NUMBER 13-13-00045-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
___________________________________________________________
IN THE INTEREST OF T.A.H., A CHILD
____________________________________________________________
On appeal from the 418th District Court
of Montgomery County, Texas.
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MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion Per Curiam
Appellant, Heather Marie Helton, attempted to perfect an appeal from a judgment
entered by the 418th District Court of Montgomery County, Texas, in cause number
11-09-10223-CV. We dismiss the appeal for want of jurisdiction.
I. BACKGROUND
Judgment in this cause was signed on July 9, 2012. Appellant timely filed a
request for findings of fact and conclusions of law. On September 28, 2012, the trial
court issued an order extending post-judgment deadlines. The order states that
appellant did not receive notice of the judgment until on or about August 7, 2012, and that
it is ordered that “the date of judgment in this case is extended to September 28, 2012,
and that all post-judgment deadlines shall be calculated using that as the date of
judgment.”
Appellant filed a notice of appeal on January 2, 2013. On February 26, 2013, the
Clerk of this Court notified appellant that it appeared that the appeal was not timely
perfected. Appellant was advised that the appeal would be dismissed if the defect was
not corrected within ten days from the date of receipt of the Court’s directive. Appellant
has not filed a response.
II. ANALYSIS
Texas Rule of Appellate Procedure 26.1 provides that an appeal is perfected when
notice of appeal is filed within thirty days after the judgment is signed, unless a request for
findings of fact and conclusions of law is timely filed. TEX. R. APP. P. 26.1(a)(4). Where
a request for findings of fact and conclusions of law has been filed, notice of appeal shall
be filed within ninety days after the judgment is signed. Id.
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, 619 (1997) (construing the
predecessor to Rule 26). However, appellant must provide a reasonable explanation for
the late filing: it is not enough to simply file a notice of appeal. Id.; Woodard v. Higgins,
140 S.W.3d 462, 462 (Tex. App.—Amarillo 2004, no pet.); In re B.G., 104 S.W.3d 565,
567 (Tex. App.—Waco 2002, no pet.).
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When a party adversely affected by the judgment does not receive notice within
twenty days of judgment, the period for filing the appeal begins to run from the date the
party received notice, provided no more than ninety days have elapsed since the signing
of the judgment or other appealable order. See TEX. R. CIV. P. 306a(4); TEX. R. APP. P.
4.2(a)(1).
In the instant case, the trial court entered a final appealable order on July 9, 2012.
Appellant timely filed a request for findings of fact and conclusions of law making her
notice of appeal due 90 days after the judgment was signed. See Tex. R. App. P. 26.1.
Because appellant did not receive notice of the judgment within twenty days and the trial
court determined that the appellant received notice of the judgment on or about August 7,
2012, appellant’s notice of appeal was due 90 days thereafter, on November 5, 2012.
Appellant did not file her notice of appeal until January 2, 2013.
Although the trial court’s order extending post-judgment deadlines attempts to
change the date of judgment to September 28, 2012, it cannot alter the appellate
deadlines. It is “well settled” that “appellate jurisdiction cannot be created by consent,
stipulation of the parties, or waiver, either by the court or by the litigants.” Welder v. Fritz,
750 S.W.2d 930, 932 (Tex. App.—Corpus Christi 1988, no writ); see Stine v. State, 908
S.W.2d 429 (Tex. 1995) (“It is . . . fundamental that the parties of a suit can neither confer
nor waive jurisdiction by agreement or consent.”); Claxton v. (Upper) Lake Fork Water
Control & Improvement Dist. No. 1, 220 S.W.3d 537, 541–42 (Tex. App.—Texarkana
2007, pet. denied) (“Even if both parties agreed that a different date [for the final
judgment] actually existed, we are constrained by the rules to determine our jurisdiction
by reference to the date on which the judgment was signed.”).
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III. CONCLUSION
The Court, having examined and fully considered the documents on file,
appellant’s failure to timely perfect her appeal, and appellant’s failure to respond to this
Court’s notice, is of the opinion that the appeal should be dismissed for want of
jurisdiction. Accordingly, the appeal is hereby DISMISSED FOR WANT OF
JURISDICTION. See TEX. R. APP. P. 42.3(a)(c).
PER CURIAM
Delivered and filed the
2nd day of May, 2013.
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