Maxine Elizabeth Paul v. Texas Department of Human Services ( 1992 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN











NO. 3-92-094-CV





MAXINE ELIZABETH PAUL,

APPELLANT

vs.





TEXAS DEPARTMENT OF HUMAN SERVICES,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 473,126, HONORABLE F. SCOTT MCCOWN, JUDGE

PER CURIAM

Appellant Maxine Elizabeth Paul seeks to appeal from a final decree of termination of parental rights rendered by the district court of Travis County on November 21, 1991. The attorney ad litem for the child has filed a motion to dismiss the appeal. We will overrule the motion and dismiss the appeal for want of prosecution.

Paul filed a timely motion for new trial on December 23, 1991, and a timely affidavit of inability to post appeal bond on February 19, 1992. Tex. R. Civ. P. Ann. 329b(a) (Supp. 1992); Tex. R. App. P. Ann. 41(a) (Pamph. 1992). The transcript was timely filed in this Court on February 28, 1992. Tex. R. App. P. Ann. 54(a) (Pamph. 1992).

The statement of facts was due to be filed no later than March 20, 1992. Id. On April 6, 1992, Paul filed a motion for extension of time within which to file the statement of facts and her brief. ⁽¹⁾ Tex. R. App. P. Ann. 54(c), 74(n) (Pamph. 1992). This Court submitted and dismissed the motion on April 9, 1992. To date, Paul has filed neither a motion requesting this Court to reconsider its disposition nor an amended motion for extension of time.

The attorney ad litem now contends that this Court should dismiss the appeal because Paul failed to notify the court reporter of the filing of her affidavit of inability to post bond and because she has not filed a statement of facts. Tex. R. App. P. Ann. 40(a)(3)(B), 54(a) (Pamph. 1992). Although we agree that the record does not show that Paul timely notified the court reporter of the filing of the affidavit of inability to post appeal bond, we decline to dismiss the appeal on this basis. See generally Jones v. Stayman, 747 S.W.2d 369, 370 (Tex. 1987, orig. proceeding); Matlock v. Allstate Ins. Co., 729 S.W.2d 960 (Tex. App. 1987, no writ); Bantuelle v. Renfroe, 620 S.W.2d 635, 640 (Tex. Civ. App. 1981, orig. proceeding).

Paul also filed a notice of appeal on February 19, 1992. Although Paul is not a party who may perfect an appeal by the filing of a notice of appeal, she may have "file[d] the document in a bona fide attempt to invoke the appellate court's jurisdiction." Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991). The notice of appeal, if properly amended, may be effective to perfect an appeal in spite of any defect in the affidavit of inability to post appeal bond. See Id.

This Court may, however, dismiss an appeal if the appellant fails to file a statement of facts, or a brief. Tex. R. App. P. Ann. 54(a), 74 (l)(1) (Pamph. 1992); see also Tex. R. App. P. Ann. 60 (Pamph. 1992). As stated previously, Paul has taken no action to extend the filing dates since this Court dismissed her motion to extend time. Because Paul has not filed a statement of facts, her brief was due to be filed "within thirty days after the filing of the transcript," that is, on or before March 30, 1992. Tex. R. App. P. Ann. 74(k) (Pamph. 1992).

Accordingly, the motion to dismiss is submitted and overruled. The appeal is dismissed for want of prosecution.

[Before Chief Justice Carroll, Justices Aboussie and B. A. Smith]

Appeal Dismissed for Want of Prosecution

Filed: May 20, 1992

[Do Not Publish]

1. Because April 4, 1992, the fifteenth day was a Saturday, Paul's motion was timely filed. Tex. R. App. P. Ann. 5(a) (Pamph. 1992).