Marc Hoskins v. State

• Court: Court of Appeals of Texas
• Decided: March 15, 2007
• Docket: 14-07-00114-CV
• Status: Published

Opinion

Dismissed and Memorandum Opinion filed March 15, 2007

Dismissed and Memorandum Opinion filed March 15, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00114-CV

MARC HOSKINS, Appellant

V.

THE STATE OF TEXAS AND CITY OF GALVESTON, Appellees

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 06CV0669

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from a quo warranto proceeding and, as such, it is accelerated.  See Tex. R. App. P. 28.2.  In an accelerated appeal, the notice of appeal must be filed within twenty days after the judgment is signed.  See Tex. R. App. P. 26.1 (b).  The judgment was signed November 21, 2006.  Accordingly, the notice of appeal was due December 11, 2006.   No notice of appeal was filed on or before that date.  A motion for new trial was filed December 13, 2006, but filing a motion for new trial will not extend the time to perfect an appeal in a quo warranto proceeding.  See Tex. R. App. P. 28.2.  See In re K.A.F., 160 S.W.3d 923, 926 (Tex. 2005).  Appellant=s notice of appeal was filed February 6, 2007.

Appellant=s notice of appeal was not filed timely.  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 9 (1997) (construing the predecessor to Rule 26).  Appellant=s notice of appeal was not filed within the fifteen-day period provided by Rule 26.3.

On February 15, 2007, appellees filed a motion to dismiss the appeal for lack of jurisdiction and a motion for expedited consideration of that motion.  On February 20, 2007, notification was transmitted to all parties of the Court=s intent to dismiss the appeal for want of jurisdiction.  See Tex. R. App. P. 42.3(a). Appellant did not file a response.  The record conclusively demonstrates that this court lacks jurisdiction over this appeal and any response would be futile. 

After the court announced its intention to dismiss for lack of jurisdiction, appellant filed a motion for legislative continuance.  The motion does not satisfy the statutory requirements.   See Tex. Civ. Prac. & Rem. Code ' 30.003(e).  Moreover,   because no appeal was timely perfected, section 30.003 does not apply.  See Schwartz v. Jefferson, 520 S.W.2d 881 (Tex. 1975) (the statute did not apply where no timely appeal was perfected).  Accordingly, the motion for legislative continuance is denied.

This court may dismiss the appeal on its own initiative for want of jurisdiction.  Because the record demonstrates conclusively that this Court does not have  jurisdiction to entertain the appeal, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Memorandum Opinion filed March 15, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.