in the Matter of the Marriage of Doug J. McCarver and Dana J. McCarver

• Court: Court of Appeals of Texas
• Decided: January 25, 2023
• Docket: 12-22-00323-CV
• Status: Published

Opinion

NO. 12-22-00323-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE MATTER OF THE § APPEAL FROM THE 420TH

MARRIAGE OF DOUG J. MCCARVER § JUDICIAL DISTRICT COURT

AND DANA J. MCCARVER § NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION PER CURIAM On December 19, 2022, Doug J. McCarver filed a pro se notice of appeal in the trial court. On January 3, 2023, the Clerk of this Court notified Appellant that the notice of appeal does not show the jurisdiction of this Court, i.e., there was no notice of appeal filed within the time allowed by the rules of appellate procedure and no timely motion for an extension of time to file the notice of appeal. See TEX. R. APP. P. 26.1, 26.3. We informed Appellant that the appeal would be dismissed unless the information was amended on or before January 13 to show this Court’s jurisdiction. Appellant did not respond to this Court’s notice. Under Rule 26.1, the notice of appeal must be filed within thirty days after the judgment is signed or, if the case is accelerated, within twenty days after the judgment or order is signed. TEX. R. APP. P. 26.1. Unless the appeal is accelerated, the notice of appeal must be filed within ninety days “after the judgment is signed” if any party timely files a motion for new trial, motion to modify, motion to reinstate, or request for findings of fact and conclusions of law when such could be properly considered by the appellate court. TEX. R. APP. P. 26.1(a)-(b), 28.1(b). Here, the trial court signed its judgment on September 27, 2022, and Appellant filed an untimely request for findings of fact and conclusions of law on November 17. See TEX. R. CIV. P. 296 (request for findings and conclusions shall be filed within twenty days after judgment is signed). Because an untimely request for findings and conclusions does not extend the appellate timetable, Appellant’s notice of appeal was due on or before October 27. See Zhuang v. Zhang, No. 01-17-00518, 2017 WL 5712544, at *1 (Tex. App.—Houston [1st Dist.] Nov. 28, 2017, pet. denied) (per curiam) (mem. op.). Accordingly, Appellant’s notice of appeal was filed outside the time for perfecting an appeal from the September 27, 2022 judgment, or for seeking an extension of time to file a notice of appeal. As this Court is not authorized to extend the time for perfecting an appeal except as provided by the Texas Rules of Appellate Procedure, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a). Opinion delivered January 25, 2022. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

2 COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JANUARY 25, 2023

IN THE MATTER OF THE MARRIAGE OF DOUG J. MCCARVER AND DANA J. MCCARVER

Appeal from the 420th District Court of Nacogdoches County, Texas (Tr.Ct.No. C2036243)

THIS CAUSE came to be heard on the appellate record; and the same being considered, it is the opinion of this Court that this appeal should be dismissed. It is therefore ORDERED, ADJUDGED and DECREED by this Court that this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be certified to the court below for observance. By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.