in the Interest of O.A.P., a Child

• Court: Court of Appeals of Texas
• Decided: February 11, 2015
• Docket: 07-15-00040-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-15-00040-CV

IN THE INTEREST OF O.A.P., A CHILD

On Appeal from the 237th District Court Lubbock County, Texas Trial Court No. 2011-559,782, Honorable Leslie Hatch, Presiding

February 11, 2015

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Pending before us is appellant’s motion to extend the time to file his notice of

appeal pursuant to Texas Rule of Appellate Procedure 26.3. We deny the motion and

dismiss the appeal.

According to the motion, appellant is appealing a judgment entered on October 3,

2014. A request for findings of fact and conclusions of law were timely filed, thereby

requiring the notice of appeal to be filed no later than January 2, 2015. See TEX. R.

APP. P. 26.1(a)(4). The documents on file with this court reflect that the motion to

extend the time to file the notice of appeal was filed on January 20, 2015 and the notice

of appeal was filed with the district clerk on January 26, 2015. Generally, a notice of appeal is due within thirty days after the judgment is

signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is extended

ninety days after the date the judgment is signed if any party timely files a motion for

new trial, motion to modify the judgment, motion to reinstate, or, under certain

circumstances, a request for findings of fact and conclusions of law. See TEX. R. APP.

P. 26.1(a). We may extend the time to file the notice of appeal, however, if, within

fifteen days after the deadline to file the notice of appeal, the appellant properly files a

motion to extend time. TEX. R. APP. P. 26.3, 10.5(b)(1)(2). However, the motion and

notice of appeal must be filed within the fifteen day time period mentioned in the

appellate rules. If not, then the notice is untimely. See Strange v. State, 258 S.W.3d

184, 186-87 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (holding that both the motion

and the notice of appeal were due within fifteen days from the date the notice was due).

Here, appellant was given an opportunity to show why the court had jurisdiction

over the matter. Appellant responded by re-filing the original motion to extend the time

to file his notice of appeal. Appellant was required to file both his notice of appeal and

the motion to extend the time to file his notice of appeal within fifteen days from the date

his notice was due. Even though appellant timely filed the motion on January 20th, the

notice was filed on January 26th, which date fell outside the fifteen day deadline of

January 20, 2015.

Accordingly, we deny the motion to extend the time to file the notice of appeal

and dismiss the appeal.

Per Curiam