in the Interest of M.J.Y, E.T.Y., B.C.Y., V.C.Y., E.G.Y., R.F.Y., S.R.Y., D.A.Y., A.A.Y., X.I.Y., Children
This text of in the Interest of M.J.Y, E.T.Y., B.C.Y., V.C.Y., E.G.Y., R.F.Y., S.R.Y., D.A.Y., A.A.Y., X.I.Y., Children (in the Interest of M.J.Y, E.T.Y., B.C.Y., V.C.Y., E.G.Y., R.F.Y., S.R.Y., D.A.Y., A.A.Y., X.I.Y., Children) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Dismiss and Opinion Filed March 3, 2022
In the Court of Appeals Fifth District of Texas at Dallas No. 05-21-01143-CV
IN THE INTEREST OF M.J.Y, E.T.Y., B.C.Y., V.C.Y., E.G.Y., R.F.Y., S.R.Y., D.A.Y., A.A.Y., X.I.Y., CHILDREN
On Appeal from the 296th Judicial District Court Collin County, Texas Trial Court Cause No. 296-52069-2020
MEMORANDUM OPINION Before Justices Carlyle, Smith, and Garcia Opinion by Justice Carlyle We questioned our jurisdiction over this appeal from the trial court’s final
decree of divorce as it appeared to have been untimely filed. See Brashear v. Victoria
Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.—Dallas 2009, no
pet.) (op. on reh’g) (timely filing of notice of appeal is jurisdictional). As reflected
in the clerk’s record, the decree was signed May 4, 2021. Because appellant timely
requested findings of fact and conclusions of law, the deadline for appealing was
August 2, 2021 or, with an extension motion, August 17, 2021. See TEX. R. APP.
P. 26.1(a), 26.3. The appeal was not filed, however, until December 12, 2021. In jurisdictional briefing filed at our request, and in supplemental briefing,
appellant, who is proceeding pro se and is detained in county jail, asserts he
submitted numerous notices of appeal for mailing between February, when the final
trial was held, and December, and he specifically recalls submitting for mailing a
notice of appeal after May 4 and before August 2.1 He argues that “a person detained
in county jail” has “no way of knowing if something submitted to be mailed was
received and filed,” and he lists several reasons why an incarcerated person “may
not be able to effect successful correspondence with the court.” Appellant urges that
we not let the appeal be “forfeited” and that we “accept” jurisdiction under the
prisoner mailbox rule which deems the filing date of an inmate’s document as the
date the prison authorities received the document for mailing rather than when the
clerk received the document. See Enriquez v. Livingston, 400 S.W.3d 610, 621 (Tex.
App.—Austin 2013, pet. denied) (op. on reh’g).
We are cognizant that pro se inmates must rely on prison authorities for filing
and are sympathetic to appellant not having direct access to the clerk’s office or a
United States mailbox. But nothing in the record, other than appellant’s statements
1 Appellant argues the record is replete with examples of his intent to appeal. In support, he relies on his timely request for findings of fact and conclusions of law and cites to documents in the record where he objected and sought to “preserve error for appeal.” He also notes that in January 2021 he filed a separate appeal from the trial court’s order denying his motion for counsel. See In re M.J.Y., 05-21-00017-CV, 2021 WL 1422653 (Tex. App.—Dallas Apr. 15, 2021, no pet.). That appeal was subsequently dismissed for want of jurisdiction because the order was not a final judgment or appealable interlocutory order. See id. at *1. Appellant argues that order is now appealable and by separate motion asks that we “weigh the timing, expressed intent, and merits” of that appeal “in consideration of the jurisdiction for [this appeal.]” Our plenary power over that appeal, however, has expired. See TEX. R. APP. P. 19.1.
–2– in the affidavit, gives any indication that appellant timely gave a notice of appeal to
prison authorities. Appellant’s statements alone are not enough to establish he timely
submitted the notice of appeal. And we have considered Texas Rule of Appellate
Procedure 2, which allows appellate courts to “suspend a rule’s operation in a
particular case,” but it also specifically prohibits us from “alter[ing] the time for
perfecting an appeal in a civil case.”
This is due to the exceptionally strict and long-standing concept of the court’s
jurisdiction, which a party must timely and properly invoke or it is lost. The rule can
have harsh applications, such as this one, but it is a bright and generally unbendable
line the courts have drawn, and one we are duty-bound to respect. Accordingly,
because the notice of appeal was not timely filed, we must dismiss the appeal. See
TEX. R. APP. P. 42.3(a).
/Cory L. Carlyle// 211143f.p05 CORY L. CARLYLE JUSTICE
–3– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE INTEREST OF M.J.Y, On Appeal from the 296th Judicial E.T.Y., B.C.Y., V.C.Y., E.G.Y., District Court, Collin County, Texas R.F.Y., S.R.Y., D.A.Y., A.A.Y., Trial Court Cause No. 296-52069- X.I.Y., CHILDREN 2020. Opinion delivered by Justice Carlyle, No. 05-21-01143-CV Justices Smith and Garcia participating.
In accordance with this Court’s opinion of this date, we DISMISS the appeal.
Judgment entered this 3rd day of March, 2022.
–4–
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