donald-f-hobbs-tdcj-id-691219-v-university-of-texas-medical-branch ( 2002 )

Dismissed and Opinion filed December 19, 2002

Dismissed and Opinion filed December 19, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-02-01189-CV

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DONALD F. HOBBS, TDCJ--ID #691219, Appellant

V.

UNIVERSITY OF TEXAS MEDICAL BRANCH, TEXAS DEPARTMENT OF CRIMINAL JUSTICEBINSTITUTIONAL DIVISION, and DR. ABBAS KHOSHDEL, Individually, Appellees

On Appeal from the 12th District Court

Walker County, Texas

Trial Court Cause No. 21,622

M E M O R A N D U M   O P I N I O N

This is an attempted appeal from an order of dismissal signed July 8, 2002.  Appellant filed an untimely motion for new trial on October 18, 2002.  The same day, appellant also filed a motion to reopen the time for appeal and a motion to reinstate.  The trial court denied these motions on October 25, 2002.  Appellant=s notice of appeal was not filed until October 31, 2002.

The notice of appeal must be filed within thirty days after the judgment is signed when appellant has not filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law.  See Tex. R. App. P. 26.1.  Appellant=s motion for new trial and motion to reinstate were not filed timely. Appellant asserted that he did not receive timely notice of entry of the trial court=s dismissal order.  To gain additional time when lack of notice is alleged, appellant must obtain a signed, written order finding the date he either received notice or acquired actual knowledge that the judgment or order was signed.  Tex. R. App. P. 4.2(c).  Our record contains no such order.

Accordingly, we must conclude appellant=s notice of appeal was not filed timely.  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 grace period provided by Rule 26.3 for filing a motion for extension of time.  See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 9 (1997) (construing the predecessor to Rule 26).  Appellant=s notice of appeal was not filed within the fifteen-day period provided by rule 26.3.

In the absence of a timely filed notice of appeal, this court is without jurisdiction.  Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Opinion filed December 19, 2002.

Panel consists of Chief Justice Brister and Justices Hudson and Fowler.

Do Not Publish C Tex. R. App. P. 47.3(b).