Ralph Wallace Shamblin v. Texas Board of Pardons and Parole ( 2003 )

Appellant=s Motion for Rehearing Overruled; Opinion of August 28, 2003, Withdrawn; Dismissed and Corrected filed October 2, 20

Appellant=s Motion for Rehearing Overruled; Opinion of August 28, 2003, Withdrawn; Dismissed and Corrected filed October 2, 2003.

In The

Fourteenth Court of Appeals

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       NO. 14-03-00614-CV

       NO. 14-03-00615-CV

       NO. 14-03-00616-CV

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RALPH WALLACE SHAMBLIN, Appellant

V.

TEXAS BOARD OF PARDONS & PAROLE, ET AL., Appellees

On Appeal from the 152nd District Court

Harris County, Texas

Trial Court Cause Nos. 02-18575; 02-18576 & 02-18578

C O R R E C T E D O P I N I O N

This is an attempted appeal from a judgment, signed January 13, 2003.  A motion to reinstate was filed on February 11, 2003.  Appellant=s notice of appeal was filed May 5, 2003.  On August 28, 2003, we issued an opinion dismissing the appeal for lack of jurisdiction.  On September 11, 2003, appellant filed a motion for rehearing.  We withdraw our opinion of August 28, 2003, overrule appellant=s motion for rehearing, and issue this corrected opinion.

The notice of appeal must be filed within thirty days after the judgment 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

Although appellant filed a timely motion to reinstate, it was not verified.  Since a motion to reinstate is required to be verified, an unverified motion extends neither the trial court's plenary power, nor the time in which to perfect an appeal.  Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex. 1986); State on Behalf of Texas Dept. of Transp. v. Martini, 902 S.W.2d 138, 140 (Tex. App.CHouston [1st Dist.] 1995, no writ). 

In his motion for rehearing, appellant contends that, as an inmate, he is not required to verify his motion to reinstate.  By statute, an inmate may file an unsworn declaration in lieu of a written sworn declaration or verification.  Tex. Civ. Prac. & Rem. Code Ann. ' 132.001(a) (Vernon 1997).  An unsworn declaration made under chapter 132 must be in writing and subscribed by the person making the declaration as true under penalty of perjury.  Id. at ' 132.002.  The unsworn declaration should be substantially similar to the form of unsworn declaration provided in section 132.003.^[1]  Id. at ' 132.003.

The motion to reinstate filed by appellant contains no unsworn declaration complying with Chapter 132.  Thus, appellant=s motion to reinstate neither extended the trial court's plenary power, nor the time in which to perfect an appeal.

On August 12, 2003, notification was transmitted to all parties of the Court=s intent to dismiss the appeal for want of jurisdiction.  See Tex. R. App. P. 42.3(a).  Appellant=s response fails to demonstrate that this Court has jurisdiction to entertain the appeal.

Accordingly, the appeal is ordered dismissed.

PER CURIAM

Judgment rendered and Corrected Opinion filed October 2, 2003.

Panel consists of Justices Yates, Hudson, and Fowler.

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^[1]  The form of the unsworn declaration should be substantially as follows:

AI, (insert name and inmate identifying number from Texas Department of Corrections or county jail), being presently incarcerated in (insert Texas Department of Corrections unit name or county jail name) in _____ County, Texas, declare under penalty of perjury that the foregoing is true and correct.  Executed on (date).  (signature)@

Tex. Civ. Prac. & Rem. Code Ann. ' 132.003 (Vernon 1997).