Fred Dade v. Howard Greer and Bernadine Banks--Appeal from 1st District Court of San Augustine County

NO. 12-08-00014-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

FRED DADE, APPEAL FROM THE FIRST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

HOWARD GREER AND

BERNADINE BANKS, SAN AUGUSTINE COUNTY, TEXAS

APPELLEES

MEMORANDUM OPINION

PER CURIAM

This appeal is being dismissed for want of jurisdiction pursuant to Texas Rule of Appellate Procedure 42.3(a). The trial court s judgment was signed on September 20, 2007. Under rule of appellate procedure 26.1(a), unless Appellant timely filed a motion for new trial or other postjudgment motion that extended the appellate deadlines, his notice of appeal was due to have been filed within 30 days after the judgment [was] signed, i.e., October 22, 2007.

Appellant filed a motion for new trial on October 12, 2007. Appellant s motion for new trial was due to have been filed on or before October 22, 2007. See Tex. R. Civ. P. 329b(a). Therefore, the motion was timely. Because Appellant s motion for new trial was timely, his time for perfecting the appeal was extended to December 19, 2007. SeeTex. R. App. P. 26.1(a) (notice of appeal to be filed within ninety days after judgment signed if timely motion for new trial is filed). However, Appellant filed his notice of appeal on December 27, 2007. Because the notice of appeal was not filed on or before December 19, 2007, the notice was untimely filed and this court has no jurisdiction to consider the appeal.

On January 10, 2008, this court notified Appellant pursuant to Texas Rule of Appellate Procedure 42.3(a) that his notice of appeal was untimely. Appellant was further informed that unless the record was amended on or before January 21, 2008 to establish the jurisdiction of this court, the appeal would be dismissed. In response to our January 10, 2008 notice, Appellant filed a motion for extension of time to file his notice of appeal. A motion to extend the time for filing a notice of appeal must be filed within fifteen days after the deadline for filing the notice of appeal. Tex. R. App. P. 26.3. Thus, Appellant s motion to extend the time for filing his notice of appeal was due to have been filed on or before January 3, 2008. Because Appellant did not file his motion until January 23, 2008, the motion is untimely.

Appellant s motion for extension of time to file his notice of appeal is overruled. Because this court is not authorized to extend the time for perfecting an appeal except as provided by Texas Rules of Appellate Procedure 26.1 and 26.3, the appeal is dismissed for want of jurisdiction. See Tex. R. App. P. 42.3(a).

Opinion delivered January 23, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)