Michael Kennedy v. James A. Collins--Appeal from 52nd District Court of Coryell County

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No. 10-96-154-CV









From the 52nd District Court

Coryell County, Texas

Trial Court # 26,377




Michael Kennedy attempts to appeal from an order dismissing his in forma pauperis lawsuit against James A. Collins, Director of the Texas Department of Criminal Justice-Institutional Division. Tex. Civ. Prac. & Rem. Code Ann. 13.001 (Vernon Supp. 1996). Although the court signed the order on November 9, 1992, Kennedy did not attempt to appeal until May 23, 1996, when he filed a notice of appeal. Because his action was untimely, we dismiss this attempted appeal for want of jurisdiction. Tex. R. App. P. 41(a)(1), 56(a), 60(a)(2).

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 within thirty days of the judgment. Id. 40(a)(1), (3); White v. Schiwetz, 793 S.W.2d 278, 279 (Tex. App. Corpus Christi 1990, no writ). 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, Tex. R. App. P. 41(a)(1); (2) requesting an extension of time from this court, id. 41(a)(2); or (3) timely filing an instrument that is a "bona fide attempt" to invoke the jurisdiction of the appellate court, 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. 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.] 1992, no writ) (bona fide attempt must itself be timely).

Kennedy attempted to perfect this appeal three years, six months and fourteen days after the judgment was signed, more than three years and five months too late. On July 15, our clerk notified him that the transcript did not demonstrate that his appeal had been duly perfected. Tex. R. App. P. 56(a), 60(a)(2), 83. He has not responded. Thus, even though given the opportunity to attempt to cure the defect, he has failed to demonstrate that he timely perfected this appeal or that he has an excuse for not perfecting the appeal within thirty days of the judgment. Id. 41(a)(1), 83.

Therefore, we dismiss this cause for want of jurisdiction.



Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed August 14, 1996

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