Bob Matyastik v. State of Texas ( 1995 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-95-00041-CV



Bob Matyastik, Appellant

v.

State of Texas, Appellee



FROM THE COUNTY COURT OF MILAM COUNTY NO. 7337, HONORABLE ROGER HASHEM, JUDGE PRESIDING

PER CURIAM

Appellant Bob Matyastik moves this Court to continue his appeal from a judgment rendered on April 19, 1993. He perfected his appeal on January 17, 1995, twenty months after the judgment was signed. Matyastik claims that he has good cause to continue the appeal because he first learned of the judgment in December of 1994.

Generally, an appeal must be perfected within thirty days after the judgment is signed. Tex. R. App. P. 41(a)(1). When a person adversely affected by a judgment does not receive notice of the judgment within twenty days after it was signed, Texas Rule of Appellate Procedure 5(b)(4) provides that the beginning of the appellate time period shall be the date that the person actually received notice. See Conaway v. Lopez, 843 S.W.2d 732, 733 (Tex. App.--Austin 1992, no writ). However, rule 5(b)(4) further provides that in no event shall the period begin more than ninety days after the original judgment or other appealable order was signed. Here, since the judgment was signed eighteen months before Matyastik learned of it, rule 5(b)(4) does not apply. ⁽¹⁾

The timely perfection of an appeal is jurisdictional. See Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978). This Court does not have jurisdiction to extend the appellate timetables without a timely filed motion. See Tex. R. App. P. 40(a)(2); Glidden Co. v. Aetna Casualty & Sur. Co., 291 S.W.2d 315, 318 (Tex. 1956); Fite v. Johnson, 654 S.W.2d 51, 52 (Tex. App.--Dallas 1983, no writ). Since Matyastik's appeal was not timely perfected, we deny his motion to continue and dismiss his appeal for want of jurisdiction. See Tex. R. App. P. 60(a)(2).

Before Justices Powers, Kidd and B. A. Smith

Dismissed for Want of Jurisdiction

Filed: March 8, 1995

Do Not Publish

1.   Further, if rule 5(b) did apply, the correct procedure is to initiate a proceeding in the trial court to determine the date upon which notice was received. Tex. R. App. P. 5(b)(5); Conaway v. Lopez, 843 S.W.2d 732, 733 (Tex. App.--Austin 1992, no writ).