in the Interest of K. L. L. a Child v. Department of Family and Protective Services , 506 S.W.3d 558 ( 2016 )

Opinion issued August 23, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00396-CV
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IN THE INTEREST OF K. L. L., A CHILD
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Case No. 2015-39280
OPINION
Appellant, William Solomon Lewis, filed a pro se petition in the underlying
case seeking to terminate his parental rights. In this appeal, Lewis attempts to appeal
the trial court’s dismissal of his underlying action for want of prosecution and the
purported denial by operation of law of his subsequent motion to reinstate. We
dismiss the appeal.
Generally, a notice of appeal is due within thirty days after the judgment is
signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is extended
to ninety days after the date the judgment is signed if, within thirty days after the
judgment is signed, any party timely files a motion for new trial, motion to modify
the judgment, motion to reinstate, or, under certain circumstances, a request for
findings of fact and conclusions of law. See TEX. R. APP. P. 26.1(a) (deadline to file
notice of appeal extended to ninety days after judgment is signed if party timely files
motion for new trial, motion to modify the judgment, motion to reinstate, or, under
certain circumstances, a request for findings of fact and conclusions of law); TEX.
R. CIV. P. 165a(3) (motion to reinstate case dismissed for want of prosecution “shall
be filed with the clerk within 30 days after the order of dismissal is signed or within
the period provided by Rule 306a.”); TEX. R. CIV. P. 306a(1) (“The date of judgment
or order is signed as shown of record shall determine the beginning of the periods
prescribed by these rules for the court’s plenary power to grant a new trial or to
vacate, modify, correct or reform a judgment or order and for filing in the trial court
the various documents that these rules authorize a party to file within such periods
including, but not limited to, motions for new trial, motions to modify judgment,
motions to reinstate a case dismissed for want of prosecution, motions to vacate
judgment and requests for findings of fact and conclusions of law . . . .”); TEX. R.
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CIV. P. 329b(a), (g) (motion to modify, correct, or reform judgment must be filed
within thirty days after judgment is signed).
Although the deadline to timely file a post-judgment motion is generally no
later than thirty days after the date the final judgment or order was signed, Texas
Rule of Civil Procedure 306a(4) provides an exception to this general rule by
extending the deadline when a party establishes that it did not receive notice of a
judgment within twenty days of the judgment being signed. TEX. R. CIV. P. 306a(4).
With respect to these parties, the deadline for filing post-judgment motions begins
to run “on the date that such party or his attorney received such notice or acquired
actual knowledge of the signing, whichever occurred first, but in no event shall such
periods begin more than ninety days after the original judgment or other appealable
order was signed.” Id. Texas Rule of Appellate Procedure 4.2(a)(1) similarly
provides an extension of appellate deadlines when a party establishes that it did not
receive notice of a trial court’s judgment within twenty days of the judgment being
signed. TEX. R. APP. P. 4.2(a)(1). In these cases, appellate deadlines that run from
the signing of the judgment begin on “the earlier of the date when the party receives
notice or acquires actual of the signing” of the judgment, but the deadline will not
be extended more than ninety days after the judgment was signed. Id.
Here, the trial court signed the dismissal order from which Lewis appeals on
November 16, 2015. Lewis filed his notice of appeal on May 11, 2016, one-hundred-
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and-forty-seven days after the dismissal. Lewis filed a motion to reinstate the case
and a supporting affidavit, claiming that he did not receive actual notice of the
dismissal until January 7, 2016, and thus his motion to reinstate filed on February 4,
2016 was timely filed. See TEX. R. CIV. PRO. 306(a)(4). Even considering the motion
to reinstate timely filed and applying the deadline for filing the notice of appeal from
January 7, 2016 (the date Lewis averred that he received actual notice of the order),
Lewis’s notice of appeal is untimely because it was filed more than ninety days later.
See TEX. R. APP. P. 4.2(a)(1), 26.1(a).
Without a timely filed notice of appeal, this Court lacks jurisdiction over the
appeal. See TEX. R. APP. P. 25.1. On June 3, 2016, the Clerk of this Court notified
Lewis that this appeal was subject to dismissal for want of jurisdiction unless he
demonstrated this Court had jurisdiction over this appeal. Lewis filed a response
claiming that his motion to reinstate was denied by operation of law after seventy-
five days and that he had ninety days from such denial to file his notice of appeal.
Lewis’s position is contrary to the applicable Texas Rules of Appellate Procedure.
The timely filing of a motion to reinstate extends the notice of appeal deadline to
ninety days from the date Lewis received notice of the dismissal, not the denial of
the motion to reinstate. See TEX. R. APP. P. 4.2(a)(1), 26.1. Lewis thus has failed to
demonstrate that this Court has jurisdiction over this appeal.
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Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP.
P. 42.3(a), 43.2(f). We dismiss any pending motions as moot.
Jane Bland
Justice
Panel consists of Justices Bland, Massengale, and Lloyd.
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