Jose Perez Jr. v. Salud Cazares

Opinion

Fourth Court of Appeals

San Antonio, Texas

July 1, 2016

No. 04-16-00194-CV

Jose PEREZ Jr.,

Appellant

v.

Salud CAZARES,

Appellee

From the 83rd Judicial District Court, Val Verde County, Texas Trial Court No. 3287CCL

Honorable Robert Cadena, Judge Presiding

ORDER

Appellant Jose Perez Jr. appeals a Final Decree of Divorce signed on January 12, 2016.

The notice of appeal was due February 11, 2016, but was not filed until March 17, 2016. Therefore, we ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. In response, appellant asserted he did not receive notice of the judgment in a timely manner. See TEX. R. APP. P. 4.2; TEX. R. CIV. P. 306a. We construe his response as a motion filed pursuant to Texas Rule Civil Procedure 306a(5). See TEX. R. CIV. P. 306a(5) (allowing party adversely affected by judgment to prove date he received notice of judgment was more than after twenty days judgment was signed).

We, therefore, ORDER this appeal abated and remand the cause to the trial court to determine the date appellant received notice or acquired actual knowledge of the signing of the judgment. See TEX. R. APP. P. 4.2(b)-(c); TEX. R. CIV. P. 306a.5. The trial court may, in its discretion, receive evidence by sworn affidavit from the appellant.

We further ORDER the trial court clerk to file a supplemental clerk=s record on or before August 1, 2016 containing the trial court=s ruling regarding the date appellant received notice of judgment.

All appellate deadlines are suspended pending our determination of whether we have jurisdiction over this appeal.

_________________________________

Marialyn Barnard, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 1st day of July, 2016.

___________________________________

Keith E. Hottle Clerk of Court