Appellant with the opportunity to either (1) show proof that the trial court has issued a Rule

306a(5) order that designates the date of actual notice of judgment, or (2) file a proper Rule

306a(5) motion with the trial court and provide this Court with proof such motion has been filed.

Failure to provide these items to this Court before the abatement period ends may result in

dismissal of this action without further notice to the parties.

IT IS SO ORDERED this 14th day of April, 2022.

PER CURIAM

Before Rodriguez, C.J., Palafox and Alley, JJ.