Ex Parte Todd W. Altschul--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-96-272-CV

EX PARTE TODD W. ALTSCHUL

From the 54th District Court

McLennan County, Texas

Trial Court # 96-2212-2

MEMORANDUM OPINION

Todd Altschul, an inmate, attempts to appeal from the court's dismissal of his in forma pauperis petition for an expungement of several criminal records. Tex. Civ. Prac. & Rem. Code Ann. 14.001-.009 (Vernon Supp. 1997). Because Altschul failed to perfect his appeal, we will dismiss for want of jurisdiction.

The court signed an order dismissing Altschul's suit on October 15, 1996. Altschul filed a notice of appeal on October 29. The transcript was filed in this court on December 9. Upon examining the transcript, we determined that Altschul had not duly perfected his appeal. In a letter dated December 9, 1996, we notified him of this defect and gave him 15 days in which to amend the record. Tex. R. App. P. 40(a)(1), 56(a).

Perfection of an appeal is required to invoke our jurisdiction. Welch v. McDougal, 876 S.W.2d 218, 220-22 (Tex. App. Amarillo 1994, writ denied); El Paso Sharky's v. Amparan, 831 S.W.2d 3, 5 (Tex. App. El Paso 1992, writ denied). Because Altschul is not exempt from paying the costs on appeal, he is required to file either a cost bond, a cash deposit, or an affidavit of inability to pay costs to perfect this appeal. Tex. Civ. Prac. & Rem. Code Ann. 6.01-6.03 (Vernon 1986 & Supp. 1997); Tex. R. App. P. 40(a)(1), (a)(3); White v. Schiwetz, 793 S.W.2d 278, 279 (Tex. App. Corpus Christi 1990, no writ). His notice of appeal is insufficient to perfect the appeal. Id.

However, because his notice of appeal is a bona fide effort to invoke our jurisdiction, we have jurisdiction to allow him the opportunity to properly perfect his appeal. Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). On December 28, Altschul mailed to the district clerk an "Affidavit of Inability to Pay Cost[s]." The letter was in response to our letter of December 9 notifying Altschul that he had not properly perfected his appeal.

Altschul's letter, however, was untimely. In our December 9 letter, we allowed him fifteen days to amend the record. He did not mail his "Affidavit of Inability to Pay Cost[s]" to the district clerk until December 28, nineteen days after our letter was sent. // See Tex. R. Civ. P. 5.

Rule of Appellate Procedure 41(a)(2) permits a court of appeals to grant an extension of fifteen days for the late filing of a perfection instrument. Tex. R. App. P. 41(a)(2). Altschul, however, has not requested an extension; therefore, he has failed to timely perfect his appeal. See Ludwig v. Enserch Corp., 845 S.W.2d 338, 339-40 (Tex. App. Houston [1st Dist.] 1992, no writ).

We notified Altschul that the transcript did not demonstrate that his appeal had been duly perfected. Tex. R. App. P. 56(a), 60(a)(2). Even though given the opportunity to cure the defect, he has failed to properly perfect this appeal. Id. 40(a)(1), 83. Thus, the transcript does not show that this court has jurisdiction and "after notice it [has] not [been] amended." Id. 56(a).

Therefore, we dismiss this cause for want of jurisdiction. Id.

PER CURIAM

Before Chief Justice Davis

Justice Cummings and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed January 15, 1997

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