Hector Escalante v. Texas Department of Human Services--Appeal from 41st District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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HECTOR ESCALANTE, ) No. 08-06-00030-CV

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Appellant, ) Appeal from

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v. ) 41st District Court

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TEXAS DEPARTMENT OF HUMAN, ) of El Paso County, Texas

SERVICES, )

) (TC# 2002-2381)

Appellee. )

MEMORANDUM OPINION

Pending before the Court is Appellant s motion to extend the time for filing notice of appeal. We deny the motion as untimely filed and dismiss the appeal for want of jurisdiction.

A civil appeal is perfected when the notice of appeal is filed. Tex.R.App.P. 26.1; see Restrepo v. First Nat. Bank of Dona Ana County, N.M., 892 S.W.2d 237, 238 (Tex.App.--El Paso 1995, no writ)(applying former Tex.R.App.P. 40(a)(1)). When a motion for new trial is filed, the notice of appeal must be filed within ninety days after the judgment is signed. Tex.R.App.P. 26.1(a)(1); Restrepo, 892 S.W.2d at 238. A notice of appeal is considered timely if filed within fifteen days of the due date and accompanied by a reasonable explanation for the failure to file on the due date. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). The motion for extension of time must be filed within fifteen days after the deadline for filing the notice of appeal. Tex.R.App.P. 26.3.

The trial court signed the judgment on October 24, 2005 and Appellant filed a timely motion for new trial. The notice of appeal was therefore due to be filed no later than January 22, 2006. Appellant did not file his notice of appeal and motion for extension of time until February 7, 2006, which is sixteen days after the notice of appeal s due date. Accordingly, we do not have jurisdiction of the appeal. We deny the motion as untimely filed and dismiss the appeal for want of jurisdiction.

March 30, 2006

ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.