Jerry E. Tennell v. Texas Department of Criminal Justice

NO. 12-16-00168-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
JERRY E. TENNELL, § APPEAL FROM THE 349TH
APPELLANT
V.
TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, RICKY
THALER, JIMMY JOE FITZGERALD, § JUDICIAL DISTRICT COURT
W. MORTAL, BRAD LIVINGSTON,
TODD A. FOXWORTH, D. HARDIN,
BOBBY CRAWFORD, OFFICER
HEROD, OFFICER FRANKLIN, AND
OFFICER WOODARD,
APPELLEES § ANDERSON COUNTY, TEXAS
MEMORANDUM OPINION
PER CURIAM
This appeal is being dismissed for want of jurisdiction. The trial court’s order dismissing
Appellant’s suit for want of prosecution was signed on May 21, 2014. Under the rules of
appellate procedure, the notice of appeal must be filed within thirty days after the judgment is
signed. See TEX. R. APP. P. 26.1. But when a motion to reinstate under Texas Rule of Civil
Procedure 165a is filed, the notice of appeal must be filed within ninety days after the judgment
is signed. TEX. R. APP. P. 26.1(a)(3).
On October 29, 2014, 161 days after the dismissal order was signed, Appellant filed a
motion to reinstate the case pursuant to Texas Rule of Civil Procedure 165a(3). To be timely, a
motion to reinstate must be filed with the clerk within thirty days after the order of dismissal is
signed. See TEX. R. CIV. P. 165a(3). Because Appellant filed his motion 161 days after the
dismissal order was signed, the motion was untimely and did not extend the time for filing his
notice of appeal. See TEX. R. APP. P. 26.1(a)(3). Therefore, Appellant’s notice of appeal was
due to have been filed not later than June 20, 2014. However, Appellant did not file his notice of
appeal until June 13, 2016. See TEX. R. APP. P. 26.1. Consequently, his notice of appeal was
untimely, and this Court does not have jurisdiction of the appeal. See TEX. R. APP. P. 25.1(b).
On August 30, 2016, this Court notified Appellant that his notice of appeal was untimely
and that there was no timely motion for extension of time to file such a motion as permitted by
Texas Rule of Appellate Procedure 26.3. Appellant was further informed that the appeal would
be dismissed unless, on or before September 9, 2016, the information in the appeal was amended
to show this Court’s jurisdiction. In response, Appellant filed a document that we have
construed as a motion for extension of time to file the notice of appeal. The motion for extension
of time was due on or before July 7, 2014. See TEX. R. APP. P. 26.3 (motion to extend time for
filing notice of appeal to be filed within fifteen days after deadline for filing notice of appeal).
However, Appellant filed the motion on September 12, 2016. Therefore, it was untimely and
must be overruled. See id.
A timely notice of appeal must be filed in order to invoke this court’s jurisdiction. See
TEX. R. APP. P. 25.1(b). “Once the period for granting a motion for extension of time under Rule
[26.3] has passed, a party can no longer invoke the appellate court’s jurisdiction.” Verburgt v.
Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Accordingly, we overrule the motion for extension
of time and dismiss the appeal for want of jurisdiction.
Opinion delivered September 14, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
2
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
SEPTEMBER 14, 2016
NO. 12-16-00168-CV
JERRY E. TENNELL,
Appellant
V.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE, RICKY THALER,
JIMMY JOE FITZGERALD, W. MORTAL, BRAD LIVINGSTON,
TODD A. FOXWORTH, D. HARDIN, BOBBY CRAWFORD,
OFFICER HEROD, OFFICER FRANKLIN, AND OFFICER WOODARD
Appellees
Appeal from the 349th District Court
of Anderson County, Texas (Tr.Ct.No. 349-7072)
THIS CAUSE came to be heard on the appellate record; and the same
being considered, it is the opinion of this court that this court is without jurisdiction of the
appeal, and that the appeal should be dismissed.
It is therefore ORDERED, ADJUDGED and DECREED by this court that
this appeal be, and the same is, hereby dismissed for want of jurisdiction; and that this decision
be certified to the court below for observance.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.