Michael Reynolds v. James M. Shaw, et al--Appeal from 361st District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-99-056-CV

MICHAEL REYNOLDS,

Appellant

v.

JAMES M. SHAW, ET AL.,

Appellees

From the 361st District Court

Brazos County, Texas

Trial Court # 42,747-361

MEMORANDUM OPINION

Michael Reynolds sued James Shaw, Brazos Dozer Service, and Conagg Transportation (the appellees) for injuries sustained in a car accident. A take-nothing judgment was signed on October 26, 1998, and Reynolds filed a motion for new trial on November 30, 1998. // A request for the record was filed on January 22, 1999. // The clerk s record contains a form which indicates that notice of appeal was made on January 22, however the record does not contain a notice of appeal. Because no notice of appeal is in the clerk s record, we requested that a supplemental record be filed containing a proper notice of appeal. A supplemental notice of appeal was filed March 3. We again requested that Reynolds provide a supplemental clerk s record containing a timely-filed notice of appeal. He has not responded to our request.

A timely notice of appeal is necessary to invoke a court of appeal's jurisdiction. Davies v. Massey, 561 S.W.2d 799, 800-01 (Tex. 1978). To be timely, a notice of appeal must be filed within thirty days after the judgment is signed, or within ninety days if a timely motion for new trial is filed. See Tex. R. App. P. 26.1. Assuming that the motion for new trial was timely filed, Reynolds notice of appeal was due within ninety days of October 26, 1998.

Provision is made in the appellate rules for the untimely filing of a notice of appeal. Rule 26.3 allows the appellate court to extend the time for an appellant to file a notice of appeal if, within fifteen days after the deadline for filing the notice of appeal, the party files the notice of appeal and a motion requesting an extension of time to file the notice. Tex. R. App. P. 26.3.

By operation of Rule 26.1, Reynolds notice of appeal was due on or about January 24, 1999. // There is nothing in the record to show that Reynolds filed a timely notice of appeal. Without a timely-filed notice of appeal, or a timely-filed motion to extend the time to file a notice of appeal, we have no jurisdiction over this appeal. Davies, 561 S.W.2d at 800-01. Accordingly, this appeal is dismissed for want of jurisdiction.

PER CURIAM

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Dismissed

Opinion delivered and filed August 11, 1999

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