Jaime Dominguez v. Duke Hooten

• Court: Court of Appeals of Texas
• Decided: April 17, 1996
• Docket: 03-96-00089-CV
• Status: Published

Opinion

Dominguez v. Hooten

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-96-00089-CV

Jaime Dominguez, Appellant

v.

Duke Hooten, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT

NO. B-95-0658-C, HONORABLE CURT F. STEIB, JUDGE PRESIDING

PER CURIAM

Jaime Dominguez attempts to appeal the trial court's judgment dismissing his claim against Duke Hooten as frivolous. See Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (West Supp. 1996). The court signed its judgment on August 29, 1995. Because no party filed a post-judgment motion, Dominguez was required to perfect his appeal by September 28 and to tender the transcript to this Court by October 30. See Tex. R. App. P. 41(a)(1), 54(a).

The transcript arrived at this Court on February 13, 1996, and showed that Dominguez had filed a perfecting instrument on February 6. The Clerk of this Court notified Dominguez of these defects, in response to which Dominguez submitted a supplemental transcript containing his "Motion for Leave To File Late Notice of Appeal." Dominguez explains in this motion that he failed to perfect his appeal timely because jail officials did not mail his notice of appeal to the district clerk's office. Dominguez' hand-written notice of appeal, contained in the original transcript, states that it was executed on September 8, 1995. Copied on the same page of the transcript as the notice of appeal is an envelope addressed to the district clerk that is postmarked February 3, 1996.

Dominguez' explanation for his late perfecting instrument does not explain his late transcript. Apart from any problem he encountered in perfecting his appeal, the burden remained on Dominguez to place the transcript before this Court, either by ensuring a timely filing or by timely moving for an extension of time. Nix v. Fraze, 752 S.W.2d 118, 120 (Tex. App.--Dallas 1988, no writ); Attorney Gen. ex rel. Cal. v. Segree, 694 S.W.2d 383, 384 (Tex. App.--Corpus Christi 1985, no writ). Dominguez has provided us no evidence that he tried to move for an extension of time to file the transcript within the mandated time. See Tex. R. App. P. 54(c).

Absent a timely filed transcript or motion to extend time, this Court lacks jurisdiction to take further action on the appeal other than to dismiss it. B. D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 862 (Tex. 1982); Segree, 694 S.W.2d at 384. We accordingly dismiss the appeal.

Before Justices Powers, Jones and B. A. Smith

Dismissed

Filed: April 17, 1996

Do Not Publish