SAR 1 Semi-Automatic Assault Rifle With Magazine v. State

• Court: Court of Appeals of Texas
• Decided: May 3, 2017
• Docket: 07-17-00059-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-17-00059-CV ________________________

SAR 1 SEMI-AUTOMATIC ASSAULT RIFLE WITH MAGAZINE, ET AL., APPELLANTS

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 137th District Court Lubbock County, Texas Trial Court No. 2016-522,855; Honorable Les Hatch, Presiding

May 3, 2017

ORDER ON APPELLANT’S MOTION FOR REINSTATEMENT AND MOTION TO EXTEND TIME TO FILE NOTICE OF APPEAL Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

By opinion and judgment dated March 7, 2017, this appeal was dismissed for

failure to pay the required filing fee.1 The filing fee has now been paid and payment

was accompanied by Appellant’s Motion for Reinstatement. We grant that motion and

1 SAR 1 Semi-Automatic Assault Rifle with Magazine v. State, No. 07-17-00059-CV, 2017 Tex. App. LEXIS 1901 (Tex. App.—Amarillo March 7, 2017, no pet.) (mem. op.). reinstate the appeal. Also pending before this court is the Motion to Extend Time to File

Notice of Appeal filed by the real party in interest, Joe Dray Rushing. We deny that

motion.

ANALYSIS

According to the limited record before this court, the trial court signed a default

judgment against Mr. Rushing on November 14, 2016. Because no post-judgment

motions were ever filed, his notice of appeal was due thirty days later, by December 14,

2016. See TEX. R. APP. P. 26.1(a). This deadline could have been extended to

December 29th with a motion for extension. See Id. at 10.5(b), 26.3. He did not,

however, file a notice of appeal until February 10, 2017. In his motion to extend the

time to file his notice of appeal, Mr. Rushing requests that we apply the date his

attorney became aware of the default judgment, allegedly December 27, 2016, for

purposes of determining the filing deadline under Rule 26.1(a). We decline to do so as

he has failed to comply with Rule 4.2 of the Texas Rules of Appellate Procedure. See

TEX. R. APP. P. 4.2.

If a party does not receive notice or acquire actual knowledge of a judgment

within twenty days of its signing, the period to file a notice of appeal will not begin to run

until the date the party receives notice. Id. at 4.2(a). To gain this additional time to file

a notice of appeal, a party must comply with Rule 306a(5) of the Texas Rules of Civil

Procedure and prove in the trial court, upon sworn motion, the date on which the party

or his attorney first received notice of the judgment. Id. at 4.2(b); TEX. R. CIV. P.

306a(5). The Rule 306a(5) motion must be filed while the trial court retains plenary

power, measured from the alleged date of notice in the motion. See TEX. R. CIV. P.

2 329b(d); John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 741 (Tex. 2001) (per

curiam). Finally, the trial court must issue a written order that finds the date the party

received notice. See TEX. R. APP. P. 4.2(c).

Thus, to proceed under Rule 4.2 of the Texas Rules of Appellate Procedure, Mr.

Rushing was required to file a Rule 306a(5) motion in the trial court, present proof, and

obtain an order from the trial court specifically finding the date he or his attorney first

received notice of the default judgment. He was also required to file the Rule 306a(5)

motion by January 26, 2017, within the trial court’s plenary power, measured by the

date he allegedly received notice.2 See Goodwill v. Tex. A&M Univ. Med. Sch., No. 03-

04-00255-CV, 2004 Tex. App. LEXIS 5784, at *5-6 (Tex. App.—Austin July 1, 2004, no

pet.) (mem. op.). Having failed to file a Rule 306a(5) motion within the trial court’s

plenary jurisdiction, he cannot satisfy the requirements of Rule 4.2 of the Texas Rules of

Appellate Procedure, and therefore, he cannot benefit from the rule’s extension of the

appellate timetable. See id. at *6. Since Mr. Rushing’s notice of appeal was not timely

filed under Rule 26.1(a) of the Texas Rules of Appellate Procedure, we are without

jurisdiction to entertain a direct appeal from the default judgment. See TEX. R. APP. P.

25.1(b), 26.1(a).

In the interest of justice, however, we construe Mr. Rushing’s notice of appeal as

a notice of restricted appeal. See TEX. R. APP. P. 25.1(d)(7) (required contents for

2 The trial court’s plenary power expired thirty days after December 27, 2016, the date Mr. Rushing’s attorney alleges he learned of the default judgment. See TEX. R. CIV. P. 329b(d) (the trial court’s plenary power expires thirty days after the judgment is signed); Wells Fargo Bank, Nat’l Ass’n v. Erickson, 267 S.W.3d 139, 148-49 (Tex. App.—Corpus Christi 2008, no pet.) (explaining that the trial court’s plenary power over a 306a(5) motion is counted from the date of notice asserted in the 306a(5) motion). Because Mr. Rushing has judicially admitted that he received notice not later than December 27, 2016, the trial court’s plenary power expired not later than January 26, 2017.

3 notice of restricted appeal); 26.1(c) (notice of restricted appeal must be filed within six

months after the judgment is signed); 30 (allowing a party to file a restricted appeal if

the party did not participate in the hearing resulting in the judgment complained of and

did not timely file a post-judgment motion, request for findings of fact and conclusions of

law, or a notice of appeal within the time permitted by Rule 26.1(a)).

Having reinstated the appeal as a restricted appeal, we direct Mr. Rushing to file

an amended notice of appeal that complies with Rule 25.1(d)(7) on or before May 12,

2017. See TEX. R. APP. P. 25.1(d)(7). We further direct that Mr. Rushing make

acceptable payment arrangements for the clerk’s record and that he request preparation

of and make acceptable payment arrangements for the reporter’s record, if any, in

compliance with Rules 35.3(a)(2) and (b)(3) of the Texas Rules of Appellate Procedure.

See TEX. R. APP. P. 35.3(a)(2), (b)(3). Given the uncertainty of a date by which to

commence appellate timetables, we deem Mr. Rushing’s restricted notice of appeal to

be filed as of the date of this order. Accordingly, the appellate record must be filed

within thirty days of the date of this order. See TEX. R. APP. P. 35.1(c). Appellate briefs

will be due in accordance with the deadlines provided in Rule 38.6 of the Texas Rules of

Appellate Procedure. See TEX. R. APP. P. 38.6.

It is so ordered.

Per Curiam