in the Matter of the Marriage of Harold Joel Gardner and Shirley Mae Gardner ( 2010 )

NO. 12-10-00331-CV IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS ' APPEAL FROM THE 321ST IN THE MATTER OF THE MARRIAGE OF HAROLD JOEL GARDNER AND ' JUDICIAL DISTRICT COURT OF SHIRLEY MAE GARDNER ' SMITH COUNTY, TEXAS MEMORANDUM OPINION PER CURIAM This appeal is being dismissed for want of jurisdiction pursuant to Texas Rule of Appellate Procedure 42.3(a). The trial court’s judgment was signed on May 13, 2010. Under rule of appellate procedure 26.1, the notice of appeal must be filed within thirty days after the judgment is signed. Appellant, Harold Joel Gardner, filed a motion for new trial. See TEX. R. APP. P. 26.1(a) (providing that notice of appeal must be filed within ninety days after judgment signed if any party timely files motion for new trial). Therefore, his notice of appeal was due to have been filed no later than August 11, 2010. But Gardner did not file his notice of appeal until September 7, 2010. Because Gardner’s notice of appeal was not filed on or before August 11, 2010, it was untimely, and this court has no jurisdiction of the appeal. On October 29, 2010, this court notified Gardner pursuant to Texas Rules of Appellate Procedure 37.1 and 42.3 that his notice of appeal was untimely and he had not filed a timely motion for extension of time to file the notice of appeal as permitted by Texas Rule of Appellate Procedure 26.3. Gardner was further informed that the appeal would be dismissed unless, on or before November 8, 2010, the information in this appeal was amended to show the jurisdiction of this court. On November 8, 2010, Gardner filed a motion to extend the time for filing his notice of appeal. He explained that unbeknownst to him, his retained counsel did not comply with his instructions to initiate the appeal process in this matter. Gardner further asserts that he filed his notice of appeal “in the most timely manner available to him under the circumstances.” Despite these circumstances, however, this court is not authorized to extend the time for perfecting an appeal except as provided by Texas Rules of Appellate Procedure 26.1 and 26.3. Consequently, Gardner’s motion for extension of time to file the notice of appeal is overruled and the appeal is dismissed for want of jurisdiction. See TEX. R. APP. P. 42.3(a). Opinion delivered November 10, 2010. Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J. (PUBLISH)