in the Interest Of: M. E. P., a Child ( 2004 )

Opinion issued March 11, 2004

In The

Court of Appeals

For The

First District of Texas

---

NO. 01-03-00796-CV

---

IN THE INTEREST OF M.E.P., A CHILD

---

On Appeal from the 310th District Court

Harris County, Texas

Trial Court Cause No. 1999-14082

---

MEMORANDUM OPINION

          In this appeal from a suit affecting the parent-child relationship, appellant, Serreva Page, who was the respondent in the trial court, challenges a decree that terminated her parent-child relationship with M.E.P., her minor child. The decree was entered on the petition of appellee, Texas Department of Protective and Regulatory Services (TDPRS), which had taken emergency protective custody of M.E.P. pending resolution of the petition. We deny Page’s motion for out-of-time appeal and dismiss the appeal for lack of jurisdiction.

Procedural Background

          On April 30, 1999, on petition of the attorney general, the trial court signed an order that established the parent-child relationship as to M.E.P. This order included the trial court’s finding that Lee A. Enel was the father of M.E.P. and appointed Page as M.E.P.’s managing conservator and Enel as M.E.P.’s possessory conservator.

          On September 29, 2000, TDPRS took emergency possession of M.E.P. without a court order pursuant to sections 262.001 and 262.104 of the Family Code. See Tex. Fam. Code Ann. §§ 262.001, 262.104 (Vernon 2002). On October 2, 2002, TDPRS filed a two-pronged petition that sought (1) to modify the conservatorship under the April 30, 1999 decree, or, alternatively, (2) to terminate Page’s and Enel’s parental rights. See Tex. Fam. Code Ann. §§ 161.001, 161.002, 161.007 (Vernon 2002). The same petition included a suit by TDPRS for protection of a child in an emergency and an original petition to terminate the parent-child relationship. See Tex. Fam. Code Ann. § 262.107 (Vernon 2002).

          Page waived a jury trial. On May 18, 2001, after a two-day trial, the trial court signed a decree that terminated Page’s and Enel’s parental rights. While still represented by counsel, on June 8, 2001, Page filed a verified motion for new trial. The trial court signed an order denying Page’s motion for new trial on July 31, 2001.           The record before us shows that almost two years later, on July 16, 2003, the trial court conducted a hearing and found Page indigent. On July 29, 2003, the trial court signed an order that declared Page indigent for appellate purposes and appointed counsel for appeal. On the previous day, July 28, 2003, Page’s appointed counsel for appeal had filed a notice of appeal to challenge the trial court’s May 18, 2001 decree.

          Before filing her appellant’s brief, Page filed a motion for out-of-time appeal with this Court. In support of this motion, Page alleges that, on two separate occasions, specifically, July 31, 2001 and August 23, 2001, the trial court appointed counsel to represent Page on appeal, but that, due to Tropical Storm Allison, both appointed counsel “never received notice of the[ir] appointment[s] and therefore never prosecuted [Page’s] appeal.” TDPRS filed an independent response in opposition to permitting an out-for-time appeal, and TDPRS’s appellee’s brief on the merits includes a motion to dismiss Page’s appeal for lack of jurisdiction. In both the response and the motion, TDPRS contends that Page’s failure to perfect her appeal timely deprives this Court of jurisdiction.

This Court Lacks Jurisdiction

          Action by this Court that exceeds our jurisdiction is void. See Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003). We conclude that we lack jurisdiction over this appeal. Jurisdiction vests with this Court when a party perfects its appeal by timely filing a notice of appeal in compliance with rule 26.1 of the Rules of Appellate Procedure. See Naaman v. Grider, No. 02-0784, 47 Tex. Sup. Ct. J. 73,74 (Oct. 31, 2003); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); see also Downs v. Trevathan, 783 S.W.2d 689, 690 (Tex. App.—Houston [1st Dist.] 1989, orig. proceeding) (“We have no jurisdiction to accept a notice of appeal filed more than 15 days after it is due.”) (decided under predecessor rule 42(a)(2)). The supreme court has mandated that we construe the requirements of the Rules of Appellate Procedure reasonably and liberally so that the right to appeal is not lost by imposing requirements not necessary to effect the purpose of a given rule. Verburgt, 959 S.W.2d at 616-17. Nevertheless, we may not “alter the time for perfecting an appeal in a civil case” and must dismiss appeals that are not timely perfected. See Tex. R. App. P. 2; Naaman, 47 Tex. Sup. Ct. J. at 74.

          Rule 26.1(a) mandates that a notice of appeal in a civil case be filed within 30 days after the judgment is signed, but extends that deadline to 90 days after the judgment is signed if any party timely files a motion for new trial. See also Tex. R. Civ. P. 329b(g) (recognizing extended deadline for perfecting appeal when motion for new trial timely filed). Because Page timely filed her motion for new trial, she gained the benefit of rule 26.1(a)’s extended timetable. Under that timetable, Page was required to file her notice of appeal by August 16, 2001.

          Rule 26.3 of the Rules of Appellate Procedure allows this Court to grant a 15-day extension of time to file a notice of appeal, provided two conditions are met. The appealing party must (1) file the notice of appeal in the trial court within 15 days of the original deadline and (2) file a proper motion with this Court to request the 15-day extension. Tex. R. App. P. 26.3(a)-(b). Page did not comply with either of these conditions.

          Section 109.002 of the Family Code governs appeals of family-law cases. Tex. Fam. Code Ann. § 109.002 (Vernon 2002). The version of section 109.002(a) in effect when the trial court signed the May 18, 2001 decree provided as follows:

An appeal from a final order rendered in a suit, when allowed under this section or under other provisions of law, shall be as in civil cases generally. An appeal in a suit in which termination of the parent-child relationship is in issue shall be given precedence over other civil cases by the appellate courts.

Tex. Fam. Code Ann. § 109.002(a). However, TDPRS contends that this appeal is governed by new section 263.405(a) of the Family Code and is thus subject to an accelerated-appeal timetable. See Tex. Fam. Code Ann. § 264.405(a) (Vernon 2002); compare Tex. R. App. P. 26.1(a) (normal appellate timetable) with Tex. R. App. P. 26.1(b) (accelerated-appeal timetable). But, given that appellant did not file her appeal until July 23, 2003, her appeal is not timely under either timetable.

          A motion for extension of time to file a notice of appeal may be implied when the appealing party’s filing constitutes a bona-fide attempt to perfect an appeal timely. See Naaman, 47 Tex. Sup. Ct. J. at 74 (citing Verburgt); Verburgt, 959 S.W.2d at 617. The document that constitutes the bona-fide attempt to perfect the appeal may be filed after the deadline to file the notice of appeal, but must be filed before any extended deadline expires. See Naaman, 47 Tex. Sup. Ct. J. at 74; Verburgt, 959 S.W.2d at 617. Verburgt was decided under former rule 41(a)(2) of the Rules of Appellate Procedure and involved a cost bond that was filed late, but within the 15-day extended deadline provided in the rule. In Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex. 1998), the supreme court extended Verburgt and held that an extension of time is implied when a party, acting in good faith, files an affidavit of indigence in lieu of bond within the 15-day extended period under former rule 41(a)(2). The record before us indicates that Page filed nothing within the 15-day extended deadline under rule 26.3. Accordingly, Verburgt does not apply.

Conclusion

          Under the record as presented, we conclude that we lack jurisdiction to address Page’s appeal. Accordingly, we deny appellant’s motion for out-of-time appeal and order this appeal dismissed.

                                                             Elsa Alcala

                                                             Justice

Panel consists of Justices Nuchia, Alcala, and Hanks.