Chuck L. Harper v. State ( 2012 )

Opinion issued February 23, 2012.

In The

Court of Appeals

For The

First District of Texas

NO. 01-11-00362-CV

____________

CHUCK L. HARPER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 351st District Court

Harris County, Texas

Trial Court Cause No. 1064870

MEMORANDUM OPINION

Appellant Chuck Harper attempts to appeal from the trial court’s order denying his petition for expunction, signed December 6, 2010.[1] 

Generally, a notice of appeal is due within thirty days after the judgment is signed.  See Tex. R. App. P. 26.1.  The deadline to file a notice of appeal is extended to 90 days after the date the judgment is signed if, within 30 days after the judgment is signed, any party files a motion for new trial, motion to modify the judgment, motion to reinstate, or, under certain circumstances, a request for findings of fact and conclusions of law. Id.; Tex. R. Civ. P. 329b(a).

Furthermore, if a party does not receive notice or acquire actual knowledge that a judgment or appealable order was signed within 20 days of the signing, the date the filing periods discussed above commence can be changed from the date the judgment or appealable order is signed to the date the party first received notice or acquired actual knowledge of the signing.  See Tex. R. App. P. 4.2; Tex. R. Civ. P. 306a(4).   To invoke one of these rules, the party must file a sworn motion, provide notice to the other parties, and prove in the trial court the date that notice was received or acquired.  Tex. R. App. P. 4.2(b); Tex. R. Civ. P. 306a(5); see In re Lynd Co., 195 S.W.3d 682, 685 (Tex. 2006); In re Bokeloh, 21 S.W.3d 784, 791 (Tex. App.—Houston [14th Dist.] 2000, orig. proceeding).  The filing periods may not, however, begin more than 90 days after the date of signing; therefore, the party must receive notice or acquire actual knowledge of the signing within 90 days of the date the judgment or order is signed for these rules to apply.  See Lynd, 195 S.W.3d at 683, 685; Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993); Bokeloh, 21 S.W.3d at 791.

Here, the trial court signed the appealable order denying appellant’s petition on December 6, 2010.  A notice of appeal was due by January 5, 2011.  See Tex. R. App. P. 26.1. 

According to the certificate of service attached to appellant’s notice of appeal, the notice was filed on March 22, 2011, which was 76 days past the deadline and 106 days after the order was signed.[2]  See Tex. R. App. P. 9.2(b), 26.1.  

On January 18, 2012, we notified appellant that his appeal was subject to dismissal for want of jurisdiction unless, by February 10, 2012, he filed a response showing that this Court has jurisdiction over this appeal. Appellant filed a response, but it does not show that this Court has jurisdiction.

In his response, appellant states that he did not receive notice of the trial court’s order until March 21, 2011.[3]  Insofar as appellant seeks to invoke Rule of Appellate Procedure 4.2 or Rule of Civil Procedure 306a, appellant’s receipt of notice of the signing of the order more than 90 days after it was signed precludes their application.  See Lynd, 195 S.W.3d at 683, 685; Levit, 850 S.W.2d at 470; Bokeloh, 21 S.W.3d at 791.  Moreover, even if appellant had received the order within 90 days, neither Rule 4.2 nor Rule 306a would apply because appellant failed to file a sworn motion, provide notice to the other parties, and prove in the trial court that he received notice or acquired knowledge of the trial court’s order more than 20 but less than 91 days after the date the order was signed.[4]  See Tex. R. App. P. 4.2(b); Tex. R. Civ. P. 306a(5); Lynd, 195 S.W.3d at 685; Bokeloh, 21 S.W.3d at 791, 792.

Appellant also states in his response that he requested findings of fact and conclusions of law.  This request, however, did not extend the deadline for appellant’s filing of his notice of appeal, because the trial court entered its order on the pleadings and without an evidentiary hearing.  See Tex. R. App. P. 26.1(a)(4); IKB Indus. (Nigeria) Ltd. V. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997)) (“A request for findings of fact and conclusions of law does not extend the time for perfecting appeal . . . where findings and conclusions can have no purpose and should not be . . . considered on appeal.  Examples are  . . . dismissal based on the pleadings . . . and any judgment rendered without an evidentiary hearing.”).  Moreover, even if the request did extend the deadline for filing the notice of appeal, appellant’s notice, filed 106 days after the order was signed, would still be untimely.  See Tex. R. App. P. 26.1(a)(4), 26.3.

Because his notice of appeal was filed 106 days after the trial court’s order was signed, it was not timely.  See Tex. R. App. P. 26.1, 26.3.  Without a timely filed notice of appeal, this Court lacks jurisdiction over the appeal. See Tex. R. App. P. 25.1.

Accordingly, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).  We dismiss any other pending motions as moot. 

PER CURIAM

Panel consists of Justices Jennings, Massengale, and Huddle.

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[1]             The trial court’s order consists of the hand-written notation “DENIED” followed by “12-6-10” and the trial judge’s signature, in the lower-right corner of a notice appellant sent to the Harris County District Clerk.  The Court, like the parties, interprets this notation as an order denying appellant’s petition.

[2]             The notice of appeal was filed in the district clerk’s office on March 25, 2011.

[3]             In Exhibit L to his brief, appellant states that he received notice of the trial court’s order on March 15, 2011.  Even if this statement were properly in evidence before this Court, it would not affect the outcome, because March 15 is still more than 90 days after December 6, 2010.

[4]             Appellant’s verified notice of appeal, which states that he received notice of the trial court’s order on March 21, 2011, was insufficient to satisfy the requirement of filing a sworn motion, which must be brought to the trial court’s attention. Additionally, appellant did not give notice of any claim under Rule 4.2 or Rule 306a to the other parties or prove the date he received notice in the trial court.