in the Interest of M.A.H., a Child ( 2002 )

In the Interest of M.A.H., a Child

  IN THE

TENTH COURT OF APPEALS

No. 10-02-234-CV

IN THE INTEREST OF M.A.H., A CHILD

From the 220th District Court

Bosque County, Texas

Trial Court # 01-08-23001-BCFM

NOTICE REGARDING STATUS OF APPEAL

      A jury found that Destiny Dawn Merritt’s parental rights with respect to her daughter M.A.H. should be terminated. The trial court signed a decree in accordance with the verdict on May 29, 2002. Merritt filed a motion for new trial and an indigence affidavit on June 27. She did not file a formal notice of appeal until August 9, twenty-three days after the trial court sustained the court reporter’s contest of her indigence affidavit.

TIMELINESS OF NOTICE OF APPEAL

      Based on a recent amendment to the Family Code, this is an accelerated appeal. Tex. Fam. Code. Ann. § 109.002(a) (Vernon 2002). Therefore, the notice of appeal was due twenty days after the decree was signed, which was June 18. Tex. R. App. P. 26.1(b). Merritt’s motion for new trial did not extend the due date for her notice of appeal. Id. 28.1. Accordingly, her formal notice of appeal is untimely.

      Nevertheless, “[a] court of appeals has jurisdiction over any appeal where the appellant files an instrument that ‘was filed in a bona fide attempt to invoke appellate court jurisdiction.’” Grand Prairie Indep. Sch. Dist. v. S. Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991) (quoting Walker v. Blue Water Garden Apartments, 776 S.W.2d 578, 581 (Tex. 1989)); accord Foster v. Williams, 74 S.W.3d 200, 203 (Tex. App.—Texarkana 2002, pet. denied); Health Care Ctrs of Tex., Inc. v. Nolen, 62 S.W.3d 813, 815 (Tex. App.—Waco 2001, no pet.). Only two documents arguably can be considered to have invoked our jurisdiction under this principle: the motion for new trial or the indigence affidavit. See Aguirre v. Texas Dep’t of Protective & Regulatory Servs., 917 S.W.2d 462, 464 (Tex. App.—Austin 1996, order, writ denied); J.C. v. State, 892 S.W.2d 85, 86 (Tex. App.—El Paso 1994, no writ); see also Foster, 74 S.W.3d at 203 (construing docketing statement as bona fide attempt to perfect appeal). However, Merritt filed these documents nine days late. See Tex. R. App. P. 26.1(b).

IMPLIED EXTENSION

      The appellate rules permit this Court to extend the time for filing the notice of appeal if a party files the notice of appeal in the trial court and a motion for extension in this Court within fifteen days “after the deadline for filing the notice of appeal.” Id. 26.3. Merritt filed the motion for new trial and the indigence affidavit within this fifteen-day window. If she filed one of these documents in a “bona fide attempt” to invoke our jurisdiction, then we must imply a motion for extension. Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997); In re B.G., No. 10-02-019-CV, slip op. at 2, 2002 WL 1339502, at *1 (Tex. App.—Waco June 19, 2002, order); Weik v. Second Baptist Church, 988 S.W.2d 437, 439 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). However, this implied motion will not be granted unless Merritt can provide a reasonable explanation for the late filing. Tex. R. App. P. 10.5(b)(1)(C), 26.3(b); Verburgt, 959 S.W.2d at 617; Cotton v. Cotton, 57 S.W.3d 506, 508-09 (Tex. App.—Waco 2001, no pet.); Coronado v. Farming Tech., Inc., 994 S.W.2d 901, 901 (Tex. App.—Houston [1st Dist.] 1999, order, no pet.).

      Therefore, we hereby notify Merritt that her appeal is subject to dismissal for want of jurisdiction unless she files a response showing a reasonable explanation for the late filing of her appeal. See Tex. R. App. P. 42.3(a); B.G., No. 10-02-019-CV, slip op. at 3, 2002 WL 1339502, at *1; Coronado, 994 S.W.2d at 901-02. If she fails to do so within ten days after the date of this notice, her appeal will be dismissed for want of jurisdiction.  

                                                                   PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

      (Justice Gray concurring and dissenting)

Notice issued and filed October 16, 2002

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me of employees while engaged in the course and scope of employment traveling to and from work. And, if Mathis is engaged in the course and scope of employment, the co-worker with him cannot sue Mathis (fellow servant doctrine), but a guest passenger will be able to sue Limestone.

      I believe the existing law is clear. If Mathis was an employee, he was engaged in nothing more than a routine trip to his place of employment when he was involved in an automobile/motorcycle collision resulting in the death of Mr. McNamara. It was a tragic event and Mr. McNamara’s family may be entitled to compensation for his death. But the law the majority creates to allow them to recover from Limestone is not supported by existing law, nor should we extend existing law to make Limestone liable on these facts. Because the majority holds that on these facts it could be determined that Mathis was acting in the course and scope of his employment for which Limestone would thus be liable if Mathis was negligent, I respectfully dissent.

                                                                               TOM GRAY

                                                                               Justice

Dissenting opinion delivered and filed January 10, 2001

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