Michael Lopez Martinez v. Texas Department of Human Services ( 1993 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-92-585-CV





MICHAEL LOPEZ MARTINEZ,

APPELLANT

vs.





TEXAS DEPARTMENT OF HUMAN SERVICES, ET AL.,

APPELLEES

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 340TH JUDICIAL DISTRICT

NO. JUV92-0411-C, HONORABLE JOHN SUTTON, JUDGE PRESIDING

PER CURIAM

Appellant Michael Lopez Martinez seeks to appeal from a judgment rendered by the district court of Tom Green County on August 13, 1992. Martinez filed a timely motion for new trial on September 2, 1992. He has timely filed a motion and an amended motion to extend the time for filing an affidavit of inability to give a cost bond on appeal and pay costs. We will dismiss the motion, overrule the amended motion, and dismiss the appeal for want of jurisdiction.

Because Martinez filed a timely motion for new trial, he was required to perfect his appeal no later than November 12, 1992. Tex. R. App. P. 41(a)(1); see Tex. R. App. P. 5(a). He then had fifteen days from November 12th within which to file a motion to extend the time to perfect an appeal. Tex. R. App. P. 41(a)(2). The rule also requires an appellant to file the bond or affidavit of inability or to make a cash deposit "not later than fifteen days after the last day allowed." Tex. R. App. P. 41(a)(2).

An appellant must comply with Rule 41(a)(2) in order to extend the time within which to perfect an appeal. Alvarado v. State, 656 S.W.2d 611, 612 (Tex. App.--San Antonio 1983, no writ); see Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977). Accordingly, Martinez must have filed his affidavit of inability with the district clerk of Tom Green County no later than November 30, 1992. See Tex. R. App. P. 5(a). In his amended motion for extension, Martinez states, "The Affidavit should be available for filing on or before January 9, 1993." Martinez' court-appointed counsel states further that he is unable to contact Martinez to execute the affidavit.

Nevertheless, we may not grant an extension of time because Martinez has not complied with Rule 41(a)(2). We, therefore, dismiss the motion to extend the time for filing the affidavit of inability to give a cost bond on appeal and pay costs and overrule the amended motion to extend time for filing an affidavit of inability to give a cost bond and pay costs. Because Martinez has not timely perfected an appeal, we dismiss the appeal for want of jurisdiction. See Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978) (timely filing of bond or affidavit in lieu thereof is jurisdictional).

[Before Chief Justice Carroll, Justices Jones and Kidd]

Appeal Dismissed

Filed: January 20, 1993

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