Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 201st District Court of Travis County, Texas.
Justices Contreras, Benavides, and Longoria
L. LONGORIA Justice.
Christopher James Friede attempted to perfect an appeal from
a final decree of divorce rendered by the 201st District
Court of Travis County in cause number D-1-FM-16-000634 on
December 15, 2016. On January 23, 2017, appellant filed a
motion for new trial alleging, inter alia, that he did not
receive notice of the judgment until he received a postcard
concerning the judgment on January 17, 2017. Appellant filed
his notice of appeal on April 13, 2017. On May 3, 2017, the
Clerk of this Court notified appellant that it appeared that
the notice of appeal had not been timely filed and requested
correction of this defect, if it could be done, within ten
days. Appellant did not file a response to this notice.
to appellant's notice of appeal: the judgment appealed
from was signed on December 16, 2016; appellant did not sign the
judgment and did not receive actual notice that the judgment
was entered until January 17, 2017; appellant filed a motion
for new trial on January 23, 2017; and the trial court held a
hearing on appellant's motion for new trial on March 31,
2017 and denied the motion at that time. The clerk's
record does not include an order denying appellant's
motion for new trial or any order pertaining to
appellant's notice of the judgment under Texas Rule of
Civil Procedure 306a. See Tex. R. Civ. P. 306a.
a timely filed notice of appeal from a final judgment or
recognized interlocutory order, we do not have jurisdiction
over an appeal. See Lehmann v. Har-Con Corp., 39
S.W.3d 191, 195 (Tex. 2001). The notice of appeal must be
filed within thirty days after the judgment or other
appealable order is signed when appellant has not filed a
timely motion for new trial, motion to modify the judgment,
motion to reinstate, or request for findings of fact and
conclusions of law. See Tex. R. App. P. 26.1. This
period is extended to ninety days when, as here, appellant
has filed a motion for new trial. See id.
Appellant's notice of appeal was not filed within this
ninety-day period of time. 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
id. R. 26.3; Verburgt v. Dorner, 959 S.W.2d
615, 617-18 (1997) (construing the predecessor to rule 26.1).
Appellant's notice of appeal was not filed within the
fifteen-day period provided by Rule 26.3.
Rule of Civil Procedure 306a(3) requires a trial court clerk
immediately to notify the parties or their attorneys, by
first class mail, of the signing of an appealable order.
See Tex. R. Civ. P. 306a(3). When more than twenty
days have passed between the date that the trial court signs
the order and the date that a party receives notice or
acquires actual knowledge of the signing, the period for
filing a notice of appeal may be extended to the earlier of
the date the party received notice or acquired actual
knowledge of the signing. Tex.R.App.P. 4.2(a)(1); see
Pilot Travel Ctrs., LLC v. McCray, 416 S.W.3d 168, 176
(Tex. App.-Dallas 2013, no pet.). To benefit from this
extended time period, appellant must have proven, in the
trial court on sworn motion and notice, the date on which he
first received notice or acquired actual knowledge of the
December 15, 2016 judgment and that the date was more than
twenty days after the date the order was signed. See
Tex. R. Civ. P. 306a(5); Tex.R.App.P. 4.2(a)(1), (b).
Further, the trial court must have signed a written order
finding the date when appellant first received notice or
acquired actual knowledge that the judgment was signed.
See Tex. R. App. P. 4.2(c); Moore Landrey,
L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536,
540 (Tex. App.- Houston [1st Dist.] 2003, no pet.); see
also Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994).
clerk's record filed in this Court does not include the
trial court order and finding required by Texas Rule of
Appellate Procedure 4.2(c). Without that order and finding,
the time for filing a notice of appeal of the December 15,
2016 judgment was not extended. See Nedd-Johnson v. Wells
Fargo Bank, N.A., 338 S.W.3d 612, 613 (Tex. App.-Dallas
2010, no pet); see also Johnson v. Linebarger Goggan
Blair & Sampson, LLP, No. 01-15-00950-CV, 2017 WL
1173886, at *3 (Tex. App.-Houston [1st Dist.] Mar. 30, 2017,
no pet. h.) (mem. op.). Because appellant did not follow the
procedures required by Texas Rule of Civil Procedure 306a and
Texas Rule of Appellate Procedure 4.2 to gain additional time
to perfect his appeal, we lack jurisdiction over his
attempted appeal. See Mem'l Hosp. v. Gillis, 741
S.W.2d 364, 365 (Tex. 1987) (per curiam).
Court, having examined and fully considered the notice of
appeal and the record before this Court, is of the opinion
that we lack jurisdiction over this appeal. Accordingly, we
DISMISS the appeal for WANT OF JURISDICTION. See
Tex. R. App. P. 42.3(a). All pending motions, if any, are
 This appeal was transferred to this
Court from the Third Court of Appeals by order of the Texas
Supreme Court. See Tex. Gov't Code Ann. §
22.220(a) (West, Westlaw through 2015 R.S.) (delineating the
jurisdiction of appellate courts); Tex. Gov't Code Ann.
§ 73.001 (West, Westlaw through 2015 R.S.) (granting the
supreme court the authority to transfer cases from one court
of appeals to another at any time that there is "good
cause" for the transfer).
 We note that the judgment appears to
have been signed on December 15, 2016; however, the index to
the clerk's record indicates that the judgment was signed
on December 16, 2016. This discrepancy ...