Jesus Garza v. Mario v. Rios

NUMBER 13-18-00488-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
____________________________________________________________
JESUS GARZA, Appellant,
v.
MARIO V. RIOS, Appellee.
____________________________________________________________
On appeal from the 275th District Court
of Hidalgo County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Benavides
Appellant, Jesus Garza, attempted to perfect an appeal from a judgment entered
by the 275th District Court of Hidalgo County, Texas, in cause number C-6403-13-E. We
dismiss for want of jurisdiction.
Judgment in this cause was signed on May 23, 2018 and a motion for new trial
was timely filed. Appellant filed a notice of appeal on September 6, 2018. On
September 6, 2018, the Clerk of this Court notified appellant that it appeared that the
appeal was not timely perfected. Appellant was advised that the appeal would be
dismissed if the defect was not corrected within ten days from the date of receipt of the
Court’s directive. Appellant responded by filing a motion to extend time to file notice of
appeal.
Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when
notice of appeal is filed within thirty days after the judgment is signed, unless a motion for
new trial is timely filed. TEX. R. APP. P. 26.1(a)(1). Where a timely motion for new trial
has been filed, notice of appeal shall be filed within ninety days after the judgment is
signed. Id. A motion for extension of time is necessarily implied when an appellant,
acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but
within the fifteen-day grace period provided by rule 26.3 for filing a motion for extension
of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18, 619 (1997).
Pursuant to Texas Rule of Appellate Procedure 26.1, appellant’s notice of appeal
was due on August 21, 2018, but was not filed until September 6, 2018. Although
appellant filed a motion for extension of time to file the notice of appeal, the notice of
appeal was filed beyond the fifteen-day grace period. See TEX. R. APP. P. 26.3; Verburgt,
959 S.W.2d at 617–18. Without a timely filed notice of appeal, the Court lacks
jurisdiction over this appeal. See TEX. R. APP. P. 25.1.
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The Court, having examined and fully considered the documents on file, is of the
opinion that the appeal should be dismissed for want of jurisdiction. Accordingly,
appellant’s motion to extend time to file notice of appeal is DENIED and the appeal is
hereby DISMISSED FOR WANT OF JURISDICTION. See TEX. R. APP. P. 42.3(a).
GINA M. BENAVIDES,
Justice
Delivered and filed the
25th day of October, 2018.
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