Dismissed and Memorandum Opinion filed May 17, 2011.
In The
Fourteenth Court of Appeals
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NO. 14-10-01008-CV
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IN THE INTEREST OF B.W.E. AND A.E.E., Children
On Appeal from County Court at Law No. 2
Galveston County, Texas
Trial Court Cause No. 09FD1000
M E M O R A N D U M O P I N I O N
This is an attempted appeal from an order signed March 22, 2010, by the associate judge. The record does not reflect appellant requested a de novo review of the associate judge’s order within the required seven-day period. See Tex. Fam. Code § 201.1042(b). Therefore, by operation of law, that order became the order of the referring court not later than Monday, March 29, 2010. See Tex. Fam. Code § 201.1041(a) (“the proposed order or judgment of the associate judge . . . shall become the order or judgment of the referring court by operation of law without ratification by the referring court”). Although appellant filed a notice of appeal on June 1, 2010, in that notice he sought a trial de novo in the referring court. Nothing in that notice of appeal sought review of a final order by this Court. Therefore, it was not effective to invoke our jurisdiction over this appeal. See In re D.J.L., No. 05-10-00203-CV, 2010 WL 3636327, at *1 (Tex. App. – Dallas 2010, no pet.) (mem. op.); Tex. R. App. P. 25.1.
Appellant filed a timely motion for new trial on April 5, 2010. When appellant has filed a timely motion for new trial, the notice of appeal must be filed within ninety days after the date the judgment is signed. See Tex. R. App. P. 26.1(a). The notice of appeal was therefore due by June 28, 2010, at the latest. See Tex. R. App. P. 26.1(a). Appellant’s notice of appeal seeking review by this court was not filed until October 1, 2010.
Appellant=s notice of appeal was not filed timely. A motion for extension of time is necessarily implied when an appellant, acting in good faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the fifteen-day grace period provided by Rule 26.3 for filing a motion for extension of time. See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (1997) (construing the predecessor to Rule 26). Appellant=s notice of appeal was not filed within the fifteen-day period provided by rule 26.3.
Notification was transmitted to all parties of the court=s intention to dismiss the appeal for want of jurisdiction and appellant responded. See Tex. R. App. P. 42.3(a). Appellant=s response refers to section 201.013(b) of the Texas Family Code, providing “the proposed order or judgment of the associate judge becomes the order or judgment of the referring court only on the referring court’s signing the proposed order or judgment.” This provision is in subchapter A of chapter 201. Subchapter B specifically pertains to associate judges in Title IV-D cases, such as this case. Section 201.1041, as discussed above, provides the associate judge’s order becomes the order of the referring court by operation of law upon expiration of the seven-day period to file a request for de novo review. See Tex. Fam. Code. § 201.1041(a) and (b). Subchapter B will prevail over Subchapter A to the extent of any conflict. See Tex. Fam. Code § 201.102. Thus the appellate timetable runs from March 29, 2010, and the notice of appeal was untimely filed.
We find appellant=s response fails to demonstrate that this Court has jurisdiction to entertain the appeal and order the appeal dismissed.
PER CURIAM
Panel consists of Justices Anderson, Brown, and Christopher.