Jesus Garza v. Mario v. Rios

Opinion

NUMBER 13-18-00488-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG ____________________________________________________________

JESUS GARZA, Appellant,

v.

MARIO V. RIOS, Appellee. ____________________________________________________________

On appeal from the 275th District Court of Hidalgo County, Texas. ____________________________________________________________

MEMORANDUM OPINION Before Justices Rodriguez, Contreras, and Benavides Memorandum Opinion by Justice Benavides

Appellant, Jesus Garza, attempted to perfect an appeal from a judgment entered

by the 275th District Court of Hidalgo County, Texas, in cause number C-6403-13-E. We

dismiss for want of jurisdiction. Judgment in this cause was signed on May 23, 2018 and a motion for new trial

was timely filed. Appellant filed a notice of appeal on September 6, 2018. On

September 6, 2018, the Clerk of this Court notified appellant that it appeared that the

appeal was not timely perfected. Appellant was advised that the appeal would be

dismissed if the defect was not corrected within ten days from the date of receipt of the

Court’s directive. Appellant responded by filing a motion to extend time to file notice of

appeal.

Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when

notice of appeal is filed within thirty days after the judgment is signed, unless a motion for

new trial is timely filed. TEX. R. APP. P. 26.1(a)(1). Where a timely motion for new trial

has been filed, notice of appeal shall be filed within ninety days after the judgment is

signed. Id. A motion for extension of time is necessarily implied when an appellant,

acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but

within the fifteen-day grace period provided by rule 26.3 for filing a motion for extension

of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18, 619 (1997).

Pursuant to Texas Rule of Appellate Procedure 26.1, appellant’s notice of appeal

was due on August 21, 2018, but was not filed until September 6, 2018. Although

appellant filed a motion for extension of time to file the notice of appeal, the notice of

appeal was filed beyond the fifteen-day grace period. See TEX. R. APP. P. 26.3; Verburgt,

959 S.W.2d at 617–18. Without a timely filed notice of appeal, the Court lacks

jurisdiction over this appeal. See TEX. R. APP. P. 25.1.

2 The Court, having examined and fully considered the documents on file, is of the

opinion that the appeal should be dismissed for want of jurisdiction. Accordingly,

appellant’s motion to extend time to file notice of appeal is DENIED and the appeal is

hereby DISMISSED FOR WANT OF JURISDICTION. See TEX. R. APP. P. 42.3(a).

GINA M. BENAVIDES, Justice

Delivered and filed the 25th day of October, 2018.