$494.00 U. S. Currency, et al v. The State of Texas--Appeal from County Court at Law of Gregg County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-05-00126-CV

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$494.00 U.S. CURRENCY, ET AL., Appellants

V.

THE STATE OF TEXAS, Appellee

On Appeal from the County Court at Law No. 2

Gregg County, Texas

Trial Court No. 2003-1886-CCL2

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Justice Ross

MEMORANDUM OPINION

Terrance Lipscomb has filed an attempted appeal from judgments of the County Court at Law Number 2 of Gregg County. The agreed final judgment of forfeiture in this case was signed September 9, 2004. On March 28, 2005, Lipscomb filed a motion for summary judgment seeking to relitigate that final judgment (and recover the money) based on a lack of evidence that the money was linked to criminal activity. The trial court denied the motion for summary judgment by order signed March 29, 2005. Lipscomb filed a notice of appeal October 14, 2005, in which he states that he is bringing a restricted appeal from the order of September 9, 2005.

There are a number of problems with this attempted appeal.

First, the case became final when the agreed judgment was signed September 9, 2004 (not 2005). Rule 26.1 of the Rules of Appellate Procedure requires the notice of appeal to be filed within thirty days of that date in order to invoke the jurisdiction of this Court. Tex. R. App. P. 26.1. None was. The notice of appeal was also well outside the six-month time frame permitted for bringing a restricted appeal. See Tex. R. App. P. 26.1(c). //

Second, if we assumed that Lipscomb was attempting to appeal from the March 29, 2005, order denying his motion for summary judgment, even if it were appealable, the notice of appeal was filed after the expiration of the thirty-day time frame for a regular appeal and after the expiration of the six-month time frame for a restricted appeal. See id.

Third, even if the trial court's plenary power were still alive (which is impossible on these facts), the denial of a motion for summary judgment is not an appealable order. Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994) (orig. proceeding).

In short, it is clear that the appealable order in this case was signed September 9, 2004. The notice of appeal was untimely and does not invoke the jurisdiction of this Court.

We dismiss the appeal for want of jurisdiction.

Donald R. Ross

Justice

Date Submitted: January 24, 2006

Date Decided: January 25, 2006