NUMBER 13-13-00131-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
___________________________________________________________
ANTHONY R. FREEMAN, Appellant,
TDCJ# 297125
v.
LOUIS GARCIA, Appellee.
____________________________________________________________
On appeal from the 156th District Court
of Bee County, Texas.
____________________________________________________________
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Perkes
Memorandum Opinion Per Curiam
Appellant, Anthony R. Freeman, TDCJ# 297125, is an inmate at the Texas
Department of Criminal Justice, Institutional Division and seeks to appeal from a district
court order dismissing as frivolous his lawsuit for failure to comply with chapter 14 of the
civil practice and remedies code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014
(West 2002) (establishing procedural requirements for inmate litigation). Because we
conclude that appellant’s notice of appeal was untimely, we dismiss the appeal for lack of
jurisdiction.
The order dismissing appellant’s case was signed on June 5, 2012. On June 26,
2012, appellant filed a motion to alter or amend judgment which states that he received
the final judgment on June 11, 2012. Appellant filed his notice of appeal on March 5,
2013.
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 motion for
new trial is timely filed. TEX. R. APP. P. 26.1(a)(1). Where a timely motion for new trial
has been filed, notice of appeal shall be filed within ninety days after the judgment is
signed. TEX. R. APP. P. 26.1(a).
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.).
Pursuant to Texas Rule of Appellate Procedure 26.1, appellant’s notice of appeal
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was due on September 4, 20121, but was not filed until March 5, 2013. On March 7,
2013, the Clerk of this Court notified appellant of this defect so that steps could be taken
to correct the defect, if it could be done. Appellant was advised that, if the defect was not
corrected within ten days from the date of receipt of this Court’s letter, the appeal would
be dismissed. No response has been received from appellant addressing the untimely
notice of appeal. Regardless, appellant’s notice of appeal was filed beyond the
fifteen-day grace period provided by rule 26.3.
The Court, having examined and fully considered the documents on file,
appellant’s failure to timely perfect his 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.
1
The 30 day deadline for perfecting an appeal would actually be Monday, September 3, 2012, however that
day was a federal holiday, Labor Day, making the notice of appeal due Tuesday, September 4, 2012. See
TEX. R. APP. P. 4.1(a).
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