Ex Parte Kimberly Allen--Appeal from 40th District Court of Ellis County

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No. 10-96-263-CV





From the 40th District Court

Ellis County, Texas

Trial Court # 54539




Kimberly Allen attempts to appeal a judgment denying her petition for an expunction of the records relating to her July 27, 1988, arrest on a driving while intoxication charge that was eventually dismissed on June 3, 1996. See Tex. Crim. Proc. Code Ann. 55.01 (Vernon Supp. 1997). Because Allen did not attempt to perfect her appeal within the proper time period and no motion for an extension of time to perfect her appeal was filed, we conclude that we do not have jurisdiction over her appeal and dismiss this cause.

The order denying Allen's petition was signed on August 9, 1996. Allen had filed a "Motion for Rehearing" // on August 5, 1996. This motion became effective upon the signing of the judgment. Tex. R. Civ. P. 306c. Thus, Allen had ninety days after August 9, i.e. until November 7, 1996, to perfect her appeal from this judgment. Tex. R. App. P. 41(a)(1). // Allen mailed her cash deposit in lieu of bond on November 8, one day too late. See id. 4(f). Although the cash deposit was filed within the fifteen day window for obtaining an extension of time to perfect the appeal, no motion was presented to this court requesting such an extension. Id. 41(a)(2); Ludwig v. Enserch Corp., 845 S.W.2d 338, 339-40 (Tex. App. Houston [1st Dist.] 1992, no writ). Thus, she has failed to timely perfect her appeal. The time period for perfecting an appeal is jurisdictional. Davies v. Massey, 561 S.W.2d 799, 800 (Tex. 1978); El Paso Sharky's v. Amparan, 831 S.W.2d 3, 5 (Tex. App. El Paso 1992, writ denied). Because Allen failed to perfect her appeal within the jurisdictional time period and failed to timely request an extension of time for perfection, we lack jurisdiction to entertain this appeal. Id.; McDonald v. Newmyer, 775 S.W.2d 652, 653 (Tex. App. Houston [1st Dist.] 1989, writ denied).

On November 22, we advised Allen by letter that this appeal was not duly perfected. Tex. R. App. P. 60(a)(2), 83. Allen responded to our notice on December 6 by filing a motion to correct the record. In the motion Allen argued incorrectly that, because her "Motion for Rehearing" was overruled by operation of law on October 23, see Tex. R. App. P. 329b(c), she had until thirty days thereafter, i.e., until November 22, to perfect her appeal. As we indicated above, the deadline for Allen to perfect her appeal was November 7, 1996. See Tex. R. App. P. 41(a)(1).

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 December 31, 1996

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