in the Interest of M.J.Y, E.T.Y., B.C.Y., V.C.Y., E.G.Y., R.F.Y., S.R.Y., D.A.Y., A.A.Y., X.I.Y., Children

Dismiss and Opinion Filed March 3, 2022




                                        In the
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                No. 05-21-01143-CV

 IN THE INTEREST OF M.J.Y, E.T.Y., B.C.Y., V.C.Y., E.G.Y., R.F.Y., S.R.Y.,
                D.A.Y., A.A.Y., X.I.Y., CHILDREN

                On Appeal from the 296th Judicial District Court
                             Collin County, Texas
                    Trial Court Cause No. 296-52069-2020

                         MEMORANDUM OPINION
                     Before Justices Carlyle, Smith, and Garcia
                            Opinion by Justice Carlyle
      We questioned our jurisdiction over this appeal from the trial court’s final

decree of divorce as it appeared to have been untimely filed. See Brashear v. Victoria

Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex. App.—Dallas 2009, no

pet.) (op. on reh’g) (timely filing of notice of appeal is jurisdictional). As reflected

in the clerk’s record, the decree was signed May 4, 2021. Because appellant timely

requested findings of fact and conclusions of law, the deadline for appealing was

August 2, 2021 or, with an extension motion, August 17, 2021. See TEX. R. APP.

P. 26.1(a), 26.3. The appeal was not filed, however, until December 12, 2021.
        In jurisdictional briefing filed at our request, and in supplemental briefing,

appellant, who is proceeding pro se and is detained in county jail, asserts he

submitted numerous notices of appeal for mailing between February, when the final

trial was held, and December, and he specifically recalls submitting for mailing a

notice of appeal after May 4 and before August 2.1 He argues that “a person detained

in county jail” has “no way of knowing if something submitted to be mailed was

received and filed,” and he lists several reasons why an incarcerated person “may

not be able to effect successful correspondence with the court.” Appellant urges that

we not let the appeal be “forfeited” and that we “accept” jurisdiction under the

prisoner mailbox rule which deems the filing date of an inmate’s document as the

date the prison authorities received the document for mailing rather than when the

clerk received the document. See Enriquez v. Livingston, 400 S.W.3d 610, 621 (Tex.

App.—Austin 2013, pet. denied) (op. on reh’g).

        We are cognizant that pro se inmates must rely on prison authorities for filing

and are sympathetic to appellant not having direct access to the clerk’s office or a

United States mailbox. But nothing in the record, other than appellant’s statements


    1
      Appellant argues the record is replete with examples of his intent to appeal. In support, he relies on
his timely request for findings of fact and conclusions of law and cites to documents in the record where he
objected and sought to “preserve error for appeal.” He also notes that in January 2021 he filed a separate
appeal from the trial court’s order denying his motion for counsel. See In re M.J.Y., 05-21-00017-CV, 2021
WL 1422653 (Tex. App.—Dallas Apr. 15, 2021, no pet.). That appeal was subsequently dismissed for want
of jurisdiction because the order was not a final judgment or appealable interlocutory order. See id. at *1.
Appellant argues that order is now appealable and by separate motion asks that we “weigh the timing,
expressed intent, and merits” of that appeal “in consideration of the jurisdiction for [this appeal.]” Our
plenary power over that appeal, however, has expired. See TEX. R. APP. P. 19.1.


                                                   –2–
in the affidavit, gives any indication that appellant timely gave a notice of appeal to

prison authorities. Appellant’s statements alone are not enough to establish he timely

submitted the notice of appeal. And we have considered Texas Rule of Appellate

Procedure 2, which allows appellate courts to “suspend a rule’s operation in a

particular case,” but it also specifically prohibits us from “alter[ing] the time for

perfecting an appeal in a civil case.”

      This is due to the exceptionally strict and long-standing concept of the court’s

jurisdiction, which a party must timely and properly invoke or it is lost. The rule can

have harsh applications, such as this one, but it is a bright and generally unbendable

line the courts have drawn, and one we are duty-bound to respect. Accordingly,

because the notice of appeal was not timely filed, we must dismiss the appeal. See

TEX. R. APP. P. 42.3(a).


                                            /Cory L. Carlyle//
211143f.p05                                 CORY L. CARLYLE
                                            JUSTICE




                                         –3–
                           Court of Appeals
                    Fifth District of Texas at Dallas
                                  JUDGMENT

IN THE INTEREST OF M.J.Y,                   On Appeal from the 296th Judicial
E.T.Y., B.C.Y., V.C.Y., E.G.Y.,             District Court, Collin County, Texas
R.F.Y., S.R.Y., D.A.Y., A.A.Y.,             Trial Court Cause No. 296-52069-
X.I.Y., CHILDREN                            2020.
                                            Opinion delivered by Justice Carlyle,
No. 05-21-01143-CV                          Justices Smith and Garcia
                                            participating.

      In accordance with this Court’s opinion of this date, we DISMISS the appeal.


Judgment entered this 3rd day of March, 2022.




                                      –4–