James Thomas Green v. Texas Department of Criminal Justice, J. Doe(s), Evelyn Castro, Maria Ramirez, Elida DeLaRosa, Eric Fletcher

Fourth Court of Appeals
San Antonio, Texas
August 2, 2021

No. 04-21-00239-CV

James Thomas GREEN,
Appellant

v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, J. Doe(s), Evelyn Castro, Maria
Ramirez, Elida DeLaRosa, Eric Fletcher,
Appellee

From the 81st Judicial District Court, La Salle County, Texas
Trial Court No. 2020-08-00149-CVL
Honorable Lynn Ellison, Judge Presiding

ORDER

Appellant seeks to appeal an April 4, 2021 order that grants appellees’ motions to dismiss
certain of appellant’s claims on sovereign immunity grounds. On July 21, 2021, appellees filed a
motion to dismiss the appeal, arguing, inter alia, that appellant did not timely file his notice of
appeal.

The trial court’s order specifically dismisses “[a]ll tort allegations” asserted by appellant
and does not appear to dispose of claims appellant asserted under the United States and Texas
constitutions pursuant to 42 U.S.C. § 1983. Because the April 4, 2021 order does not dispose of
all claims in dispute between the parties, it appears to be an interlocutory, or non-final, order. See
In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 831 (Tex. 2005)
(orig. proceeding). Because an appeal of an interlocutory order is an accelerated appeal,
appellant’s notice of appeal was due by April 26, 2021, twenty days after the trial court signed
the order. See TEX. R. APP. P. 26.1(b); TEX. R. APP. P. 28.1(a). A motion for extension of time to
file the notice of appeal was due by May 11, 2021. See TEX. R. APP. P. 26.3.

The record does not indicate precisely when appellant, who is an inmate acting pro se,
delivered his notice of appeal to prison authorities. See Warner v. Glass, 135 S.W.3d 681, 684
(Tex. 2004) (pro se inmate’s filing “is deemed filed at the time the prison authorities duly receive
the document to be mailed”). However, the record indicates appellant signed his notice of appeal
on May 28, 2021, after his deadline to file a motion for extension of time had expired. “[O]nce
the period for granting a motion for extension of time under Rule [26.3] has passed, a party can
no longer invoke the appellate court’s jurisdiction.” See Verburgt v. Dorner, 959 S.W.2d 615,
617 (Tex. 1997) (construing the predecessor to Rule 26). Because the notice of appeal appears to
have been untimely filed, we ORDER appellant to show cause why this appeal should not be
dismissed for lack of jurisdiction by August 12, 2021. See id. If appellant fails to satisfactorily
respond to this order by the date ordered, this appeal will be dismissed for want of jurisdiction.
See TEX. R. APP. P. 42.3. All other appellate deadlines are suspended until further order of this
court.

_________________________________
Beth Watkins, Justice

IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 2nd day of August, 2021.

___________________________________
MICHAEL A. CRUZ, Clerk of Court