Gerald King v. Tdcj-Id ( 2006 )

Opinion issued April 27, 2006

In The

Court of Appeals  

For The  

First District of Texas  

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NO. 01-05-01121-CV

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GERALD KING, Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE-INSTITUTIONAL DIVISION, Appellee

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On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 22675

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MEMORANDUM OPINION

          The trial court dismissed appellant Gerald King’s suit as frivolous on July 29, 2005. The clerk’s record contains no postjudgment motions and no request for findings of fact or conclusions of law. King did not file his notice of appeal of the dismissal order until November 30, 2005. The Court requested the Clerk of the Court to notify King that unless he filed a response explaining how the Court had jurisdiction of his appeal, it was subject to dismissal. King has filed his response.

          In his response, King asserts that the trial court record should reflect a motion to reinstate filed in the trial court on August 26, 2005; that we have jurisdiction pursuant to Texas Rule of Appellate Procedure 26.1(a)(3). The clerk’s record contains no such motion to reinstate. Even if there were such a motion in the record, it would only extend the time for filing the notice of appeal to 90 days from the date of the signing of the dismissal order. Tex. R. App. P. 26.1(a)(3). In this case, that would have made the notice of appeal due October 27, 2005. King’s notice of appeal, filed November 30, 2005, would still have been 34 days late.

          King next asserts that the Court has jurisdiction of the appeal as a restricted appeal under Texas Rule of Appellate Procedure 26.1(c). A restricted appeal is available only if (1) appellant files the notice of appeal within six months of the judgment, (2) was a party to the underlying suit, (3) did not participate in the dismissal hearing, and (4) shows error apparent on the face of the record. Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004). In his response, King did not even mention an error apparent on the face of the record.

          Next, King asserts Texas Rule of Civil Procedure 306a operates to give the Court jurisdiction over the appeal. To establish the application of this rule, a party must prove in the trial court the date on which the party or his attorney first either received notice of the judgment or acquired actual knowledge of the signing and that this date was more than 20 days after the judgment. Tex. R. Civ. P. 306a(4). In his response, King has not established that he has complied with Texas Rule of Civil Procedure 306a(4).

          Without making an argument, King cites Texas Constitution Article 1, section 13. Presumably, King is referencing the part of that provision that provides that for every injury done to a person, that person shall have remedy by due course of law. Tex. Const. Art. I, § 13. In his response, King has not shown how his late filing of a notice of appeal has deprived him of a remedy by due course of law for an injury, if any, done him.

          Finally, again without argument, King cites American General Fire and Casualty v. Schattman, 761 S.W.2d 582 (Tex. App.—Fort Worth 1988, no writ). Without argument, King has not shown us how this case demonstrates we have jurisdiction under the facts of this case.

          We conclude King has not demonstrated that this Court has jurisdiction over the appeal, and, accordingly, we dismiss it.

PER CURIAM

Panel consists of Justices Nuchia, Hanks, and Bland.