in the Interest of M.M v. and J.D v. Children ( 2013 )

NUMBER 13-13-00256-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
IN THE INTEREST OF M.M.V. AND J.D.V., CHILDREN
____________________________________________________________
On Appeal from the 148th District Court
of Nueces County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion Per Curiam
Appellant, David Villarreal Jr., proceeding pro se, attempts to appeal from a
judgment rendered on March 1, 2013, terminating his parental rights to M.M.V. and
J.D.V., minor children. Appellant did not file a notice of appeal until May 9, 2013, and did
not file a motion for extension of time to file his notice of appeal. We dismiss the appeal
for want of jurisdiction.
On May 15, 2013, this Court notified appellant, pursuant to Texas Rule of
Appellate Procedure 42.3(a), that his notice of appeal was untimely. The Clerk of this
Court notified appellant of this defect so that steps could be taken to correct the defect, if
it could be done. See TEX. R. APP. P. 37.3, 42.3(b),(c). Appellant was advised that the
appeal would be dismissed for want of jurisdiction if the defect was not corrected within
ten days from the date of receipt of the Court’s notice. Appellant responded to the notice
by filing an “Amendment to the Notice of Appeal and Extension of Time to Perfect
Appeal.” According to this motion, appellant contends that he was required to submit his
notice of appeal within thirty days of the signing of the judgment under Texas Rule of
Appellate Procedure 26.1(b); however, this time limit was extended to ninety days after
signing the judgment because he filed a request for findings of fact and conclusions of
law.
The law cited by appellant is inapplicable to this case. In suits where the
termination of parental rights is in issue, an appeal of a final order is governed by the rules
for accelerated appeals in civil cases. See TEX. R. APP. P. 28.4; see also TEX. FAM. CODE
ANN. '' 109.002(a), 263.405(a) (West Supp. 2011). In an accelerated appeal, the notice
of appeal must be filed within twenty days after the judgment or order is signed. TEX. R.
APP. P. 26.1(b). Unlike an ordinary appeal, the deadline for filing a notice of accelerated
appeal cannot be extended by filing a motion for new trial, motion to modify judgment,
motion to reinstate, or a request for findings of fact and conclusions of law. See id. R.
28.1(b); In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005); see also In re B.G., 317 S.W.3d
250, 252–53 (Tex. 2010). However, an appellate court may extend the time to file the
notice of appeal, if, within fifteen days after the deadline for filing the notice of appeal, the
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party files the notice of appeal in the trial court and files in the appellate court a motion for
extension of time that complies with the appellate rules. TEX. R. APP. P. 26.3; see In re
K.A.F., 160 S.W.3d at 926-27. Further, 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,
619 (1997) (construing the predecessor to Rule 26). In such a case, the appellant must
provide a reasonable explanation for the late filing; it is not enough to simply file a notice
of appeal. Id.
Appellant’s notice of appeal was due to be filed on March 21, 2013, but was not
filed until May 9, 2013. Appellant's notice of appeal was untimely, and we lack
jurisdiction over this appeal. Accordingly, appellant’s motion for leave to file his notice of
appeal is DENIED. Because this Court is not authorized to extend the time for perfecting
an appeal except as provided by Texas Rules of Appellate Procedure 26.1 and 26.3, we
DISMISS the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
PER CURIAM
Delivered and filed the
6th day of June, 2013.
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