COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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JOSE CARDONA, No. 08-13-00207-CV
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Appellant, Appeal from
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v. 243rd District Court
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T & T STAFF MANAGEMENT, INC. of El Paso County, Texas
AND MARTINEZ BROTHERS §
CONTRACTORS, L.L.C., (TC # 2010-3328)
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Appellees.
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MEMORANDUM OPINION
Jose Cardona appeals from an order dismissing his suit for want of prosecution.
Appellees have filed a motion to dismiss for want of jurisdiction. We grant the motion and
dismiss the appeal for want of jurisdiction.
The trial court signed the dismissal order on April 16, 2013. Appellant timely filed a
motion to reinstate on May 7, 2013 and that motion was overruled by operation of law. See
TEX.R.CIV.P. 165a, 329b(c). Thus, Appellant’s notice of appeal was due to be filed on or before
July 15, 2013. See TEX.R.APP.P. 26.1(a)(3)(providing that notice of appeal must be filed within
90 days after the judgment is signed if any party timely files a motion to reinstate under Rule
165a). Appellant did not file his notice of appeal until August 5, 2013. The Clerk sent a notice
to Appellant informing him of the Court’s intent to dismiss the appeal because the notice of
appeal had not been timely filed. See TEX.R.APP.P. 42.3. Appellant filed a written response
asserting that his notice of appeal was timely filed because this is a restricted appeal.
In a restricted appeal, the notice of appeal is due to be filed within six months after the
judgment or order is signed. TEX.R.APP.P. 26.1(c). Rule 30 of the Texas Rules of Appellate
Procedure permits a restricted appeal only when the appellant “did not participate--either in
person or through counsel--in the hearing that resulted in the judgment complained of” and “did
not timely file a postjudgment motion.” TEX.R.APP.P. 30. A motion to reinstate is a
postjudgment motion and it is timely if filed within thirty days after the order of dismissal is
signed or within the period provided by Rule 306a. See TEX.R.CIV.P. 165a(3). Because
Appellant timely filed a motion to reinstate, he is not permitted to bring a restricted appeal under
Rule 30, and his notice of appeal was due to be filed on July 15, 2013, ninety days after the trial
court signed the dismissal order. See TEX.R.APP.P. 26.1(a)(3), 30; Thomas v. Texas Department
of Criminal Justice-Institutional Division, 3 S.W.3d 665, 666-67 (Tex.App.--Fort Worth 1999,
no pet.)(plaintiff who timely filed postjudgment motion to reinstate after his case was dismissed
for want of prosecution was required to file notice of appeal within 90 days after trial court
signed dismissal). Appellant filed his notice of appeal on August 5, 2013, more than fifteen days
after the due date. Accordingly, we dismiss the appeal for lack of jurisdiction. See Thomas, 3
S.W.3d at 666-67.
October 2, 2013
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
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