in the Interest of D.R., C.R. and D.R., Minor Children ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00251-CV
IN THE INTEREST OF D.R., C.R.
AND D.R., MINOR CHILDREN
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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 12278-JR-C
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MEMORANDUM OPINION1
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Appellant Father attempts to appeal from the “Decree Of Termination,”
terminating his parental rights to D.R., C.R., and D.R. The trial court signed the
termination order on June 29, 2015; thus, Father’s notice of appeal was due on
July 20, 2015. See Tex. Fam. Code Ann. § 263.405(a) (West 2014) (providing
that appeals from final termination orders are accelerated); Tex. R. App. P. 4.1(a)
(providing that if due date falls on a Saturday, Sunday, or legal holiday, it is
extended until the next day that is not a Saturday, Sunday, or legal holiday),
1
See Tex. R. App. P. 47.4.
26.1(b) (requiring notice of appeal in accelerated case to be filed within twenty
days of appealable order or judgment). The notice of appeal was not filed until
July 28, 2015.
On August 5, 2015, we notified Father that it appeared we lacked
jurisdiction over this appeal because the notice of appeal was not timely filed.
See Tex. R. App. P. 26.1(b). We advised him that this appeal could be
dismissed unless he, or any party desiring to continue the appeal, filed a
response showing grounds for continuing the appeal on or before August 17,
2015. See Tex. R. App. P. 42.3(a). Father did not file a response. On August
21, 2015, the Department filed a motion to dismiss the appeal.
The time for filing a notice of appeal is jurisdictional in this court, and
absent a timely-filed notice of appeal or extension request, we must dismiss the
appeal. See Tex. R. App. P. 2, 25.1(b), 26.3; Jones v. City of Houston, 976
S.W.2d 676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.
1997). 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 appellant would be entitled to move to
extend the filing deadline under rule 26.3. See Jones, 976 S.W.2d at 677;
Verburgt, 959 S.W.2d at 617; see also Tex. R. App. P. 26.1, 26.3. However,
when a motion for extension is implied, it is still necessary for the appellant to
reasonably explain the need for an extension. See Jones, 976 S.W.2d at 677;
Verburgt, 959 S.W.2d at 617.
2
Because Father’s notice of appeal was untimely and because Father did
not provide a reasonable explanation for needing an extension, 2 we grant the
“Department’s Motion to Dismiss Appeal” and dismiss the appeal for want of
jurisdiction. See Tex. R. App. P. 2, 25.1(b), 26.3, 42.3(a), 44.3; Jones, 976
S.W.2d at 677; Verburgt, 959 S.W.2d at 617; see also In re K.A.F., 160 S.W.3d
923, 928 (Tex.) (affirming appellate court’s judgment dismissing appeal from
termination order for want of jurisdiction because notice of appeal was filed more
than twenty days after the trial court’s judgment was signed), cert. denied, 546
U.S. 961 (2005); In re A.N.C., No. 02-09-00429-CV, 2010 WL 1006410, at *1
(Tex. App.—Fort Worth Mar. 18, 2010, no pet.) (mem. op.) (dismissing appeal
from termination order for failure to timely file notice of appeal).
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.
DELIVERED: September 3, 2015
2
Father’s notice of appeal states that it is “outside the 20[-]day appellate
timetable” and further states, “Counsel was notified by Respondent-Father that
he only recently received the Order and immediately notified counsel of his
desire to appeal, but after the deadline to file the Notice of Appeal.” To the
extent Father’s notice of appeal implies that Father did not receive notice of the
judgment in a timely manner, no effort was made to comply with rule 306a(5) of
the rules of civil procedure, and Father’s counsel does not assert that he did not
receive timely notice of the termination order. See Tex. R. App. P. 4.2; Tex. R.
Civ. P. 306a(4), (5).
3