Texas Education Agency v. Excellence 2000 INC. and Sherwin Allen

• Court: Court of Appeals of Texas
• Decided: August 15, 2024
• Docket: 01-24-00368-CV
• Status: Published

Opinion

Opinion issued August 15, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-24-00368-CV ——————————— TEXAS EDUCATION AGENCY, Appellant V. EXCELLENCE 2000, INC. AND SHERWIN ALLEN, Appellee

On Appeal from the 125th District Court Harris County, Texas Trial Court Case No. 2022-55524

MEMORANDUM OPINION

Texas Education Agency (TEA) attempts to appeal from the trial court’s order

denying its plea to the jurisdiction signed on April 5, 2024.

In an accelerated appeal such as this one, a notice of appeal is due within 20

days after the date a judgment or order is signed. See TEX. R. APP. P. 26.1(b). The court of appeals may extend the time to file an appeal if, within 15 days after the

original deadline, the party files a notice of appeal in the trial court and a motion to

extend the deadline in the appellate court. See TEX. R. APP. P. 26.3.

There is a limited exception that allows a party to modify the above time

periods for perfecting an appeal when a party lacks notice and actual knowledge of

the trial court’s judgment. See Gabe Reed Prods., LLC v. Starbase Aviation, LLC,

No. 01-12-000512-CV, 2012 WL 4857464, at *1 (Tex. App.—Houston [1st Dist.]

Oct. 11, 2012, no pet.) (per curiam) (mem. op.); see also JRJ Invs., Inc. v. Artemis

Glob. Bus., Inc., No. 01-19-00004-CV, 2019 WL 6315195, at *2 (Tex. App.—

Houston [1st Dist.] Nov. 26, 2019, no pet.) (mem. op.). If a party does not receive

notice or acquire actual knowledge that a judgment or appealable order was signed

within 20 days of the signing, the deadlines above shall begin on the date the party

or his counsel received notice or acquired actual knowledge, whichever is first. See

TEX. R. APP. P. 4.2(a)(1); TEX. R. CIV. P. 306a(4).

But an extension under these rules is not automatic. Griffin v. Galveston Cnty.,

No. 01-23-00377-CV, 2023 WL 5353372, at *1 (Tex. App.—Houston [1st Dist.]

Aug. 22, 2023, no pet.) (per curiam) (mem. op.); JRJ Invs., 2019 WL 6315195, at

*2. To extend a deadline to file a notice of appeal, a party must file a sworn motion

in the trial court to prove the date on which he received notice or acquired actual

knowledge of the trial court’s judgment. See TEX. R. APP. P. 4.2(b); TEX. R. CIV. P.

2 306a(5). After a hearing on the motion, the trial court must sign a written order

specifying the date when the party or the party’s attorney first received notice or

acquired actual knowledge of the trial court’s judgment. TEX. R. APP. P. 4.2(c).

Here, the trial court signed the order denying TEA’s plea to the jurisdiction

on April 5, 2024. Therefore, TEA’s notice of appeal was due by April 25, 2024, or

by May 10, 2024, with a 15-day extension. See TEX. R. APP. P. 26.1(b), 26.3. TEA

did not file its notice of appeal until May 16, 2024. Without a timely filed notice of

appeal, this Court lacks jurisdiction over the appeal. See TEX. R. APP. P. 25.1; In re

United Servs. Auto. Ass’n, 307 S.W.3d 299, 307 (Tex. 2010).

On July 30, 2024, we notified TEA that its appeal was subject to dismissal for

want of jurisdiction unless it filed a response showing grounds for continuing the

appeal. See TEX. R. APP. P. 42.3(a). TEA filed a response alleging that the parties

were never served with the order by the district court, and therefore, it was unaware

of the trial court’s order denying its plea to the jurisdiction until corresponding with

appellees’ counsel on May 8, 2024. But TEA fails to demonstrate, and the record

does not show, that it filed a sworn motion establishing the date it first received

notice or actual knowledge of the judgment, or that the trial court signed a written

order specifying such date. See TEX. R. APP. P. 4.2(b); TEX. R. CIV. P. 306a(5).

Because TEA did not follow the procedures required by Texas Rule of

Appellate Procedure 4.2 and Texas Rule of Civil Procedure 306a to gain additional

3 time to perfect its appeal, TEA’s deadline for filing the notice of appeal was not

extended. See TEX. R. APP. P. 4.2(b); TEX. R. CIV. P. 306a(5); Gabe, 2012 WL

4857464, at *1. Thus, TEA’s notice of appeal filed on May 16, 2024 was untimely,

and we lack jurisdiction over TEA’s attempted appeal. See Mem’l Hosp. of

Galveston Cnty. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam) (holding

that requirements of Rule 306a(5) are jurisdictional); Smith v. Aldine Indep. Sch.

Dist., No. 01-17-00700-CV, 2017 WL 5623579, at *1 (Tex. App.—Houston [1st

Dist.] Nov. 21, 2017, pet. denied) (per curiam) (mem. op.).

Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP.

P. 42.3(a). We dismiss any pending motions as moot.

PER CURIAM

Panel consists of Chief Justice Adams and Justices Hightower and Countiss.