in Re Estate of Mary Ruth Morris

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-96-00378-CV



In Re Estate of Mary Ruth Morris, Deceased



FROM THE COUNTY COURT AT LAW OF TOM GREEN COUNTY NO. 17,408-L, HONORABLE R. L. BLANN, JUDGE PRESIDING

PER CURIAM

Tyrone V. Henry seeks to appeal an April 9, 1996, county court order dismissing John Hay as attorney of record for the estate. ⁽¹⁾ Texas Rule of Appellate Procedure 41(a)(1) requires that an appeal be perfected within thirty days of the signing of an order in the absence of a motion for new trial or a proper request for findings of fact and conclusions of law. Accordingly, Henry should have perfected his appeal by filing a notice of appeal by May 9, 1996. See Tex. Prob. Code Ann. § 29 (West Supp. 1996) (personal representative not required to give bond). However, Henry did not file his notice of appeal until June 6, 1996. This Court has no jurisdiction in the absence of a timely-filed perfecting instrument. Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978).

By letter dated July 9, 1996, the Clerk of this Court advised Henry of his apparent failure to timely perfect his appeal and invited him to submit to the Court a motion to continue the appeal showing grounds justifying its continuance. Henry's motion in response states that he, through his mother, called the Clerk's office to learn when the appeal should be perfected. The motion further asserts that the Clerk advised his mother that the time period within which to perfect an appeal was "100 days, but in some cases it was 60 days." He notes that he filed the notice of appeal within sixty days of the date the judgment was signed and urges us to continue the appeal on the ground that he relied on the Clerk's error.

We note that Henry's motion is not supported by affidavits. See Tex. R. App. P. 19(d). But, even accepting the truth of his assertion, we must dismiss the appeal. This Court does not have the power to extend the appellate timetables, regardless of the circumstances. See B. D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 862 (Tex. 1982) (courts of appeals may not extend time within which to file record). The appellant is solely responsible for timely perfecting his appeal. Pro se appellants, as well as appellants represented by counsel, must comply with applicable procedural rules. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Reliance on the Clerk is justified only to the extent that the Clerk is required by law to provide information, and then only to the extent allowed by law. See, e.g., Tex. R. App. P. 5(b)(3)-(5) (appellate timetable extended when appellant proves that trial court clerk failed to notify parties of date judgment signed and he learns of it more than twenty but less than ninety days later). No rule or statute requires the Clerk to advise appellants regarding the deadlines for perfecting an appeal.

We overrule Henry's motion to continue and dismiss the appeal for want of jurisdiction. Further, we order that Henry bear the costs of appeal. Although Texas Probate Code section 29 exempts a personal representative from giving security in advance, it does not exempt a personal representative from the assessment of costs. Tex. Civ. Prac. & Rem. Code Ann. § 29 (West Supp. 1996); Rodeheaver v. Alridge, 601 S.W.2d 51, 54 (Tex. Civ. App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.).

Before Chief Justice Carroll, Justices Kidd and B. A. Smith

Appeal Dismissed for Want of Jurisdiction

Filed: September 11, 1996

Do Not Publish

1.   We will assume without deciding that the order is appealable. See Tex. Prob. Code Ann. § 5(f) (West Supp. 1996).

Estate of Mary Ruth Morris, Deceased

FROM THE COUNTY COURT AT LAW OF TOM GREEN COUNTY NO. 17,408-L, HONORABLE R. L. BLANN, JUDGE PRESIDING

PER CURIAM

Tyrone V. Henry seeks to appeal an April 9, 1996, county court order dismissing John Hay as attorney of record for the estate. ⁽¹⁾ Texas Rule of Appellate Procedure 41(a)(1) requires that an appeal be perfected within thirty days of the signing of an order in the absence of a motion for new trial or a proper request for findings of fact and conclusions of law. Accordingly, Henry should have perfected his appeal by filing a notice of appeal by May 9, 1996. See Tex. Prob. Code Ann. § 29 (West Supp. 1996) (personal representative not required to give bond). However, Henry did not file his notice of appeal until June 6, 1996. This Court has no jurisdiction in the absence of a timely-filed perfecting instrument. Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978).

By letter dated July 9, 1996, the Clerk of this Court advised Henry of his apparent failure to timely perfect his appeal and invited him to submit to the Court a motion to continue the appeal showing grounds justifying its continuance. Henry's motion in response states that he, through his mother, called the Clerk's office to learn when the appeal should be perfected. The motion further asserts that the Clerk advised his mother that the time period within which to perfect an appeal was "100 days, but in some cases it was 60 days." He notes that he filed the notice of appeal within sixty days of the date the judgment was signed and urges us to continue the appeal on the ground that he relied on the Clerk's error.

We note that Henry's motion is not supported by affidavits. See Tex. R. App. P. 19(d). But, even accepting the truth of his assertion, we must dismiss the appeal. This Court does not have the power to extend the appellate timetables, regardless of the circumstances. See B. D. Click Co. v. Safari Drilling Corp., 638 S.W.2d 860, 862 (Tex. 1982) (courts of appeals may not extend time within which to file record). The appellant is solely responsible for timely perfecting his appeal. Pro se appellants, as well as appellants represented by counsel, must comply with applicable procedural rules. Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978). Reliance on the Clerk is justified only to the extent that the Clerk is required by law to provide information, and then only to the extent allowed by law. See, e.g., Tex. R. App. P. 5(b)(3)-(5) (appellate timetable extended when appellant proves that trial court clerk failed to notify parties of date judgment signed and he learns of it more than twenty but less than ninety days later). No rule or statute requires the Clerk to advise appellants regarding the deadlines for perfecting an appeal.

We overrule Henry's motion to continue and dismiss the appeal for want of jurisdiction. Further, we order that Henry bear the costs of appeal. Although Texas Probate Code section 29 exempts a personal representative from giving security in advance, it does not exempt a personal representative from the assessment of costs. Tex. Civ. Prac. & Rem. Code Ann. § 29 (West Supp. 1996); Rodeheaver v. Alridge, 601 S.W.2d 51, 54 (Tex. Civ. App.--Houston [1st Dist.] 1980, writ ref'd n.r.e.)