Victor Carr v. City of Austin Mayor Bruce Todd The Police Commissioner Officer Michael King And Officer Manuel Pena ( 1995 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00728-CV



Victor Carr, Appellant

v.

City of Austin, Mayor Bruce Todd, the Police Commissioner, Officer Michael King and Officer Manuel Pena, Appellees



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT NO. 94-00737, HONORABLE F. SCOTT MCCOWN, JUDGE PRESIDING

PER CURIAM

Appellant Victor Carr seeks to appeal from a summary judgment of the district court of Travis County that dismisses his claims against appellees Officer Michael King and Officer Manuel Pena. ⁽¹⁾ Because this Court received the transcript untimely, the Clerk asked that Carr submit a motion explaining the grounds for continuing the appeal. See Tex. R. App. P. 56(a), 60(a)(2). Carr has submitted a motion to continue the appeal. We will overrule the motion and dismiss the appeal.

The district court signed the summary judgment on September 15, 1994. Carr timely filed an affidavit of inability to pay the costs of appeal and perfected an appeal to this Court. See Tex. R. App. P. 40(a)(3), 41(a). Because he did not file a motion for new trial, the transcript was due in this Court on November 14; a motion for extension of time to file the transcript was due on November 29. Tex. R. App. P. 54(a), (c). The Clerk of this Court received the transcript on December 9.

In his motion, Carr asserts that the district clerk did not notify him that the transcript had been prepared and forwarded to this Court. See Tex. R. App. P. 51(c); Click v. Tyra, 867 S.W.2d 406, 407 (Tex. App.--Houston [14th Dist.] 1993, orig. proceeding [leave denied]) (Rule 51 requires clerk to prepare and deliver transcript upon perfection of appeal). The deputy district clerk has submitted an affidavit that states that she miscalculated the transcript due date. The deputy district clerk apparently calculated a due date of December 15; therefore, the transcript was delivered to this Court nearly a month late. Nevertheless, Carr had the burden to ensure that the district clerk timely delivered the transcript to the Clerk of this Court or to file a timely motion for an extension of time to file the transcript. Tex. R. App. P. 50(d); Nix v. Fraze, 752 S.W.2d 118, 121 (Tex. App.--Dallas 1988, no writ); Attorney Gen. ex rel. Cal. v. Segree, 694 S.W.2d 383, 384 (Tex. App.--Corpus Christi 1985, no writ).

This Court has no authority to grant an extension of time to file the transcript even if we were to consider the motion to continue as a request for an extension. Carr submitted that motion beyond the time for requesting an extension of time to file a transcript. This Court has no jurisdiction to consider a late-filed motion for an extension of time to file the transcript. ⁽²⁾ Tex. R. App. P. 54(c); Migura v. Migura, 730 S.W.2d 18, 19 (Tex. App.--Corpus Christi 1987, no writ); see Trans-Continental Properties, Ltd. v. Taylor, 717 S.W.2d 890, 891 (Tex. 1986); B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 862 (Tex. 1982).

An appellate court may dismiss an appeal for the failure to file the transcript timely. Tex. R. App. P. 54(a); see Trans-Continental Properties, 717 S.W.2d at 891; Smith v. Smith, 835 S.W.2d 187, 190 (Tex. App.--Tyler 1992, no writ). Because this Court received the transcript more that sixty days after the trial court signed the judgment in this cause, we overrule Carr's motion to continue the appeal and dismiss the appeal.

Before Justices Powers, Kidd and B. A. Smith

Dismissed

Filed: February 22, 1995

Do Not Publish

1. ¹  Carr originally filed suit against the City of Austin, its Mayor Bruce Todd, the City's Police Commissioner and officers King and Pena. Before rendition of the summary judgment, the district court struck the portions of Carr's pleadings that asserted claims against the City, Todd and the Police Commissioner.

2. ²  In Guillen v. DeLeon, 887 S.W.2d 503 (Tex. App.--San Antonio 1994, no writ h.), the court accepted the district clerk's letter and affidavit, filed within the Rule 54(c) time limit, as a timely motion for an extension of time to file the transcript. Id. at 505; see Riviea v. Marine Drilling Co., 787 S.W.2d 189, 191 (Tex. App.--Corpus Christi 1990, no writ) (appellate court determined that reporter's request and affidavit met Rule 54(c) requirements). In this cause, however, we received the deputy district clerk's affidavit on January 6, 1995, more than fifteen days after the transcript was due. Accordingly, we do not address whether we may consider the affidavit as a request for an extension.