Emmit Brager v. Mata, et al.--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-94-357-CV

EMMIT BRAGER,

Appellant

v.

MATA, ET AL.,

Appellees

From the 52nd District Court

Coryell County, Texas

Trial Court # 27,897

MEMORANDUM OPINION

Emmit Brager attempts to appeal from an order dismissing his lawsuit against Mata and the Texas Department of Criminal Justice-Institutional Division. // The court signed the order on September 19, 1994. Brager did not attempt to perfect his appeal until three months later, when he filed a notice of appeal on December 19. Because his action was untimely, we dismiss this attempted appeal for want of jurisdiction. See Tex. R. App. P. 56(a).

A civil litigant who is not exempt from paying costs may perfect an appeal in one of three ways filing a cost bond, filing a cash deposit for costs, or filing an affidavit stating that he is unable to pay the costs of the appeal. Id. 40(a)(1), (3); White v. Schiwetz, 793 S.W.2d 278, 279 (Tex. App. Corpus Christi 1990, no writ). Generally, only governmental entities and their agents are exempt from paying costs. See Tex. Civ. Prac. & Rem. Code Ann. 6.01-6.03 (Vernon 1986 & Supp. 1995). When a private appellant is unable to pay the costs of the appeal, he must file his affidavit of inability to pay within thirty days of the signing of the final order. See Tex. R. App. P. 40(a)(3)(A), 41(a)(1).

Typically, there are three methods by which an appellant may extend the thirty-day deadline for perfecting an appeal: (1) filing an appropriate motion, i.e., a motion for new trial or a request for findings of fact and conclusions of law, id. 41(a)(1); (2) a request for an extension of time, id. 41(a)(2); or (3) a timely filed instrument which is a "bona fide attempt" to invoke the jurisdiction of the appellate court, See Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). // The key is that the filing must be timely, dependent upon the method utilized. See Tex. R. Civ. P. 329b(a) (motion for new trial must be filed with thirty days after the judgment or other order is signed); id. 296 (request for finding of facts and conclusions of law must be filed within twenty days after the judgment is signed); Tex. R. App. P. 41(a)(2) (request for extension of time must be filed within fifteen days after the last day that the appeal could be perfected); Benyo v. Hem, 833 S.W.2d 714, 716 (Tex. App. Houston [1st Dist.], no writ) (bona fide attempt must itself be timely).

Nothing in the transcript indicates that Brager filed a motion for a new trial or a request for findings of fact and conclusions of law. Neither did he request an extension of time to perfect his appeal from this court. Thus, he was required to perfect his appeal within thirty days of the order. He did not file his notice of appeal until December 19, some ninety-one days after the order was entered.

The clerk of this court notified Brager that the transcript did not demonstrate that his appeal had been duly perfected. See Tex. R. App. P. 56(a), 60(a)(2). He responded by filing an affidavit of inability to pay costs in this court. This filing is not effective to cure the timeliness problem present in his appeal. Thus, even though given the opportunity to cure the defect, he has failed to demonstrate that he timely perfected this appeal. See id. 41(a)(1), 83.

Therefore, we dismiss this cause for want of jurisdiction.

PER CURIAM

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed January 18, 1995

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