in the Interest of A. N., a Child ( 2019 )

NO. 12-19-00250-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE 321ST
IN THE INTEREST OF A.N.,
§ JUDICIAL DISTRICT COURT
A CHILD
§ SMITH COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
Richard Nichols, acting pro se, filed a notice of appeal from the “original Temporary
Custody Order and Final Decree of Divorce” in a suit affecting the parent child
relationship. According to the record, the trial court signed an agreed final decree of divorce on
October 28, 2014. The record also contains a temporary restraining order, dated May 28, 2019.
Under the rules of appellate procedure, the notice of appeal must be filed within thirty days
after the judgment is signed. See TEX. R. APP. P. 26.1. Nichols filed his notice of appeal on July
5, 2019; thus, it was untimely. Rule 26.3 provides that a motion to extend the time for filing a
notice of appeal must be filed within fifteen days after the deadline for filing the notice of appeal.
TEX. R. APP. P. 26.3. On July 12, this Court notified Appellant that the information received in
this appeal does not show the jurisdiction of this Court, i.e., there is no timely notice of appeal.
See TEX. R. APP. P. 26.1. Because the May 28 order served as the most recent ruling from the trial
court, Nichols was further notified that, pursuant to Rule 26.3 and Verburgt v. Dorner, 959 S.W.2d
615 (Tex. 1997), we would imply a motion to extend time for filing the notice of appeal. 1 We
1
Nichols’s notice of appeal does not specifically mention the May 28 order, nor are temporary orders in a
custody case appealable. See In re McPeak, 525 S.W.3d 310, 313 (Tex. App.—Houston [14th Dist.] 2017, orig.
proceeding); see also In re Jones, 263 S.W.3d 120, 122 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding).
Nevertheless, in the event Nichols could show this Court’s jurisdiction, we liberally construed his notice of appeal in
light of the Texas Supreme Court’s policy to apply the rules of procedure reasonably but liberally so that the right to
appeal is not lost. See Warwick Towers Council of Co-Owners ex. rel. St. Paul Fire & Marine Inc. Co. v. Park
Warwick, L.P., 244 S.W.3d 838, 839 (Tex. 2008); see also Maxfield v. Terry, 888 S.W.2d 809, 811 (Tex. 1994).
informed Appellant that Rule 26.3 requires a motion complying with Rule 10.5(b). See TEX. R.
APP. P. 10.5(b), 26.3(b). Thus, we notified Nichols that the appeal would be dismissed for want
of jurisdiction unless on or before July 22, Nichols informed this Court, in writing, of facts that
reasonably explained his need for an extension of time to file the notice of appeal. See TEX. R.
APP. P. 42.3. This deadline expired without a written explanation from Nichols.
Although the higher court may grant an out-of-time appeal, we may not suspend the rules
to alter the time to perfect a civil appeal. In re R.B.M., 338 S.W.3d 755, 758 (Tex. App.—Houston
[14th Dist.] 2011, no pet.). 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, the appeal is
dismissed for want of jurisdiction. See TEX. R. APP. P. 42.3(a).
Opinion delivered September 4, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 4, 2019
NO. 12-19-00250-CV
IN THE INTEREST OF A.N., A CHILD
Appeal from the 321st District Court
of Smith County, Texas (Tr.Ct.No. 14-1793-D)
THIS CAUSE came on to be heard on the appellate record, and the same being
considered, it is the opinion of this Court that it is without jurisdiction of the appeal, and that the
appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that this
appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision be
certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.