NO. 12-07-00232-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
§ APPEAL FROM THE
IN THE ESTATE OF
MARGERY WANDA TAYLOR, § COUNTY COURT AT LAW NO. 2 OF
DECEASED
§ GREGG COUNTY, TEXAS
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 January 30, 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, her notice of appeal was due to have been filed “within 30 days after the judgment [was] signed,” i.e., March 1, 2007.
Appellant’s motion for new trial was due to have been filed on or before March 1, 2007. See Tex. R. Civ. P. 329b(a). On March 2, 2007, the trial court clerk received Appellant’s motion for new trial, which was delivered by Federal Express. If a document is sent to the proper clerk by first class United States mail in a properly addressed, stamped envelope and is deposited in the mail on or before the last day for filing, the document is deemed timely filed if it is received by the clerk “not more than ten days tardily.” Tex. R. Civ. P. 5. However, this rule does not apply when the motion for new trial is delivered by Federal Express rather than the United States Postal Service. See Ackal v. Blockbuster, Inc., No. 08-02-00268-CV, 2002 WL 31151434, at *1 (Tex. App.–El Paso 2002, pet. denied) (not designated for publication); Carpenter v. Town & Country Bank, 806 S.W.2d 959, 960 (Tex. App.–Eastland 1991, writ denied). Because Appellant’s motion for new trial was not received by the trial court clerk on or before March 1, 2007, the motion was untimely. Consequently, the motion for new trial did not extend the time for perfecting the appeal. Tex. R. App. P. 26.1(a). Appellant filed her notice of appeal on April 27, 2007, but had not previously filed a motion for extension of time as permitted by Texas Rule of Appellate Procedure 26.3. Because the notice of appeal was not filed on or before March 1, 2007, the notice was untimely filed and this court has no jurisdiction to consider the appeal.
On June 26, 2007, this court notified Appellant pursuant to Texas Rule of Appellate Procedure 42.3(a) that her notice of appeal was untimely. Appellant was further informed that unless the record was amended on or before July 6, 2007 to establish the jurisdiction of this court, the appeal would be dismissed. In response to our June 26, 2007 notice, Appellant filed a motion for extension of time to file her motion for new trial. However, we have no authority to grant an extension of time for filing a motion for new trial. See Tex. R. App. P. 2 (permitting appellate court to suspend operation of appellate rules subject to certain limitations, but making no provision for suspending rules pertaining to filings in trial court); Tex. R. App. P. 10 (containing no provision for appellate court to alter deadlines for filing motion for new trial). Nor does the trial court have any such authority. See Tex. R. Civ. P. 5 (trial court may not enlarge period for taking any action under the rules relating to new trial except as stated in rules); Tex. R. Civ. P. 329b(a) (motion for new trial shall be filed prior to or within thirty days after judgment or other order complained of is signed). Appellant has also filed a motion to extend time to file her notice of appeal along with an amended 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 her notice of appeal was due to have been filed on or before March 16, 2007. Because Appellant did not file her motion until July 5, 2007, the motion is untimely.
Appellant’s motions for extension of time to file her motion for new trial and her notice of appeal are 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). All other pending motions are overruled as moot.
Opinion delivered July 18, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)