Carl Mott v. Gregory S. Byrd ( 1996 )

Mott v. Byrd

IN THE

TENTH COURT OF APPEALS

No. 10-96-193-CV

     CARL MOTT,

                                                                                              Appellant

     v.

     GREGORY S. BYRD, ET AL.,

                                                                                              Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 29,146

MEMORANDUM OPINION

      Carl Mott attempts to appeal from the court's dismissal of his in forma pauperis petition. Tex. Civ. Prac. & Rem. Code Ann. 13.001-.004 (Vernon Supp. 1997). Because he failed to properly perfect his appeal, we will dismiss for want of jurisdiction.

      Perfection of an appeal is required to invoke our jurisdiction. Welch v. McDougal, 876 S.W.2d 218, 220-22 (Tex. App.—Amarillo 1994, writ denied); El Paso Sharky's Billiard Parlor, Inc. v. Amparan, 831 S.W.2d 3, 5 (Tex. App.—El Paso 1992, writ denied). Because Mott is not exempt from paying the costs on appeal, he is required to file either a cost bond, a cash deposit, or an affidavit of inability to pay costs to perfect this appeal. Tex. Civ. Prac. & Rem. Code Ann. §§ 6.01-6.03 (Vernon 1986 & Supp. 1997); Tex. R. App. P. 40(a)(1), (a)(3); White v. Schiwetz, 793 S.W.2d 278, 279 (Tex. App.—Corpus Christi 1990, no writ). A notice of appeal generally is not a proper instrument by which one may perfect an appeal. See id.

      Mott filed his petition on February 6, 1995. The trial court signed an order dismissing his suit on July 31, 1996. Mott filed a notice of appeal in this court on August 26, and the transcript was filed in this court on August 30. Upon examining the transcript, our clerk determined that Mott had not duly perfected his appeal, and she notified him of this defect by letter. Tex. R. App. P. 40(a)(1), 56(a). On December 6, Mott filed a "Motion to Show Cause," contending that he had indeed properly perfected his appeal because he had included in his notice of appeal an affidavit of inability to pay costs. See Tex. Civ. Prac. & Rem. Code Ann. §§ 132.001, 132.003 (Vernon Pamph. 1997).

      To perfect an appeal, the appellant must file the appropriate instrument, within the appropriate time, in the appropriate court. See Tex. R. App. P. 40(a)(1), 41(a)(1); Chavez v. Housing Auth. of El Paso, 897 S.W.2d 523, 526-27 (Tex. App.—El Paso 1995, writ denied); El Paso Sharky's, 831 S.W.2d at 5. Mott's notice of appeal, filed in this court did not perfect his appeal because it was not filed in the correct court. See id.; see also Tex. R. App. P. 55(b).

      Our clerk notified Mott that the transcript did not demonstrate that his appeal had been duly perfected. Tex. R. App. P. 56(a), 60(a)(2). Even though given the opportunity to cure the defect, he has failed to properly perfect this appeal. Id. 40(a)(1), 83. Thus, the transcript does not show that this court has jurisdiction and "after notice it [has] not [been] amended." Id. 56(a).

      Therefore, we dismiss this cause for want of jurisdiction. Id.

                                                                               PER CURIAM

Before Chief Justice Davis

         Justice Cummings and

         Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed December 18, 1996

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