in the Matter of J.W.M. ( 2004 )

In the Matter of J.W.M.

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 2-04-308-CV

IN THE MATTER OF J.W.M.

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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION ^{(footnote: 1)}

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Appellant J.W.M. is attempting to appeal the trial court’s judgment of delinquency, which was signed June 21, 2004.  Appellant timely filed a motion for new trial, so his notice of appeal was due September 20, 2004; however, Appellant did not file his notice of appeal until October 1, 2004.  Because Appellant’s notice of appeal appeared untimely, we notified Appellant on October 8, 2004 of our concern that this court may not have jurisdiction over the appeal and informed him that unless he or any party desiring to continue the appeal filed with this court a response showing a reasonable explanation for the late filing of the notice of appeal, this appeal would be dismissed for want of jurisdiction.   See Tex. R. App. P. 10.5(b), 26.3(b), 42.3(a).  We have received no response.

The times for filing a notice of appeal are jurisdictional in this court, and absent a timely filed notice of appeal or an extension request, we must dismiss the appeal.   See Tex. R. App. P . 25.1(b), 26.3; Verburgt v. Dorner , 959 S.W.2d 615, 617 (Tex. 1997) (holding once extension period has passed, a party can no longer invoke an appellate court's jurisdiction).  The rules of appellate procedure allow us to extend the time to file a notice of appeal if the party files its notice of appeal within fifteen days after the deadline and files a motion that reasonably explains the need for an extension.   See Tex. R. App. P. 10.5(b)(1)(C), 26.3 .  

A motion for extension of time is necessarily implied when an appellant acting in good faith files a notice of appeal beyond the time allowed by rule 26.1 but within the fifteen-day period in which the appellant would be entitled to move to extend the filing deadline under rule 26.3.   See Verburgt , 959 S.W.2d at 617; see also Tex. R. App. P. 26.1, 26.3.  Even when a motion for extension is implied, however, it is still necessary for the appellant to reasonably explain the need for an extension.   See Verburgt , 959 S.W.2d at 617 .  Because Appellant’s notice of appeal was untimely and he did not provide a reasonable explanation for needing an extension of time to file even after being given the opportunity to do so, we dismiss the appeal for want of jurisdiction.   See Tex. R. App. P. 42.3(a).

PER CURIAM

PANEL D: MCCOY, J.; CAYCE, C.J.; and LIVINGSTON , J.

DELIVERED:  November 24, 2004

FOOTNOTES

1:

See Tex. R. App. P. 47.4.