Russell Terry McElvain v. Robin McElvain

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00255-CV
RUSSELL TERRY MCELVAIN APPELLANT
V.
ROBIN MCELVAIN APPELLEE
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FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 360-468210-09
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MEMORANDUM OPINION1
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Pro se Appellant Russell Terry McElvain attempts to file a restricted appeal
of the trial court’s August 1, 2014 judgment dismissing his cause of action for
want of prosecution. A notice of restricted appeal must be filed within six months
1
See Tex. R. App. P. 47.4.
after the judgment or order complained of is signed.2 Appellant’s notice of
restricted appeal was not filed until July 11, 2016, more than twenty-three months
after the trial court signed the complained-of judgment.
On July 22, 2016, we therefore notified Appellant of our concern that we
lack jurisdiction over this appeal because his notice of appeal was untimely filed,3
and we warned that this appeal could be dismissed absent a response showing
grounds for continuing the appeal.4 On July 29, 2016, Appellant filed an untimely
motion to extend the appellate deadline, which we also treat as his response.
The document does not show grounds for continuing this appeal.
The time for filing a notice of appeal is jurisdictional in this court, and
absent a timely notice of appeal or extension request, we have no choice but to
dismiss the appeal.5 Because Appellant’s notice of restricted appeal and motion
to extend the appellate deadline were both filed too late, we dismiss the pending
motion, and we dismiss this appeal for want of jurisdiction.6
2
See Tex. R. App. P. 26.1(c).
3
See Tex. R. App. P. 26.1.
4
See Tex. R. App. P. 42.3(a).
5
See Tex. R. App. P. 2, 25.1(b), 26.3; Jones v. City of Houston, 976
S.W.2d 676, 677 (Tex. 1998); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.
1997).
6
See Tex. R. App. P. 42.3(a), 43.2(f); Jones, 976 S.W.2d at 677; Verburgt,
959 S.W.2d at 617; see also McElvain v. McElvain, No. 02-16-00256-CV, 2016
WL 4491232, at *1 (Tex. App.—Fort Worth Aug. 26, 2016, no pet. h.) (dismissing
Appellant’s related appeal for same reason).
2
PER CURIAM
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DELIVERED: September 29, 2016
3