James M. Hanners v. Amy Clark ( 1996 )

Hanners v. Clark

IN THE

TENTH COURT OF APPEALS

No. 10-96-228-CV

     JAMES M. HANNERS,

                                                                                              Appellant

     v.

     AMY CLARK,

                                                                                              Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 52,949-D

MEMORANDUM OPINION

      James Hanners attempts to appeal from a judgment that he contends affected his parental interest in his child. We do not know with certainty the true nature of the cause below because in the documents Hanners has filed in this court he has neither indicated the kind of judgment he is appealing nor has he filed a transcript or statement of facts. We will dismiss Hanners' appeal because he has failed to timely file a record.

      According to Hanners, a judgment was rendered against him on July 5, 1996, and he filed a motion for new trial on August 1, 1996. By operation of Rule 41(a)(1) of the Rules of Appellate Procedure, Hanners had until October 3 to perfect his appeal, which he failed to do. However, on October 17, Hanners filed in this court a motion to extend the time to file his appeal bond. We granted the motion and ordered that the appeal bond be filed by October 18. Assuming Hanners' assertion is true that he filed a $1000 cash deposit in the trial court registry on October 18, Hanners properly perfected his appeal.

      By filing a motion for new trial and properly perfecting his appeal, Hanners had until November 4 to timely file a record. Tex. R. App. P. 5(a), 54(a,c). Under Rule of Appellate Procedure 54(c), Hanners was allowed an additional fifteen days from November 4 in which to move for an extension of time to file his record on showing a reasonable explanation for his failure to file the record timely. Id. 54(c). When no motion was filed by November 19, we sent the parties a letter on November 21 notifying them that the cause was subject to dismissal for failure to timely file a record. See id. 83.

      In a motion postmarked November 20, 1996, and filed November 22, 1996, Hanners requested that we extend the time in which to file the record. The deadline for filing or mailing the motion, however, was November 19. Id. 4(f), 54(a,c). Therefore, Hanners mailed it one day late. Id. We do not have authority to grant an untimely motion to extend the time to file the transcript. Texas Instruments v. Teletron Energy Management, 877 S.W.2d 276, 278 (Tex. 1994); B.D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 862 (Tex. 1982); Jarrell v. Serfass, 916 S.W.2d 719, 720 (Tex. App.—Waco 1996, no writ); Nueces Canyon Consol. Ind. v. Cent. Educ., 900 S.W.2d 417, 419 (Tex. App.—Austin 1995, no writ). Therefore, Hanners' motion to extend the time in which to file the record must be dismissed as untimely.

      Without a timely filed record and with this court lacking the authority to grant an untimely filed motion to extend the time to file the record, this court has no authority to consider Hanners' appeal. Tex. R. App. P. 54(a); B.D. Click Co. v. Safari Drilling Corp., 625 S.W.2d 364, 367 (Tex. App.—Eastland 1981), aff'd, 638 S.W.2d 860 (Tex. 1982); see Jarrell, 916 S.W.2d at 720. Therefore, his appeal is dismissed.

                                                                               PER CURIAM

Before Chief Justice Davis,

         Justice Cummings, and

         Justice Vance

Dismissed for failure to file transcript

Opinion delivered and filed December 18, 1996

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