Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 138th District Court of Cameron County,
Justices Rodriguez, Contreras, and Benavides
V. RODRIGUEZ Justice
Manuel Montemayor attempted to perfect an appeal from a
judgment entered by the 138th District Court of Cameron
County, Texas in cause number 2015-DCL-2012-B. The judgment
in this cause was signed on March 10, 2017. Appellant did not
file a motion for new trial and did not file his notice of
appeal until May 2, 2017. Appellant's notice of appeal
states he did not receive notice of the judgment until April
6, 2017. We conclude that the notice of appeal was not timely
filed and we dismiss the appeal for lack of jurisdiction.
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, the notice of appeal
shall be filed within ninety days after the judgment is
signed. See id. 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, 617-19 (1997)
(construing the predecessor to Rule 26). However, the
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.).
to Texas Rule of Appellate Procedure 26.1, appellant's
notice of appeal was due on April 10, 2017, but was not
filed until May 2, 2017. On May 5, 2017, 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. In response, Appellant
has filed an amended notice of appeal which contains similar
language to his original notice of appeal stating he
"invokes Rule 306a 4 of the Texas Rules of Civil
Procedure" and received notice and obtained knowledge of
the judgment on April 6, 2017.
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).
on the notice of appeal and the appellant's response to
this Court's notice regarding the defect, appellant has
not obtained 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
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 documents on
file and appellant's failure to timely perfect his
appeal, 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.
 Because the thirtieth day fell on a
Sunday, appellant had until the following Monday, April 10,
2017 to file the notice of appeal. See ...