Claude R. Wilson v. Melody Wilson

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-95-00101-CV



Claude R. Wilson, Appellant

v.

Melody Wilson, Appellee



FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT NO. B-94-0586-F, HONORABLE DICK ALCALA, JUDGE PRESIDING

PER CURIAM

Appellant Claude R. Wilson tendered a transcript to this Court, seeking to appeal an agreed divorce decree. The Clerk of this Court did not file the transcript because it did not show that Wilson had properly perfected his appeal pursuant to Texas Rule of Appellate Procedure 40(a)(3). Wilson's "Affidavit of Inability to Pay Cost" was not sworn before an officer authorized to administer oaths and officially certified to by the officer under the officer's seal. See Tex. R. App. P. 40(a)(3)(A)(B); see also Texas Gov't Code Ann. § 312.011(1) (West 1988); Barrelle v. Johnson, 741 S.W.2d 590, 591 (Tex. App.--Austin 1987, orig. proceeding). Additionally, the transcript did not show that he gave the required notice to the court reporter, pursuant to Texas Rule of Appellate Procedure 40(a)(3)(B).

The Clerk advised appellant by letter of the defects and gave him an opportunity to correct the perfecting instrument by filing a proper affidavit with the trial court and to move this Court to continue the appeal because either the required notice had been given or was unnecessary in this case. The Clerk asked that the corrections and motion be forwarded to this Court by March 15, 1995. To date, neither a corrected affidavit nor a motion to continue the appeal has been received.

A timely-filed perfecting instrument is jurisdictional. Davies v. Massey, 561 S.W.2d 799, 801 (Tex. 1978). Since the transcript does not include a timely-filed perfecting instrument, we dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 60(a)(2).

Before Chief Justice Carroll, Justices Aboussie and Jones

Appeal Dismissed for Want of Jurisdiction

Filed: April 26, 1995

Do Not Publish