James Lee Sweed v. Jay L. Nye, Jaime Esparza, District Attorney of El Paso County, Texas, El Paso County District Attorneys Office, the State of Texas, and the Attorney General Office of the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

§
JAMES LEE SWEED,
§
Appellant, No. 08-07-00132-CV
§
v. Appeal from
§
JAY L. NYE, JAIME ESPARZA, 120th District Court
DISTRICT ATTORNEY OF EL PASO §
COUNTY, TEXAS, EL PASO COUNTY of El Paso County, Texas
DISTRICT ATTORNEYS OFFICE, §
THE STATE OF TEXAS, and (TC # 2005-5667)
THE ATTORNEY GENERAL OFFICE §
OF THE STATE OF TEXAS,
§
Appellees.

MEMORANDUM OPINION

James Lee Sweed, appearing pro se, filed suit in district court but the case was dismissed for

want of prosecution. Although Sweed has appealed, we must dismiss the appeal for want of

jurisdiction.

FACTUAL SUMMARY

On August 12, 2005, Sweed filed suit against Jay L. Nye, District Attorney Jaime Esparza,

the Office of the District Attorney, the State of Texas, and the Texas Attorney General. In his

petition, Sweed listed his address as 5121 Danny Drive, El Paso, Texas 79924. On August 31, 2006,

he filed a letter with the District Clerk advising a change of address to El Paso County Jail Annex,

12501 Montana, El Paso, Texas 79938. On October 24, 2006, Sweed filed a motion for summary

judgment listing as his address the El Paso County Jail, P.O. Box 125, El Paso, Texas 79901. The
district court set a status conference for October 30, and sent notice to Sweed at the Danny Drive

address. The notice was returned as not deliverable. On October 31, the court set the State

defendants’ motion to dismiss for want of prosecution for hearing on November 6. Again notice was

sent to the Danny Drive address and returned as unclaimed. On November 6, the district court

dismissed the suit for want of prosecution. Two days later, the District Clerk sent Sweed notice of

the dismissal at12501 Montana, County Jail Annex, El Paso, Texas 79938. Sweed filed notice of

appeal on April 24, 2007. In response to a letter from this court, Sweed filed notice of restricted

appeal on May 21, 2007.

NOTICE OF APPEAL

In civil cases, a party must file the notice of appeal within thirty days after the judgment is

signed. TEX .R.APP .P. 26.1. The time limit is extended to ninety days if any party timely files: (1)

a motion for new trial; (2) a motion to modify the judgment; (3) a motion to reinstate under Texas

Rule of Civil Procedure 165a; or (4) a request for findings of fact and conclusions of law if findings

and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly

be considered by the appellate court. TEX .R.CIV .P. 26.1(a)(1)-(4). The appellate court may extend

the time to file the notice of appeal, if, within fifteen days after the deadline the party files the

notice of appeal in the trial court, and files a motion to extend time in the appellate court.

TEX .R.APP .P. 26.3.

In a restricted appeal, the notice of appeal must be filed within six months after the judgment

or order is signed. TEX .R.APP .P. 26.1(c). The restricted appeal must state that the appellant is a

party affected by the trial court’s judgment but did not participate--either in person or through

counsel--in the hearing that resulted in the judgment at issue. Tex.R.App.P. 25.1(d)(7)(A). The

appeal must state that the appellant did not timely file either a postjudgment motion, request for
findings of fact and conclusions of law, or notice of appeal, and the appeal must be verified by the

appellant if the appellant does not have counsel. TEX .R.APP .P. 25.1(d)(7)(B)-(C).

Here, the case was dismissed for want of prosecution on November 6, 2006. Official notice

was forwarded to Sweed on November 8. The notice was sent to the most recent address Sweed had

provided. Sweed didn’t file his notice of appeal until April 24, 2007. He did not file timely, nor did

he file a motion to extend time, a motion for new trial, a motion to modify the judgment, a motion to

reinstate, or a request for findings of fact and conclusions of law. See TEX .R.CIV .P. 26.1(a)(1)-(4).

Sweed also missed the deadline for perfecting a restricted appeal. That notice of appeal must have

been filed by May 6, 2007, but it was not filed until May 21, 2007.

We dismiss the appeal for want of jurisdiction.

April 9, 2009
ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.
Carr, J., not participating