Court of Appeals of Texas, Seventh District, Amarillo
SAR 1 SEMI-AUTOMATIC ASSAULT RIFLE WITH MAGAZINE, ET AL., APPELLANTS
THE STATE OF TEXAS, APPELLEE
Appeal from the 137th District Court Lubbock County, Texas
Trial Court No. 2016-522, 855; Honorable Les Hatch, Presiding
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
ON APPELLANT'S MOTION FOR REINSTATEMENT AND MOTION TO
EXTEND TIME TO FILE NOTICE OF APPEAL
opinion and judgment dated March 7, 2017, this appeal was
dismissed for failure to pay the required filing
The filing fee has now been paid and payment was accompanied
by Appellant's Motion for Reinstatement. We
grant that motion and reinstate the appeal. Also pending
before this court is the Motion to Extend Time to File
Notice of Appeal filed by the real party in interest,
Joe Dray Rushing. We deny that motion.
to the limited record before this court, the trial court
signed a default judgment against Mr. Rushing on November 14,
2016. Because no post-judgment motions were ever filed, his
notice of appeal was due thirty days later, by December 14,
2016. See Tex. R. App. P. 26.1(a). This deadline
could have been extended to December 29th with a motion for
extension. See Id. at 10.5(b), 26.3. He did not,
however, file a notice of appeal until February 10, 2017. In
his motion to extend the time to file his notice of appeal,
Mr. Rushing requests that we apply the date his attorney
became aware of the default judgment, allegedly December 27,
2016, for purposes of determining the filing deadline under
Rule 26.1(a). We decline to do so as he has failed to comply
with Rule 4.2 of the Texas Rules of Appellate Procedure.
See Tex. R. App. P. 4.2.
party does not receive notice or acquire actual knowledge of
a judgment within twenty days of its signing, the period to
file a notice of appeal will not begin to run until the date
the party receives notice. Id. at 4.2(a). To gain
this additional time to file a notice of appeal, a party must
comply with Rule 306a(5) of the Texas Rules of Civil
Procedure and prove in the trial court, upon sworn motion,
the date on which the party or his attorney first received
notice of the judgment. Id. at 4.2(b); Tex.R.Civ.P.
306a(5). The Rule 306a(5) motion must be filed while the
trial court retains plenary power, measured from the alleged
date of notice in the motion. See Tex. R. Civ. P.
329b(d); John v. Marshall Health Servs.,
Inc., 58 S.W.3d 738, 741 (Tex. 2001) (per curiam).
Finally, the trial court must issue a written order that
finds the date the party received notice. See Tex.
R. App. P. 4.2(c).
to proceed under Rule 4.2 of the Texas Rules of Appellate
Procedure, Mr. Rushing was required to file a Rule 306a(5)
motion in the trial court, present proof, and obtain an order
from the trial court specifically finding the date he or his
attorney first received notice of the default judgment. He
was also required to file the Rule 306a(5) motion by January
26, 2017, within the trial court's plenary power,
measured by the date he allegedly received
notice. See Goodwill v. Tex. A&M Univ.
Med. Sch., No. 03-04-00255-CV, 2004 Tex.App. LEXIS 5784,
at *5-6 (Tex. App.-Austin July 1, 2004, no pet.) (mem. op.).
Having failed to file a Rule 306a(5) motion within the trial
court's plenary jurisdiction, he cannot satisfy the
requirements of Rule 4.2 of the Texas Rules of Appellate
Procedure, and therefore, he cannot benefit from the
rule's extension of the appellate timetable. See
id. at *6. Since Mr. Rushing's notice of appeal was
not timely filed under Rule 26.1(a) of the Texas Rules of
Appellate Procedure, we are without jurisdiction to entertain
a direct appeal from the default judgment. See Tex.
R. App. P. 25.1(b), 26.1(a).
interest of justice, however, we construe Mr. Rushing's
notice of appeal as a notice of restricted appeal.
See Tex. R. App. P. 25.1(d)(7) (required contents
for notice of restricted appeal); 26.1(c) (notice of
restricted appeal must be filed within six months after the
judgment is signed); 30 (allowing a party to file a
restricted appeal if the party did not participate in the
hearing resulting in the judgment complained of and did not
timely file a post-judgment motion, request for findings of
fact and conclusions of law, or a notice of appeal within the
time permitted by Rule 26.1(a)).
reinstated the appeal as a restricted appeal, we direct Mr.
Rushing to file an amended notice of appeal that complies
with Rule 25.1(d)(7) on or before May 12, 2017. See
Tex. R. App. P. 25.1(d)(7). We further direct that Mr.
Rushing make acceptable payment arrangements for the
clerk's record and that he request preparation of and
make acceptable payment arrangements for the reporter's
record, if any, in compliance with Rules 35.3(a)(2) and
(b)(3) of the Texas Rules of Appellate Procedure.
See Tex. R. App. P. 35.3(a)(2), (b)(3). Given the
uncertainty of a date by which to commence appellate
timetables, we deem Mr. Rushing's restricted notice of
appeal to be filed as of the date of this order. Accordingly,
the appellate record must be filed within thirty days of the
date of this order. See Tex. R. App. P. 35.1(c).
Appellate briefs will be due in accordance with the deadlines
provided in Rule 38.6 of the Texas Rules of Appellate
Procedure. See Tex. R. App. P. 38.6.