In Re: The Commitment of John Thomas Anderson v. the State of Texas ( 2023 )

VACATE and DISMISS and Opinion Filed March 23 , 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00651-CV
IN RE THE COMMITMENT OF JOHN THOMAS ANDERSON
On Appeal from the Criminal District Court No. 5
Dallas County, Texas
Trial Court Cause No. CV1570001
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Molberg, and Justice Goldstein
Opinion by Chief Justice Burns
This appeal challenges the trial court’s June 10, 2016 judgment determining
appellant, previously convicted of two felony aggravated sexual assault offenses and
sentenced to imprisonment, to be a sexually violent predator (“SVP”) and civilly
committing him for treatment. See TEX. HEALTH & SAFETY CODE ANN. §§ 841.062,
841.081. It is the second appeal from the 2016 judgment. The first appeal was filed
in September 2016, but was dismissed as untimely. See In re the Commitment of
Anderson, No. 05-16-01189-CV, 2016 WL 7448346, *1 (Tex. App.—Dallas Oct.
27, 2016, no pet.) (mem. op.). This appeal was filed in June 2022, after the criminal
district court granted an out-of-time appeal on appellant’s application for writ of
habeas corpus.1 Because the criminal district court did not have the authority to
grant an out-of-time appeal from the judgment being challenged, we vacate as void
the order granting the writ application and dismiss the application. See Dallas Cty.
Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex. App.—Dallas
1994, writ denied).
It is well-settled that the timely filing of a notice of appeal is jurisdictional.
See Brashear v. Victoria Gardens of McKinney, L.L.C., 302 S.W.3d 542, 545 (Tex.
App.—Dallas 2009, no pet.) (op. on reh’g). While out-of-time appeals are allowed
in criminal cases and district courts are allowed to grant them, out of-time appeals
have not been recognized in civil cases. See Phillips v. State, 429 S.W.2d 897, 899
(Tex. Crim. App. 1968) (recognizing out-of-time appeals in criminal cases);
Rodriguez v. Court of Appeals, Eighth Supreme Judicial Dist., 769 S.W.2d 554, 558
(Tex. Crim. App. 1989) (holding district court had jurisdiction of habeas application
and authority to grant out-of-time appeal in criminal case). In civil cases, as
provided by Texas Rule of Appellate Procedure 26.1, a notice of appeal is due within
thirty days of judgment unless a request for findings of fact and conclusions of law
or motion for new trial or to modify judgment is timely filed, in which case the notice
1
The criminal district court was the convicting court and, as the convicting court, had jurisdiction over
the civil SVP proceeding. See TEX. HEALTH & SAFETY CODE ANN. § 841.041(c). It appears the court
granted appellant’s writ application, which alleged ineffective assistance of counsel in connection with the
untimely appeal, under article V, section 8 of the Texas Constitution. See TEX. CONST. Art. 5, §8 (“District
Court judges shall have the power to issue writs necessary to enforce their jurisdiction.”); Ex parte Valle,
104 S.W.3d 888, 890 (Tex. Crim. App. 2003) (noting that article V, section 8 gives district courts plenary
power to issue habeas corpus writs).
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of appeal is due within ninety days of judgment. See TEX. R. APP. P. 26.1, 26.1(a).
Under appellate rule 26.3, an appellate court has the authority to grant an extension
motion if the notice of appeal is filed within fifteen days of the deadline and a
reasonable explanation for the late filing is provided. See id. 10.5(b), 26.3; Verburgt
v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). However, “once the period for
granting a motion for extension of time . . . has passed, a party can no longer invoke
the appellate court’s jurisdiction.” Verburgt, 959 S.W.2d at 617 (referencing former
appellate rule 41(a)(2), predecessor to rule 26.3).
At our direction, the parties filed letter briefs addressing our jurisdiction over
the appeal. Appellee agrees we lack jurisdiction, but appellant disputes that out-of-
time appeals are not allowed in civil cases. In support, he cites to two civil cases,
both juvenile delinquency cases, where the opinions reflect out-of-time appeals were
granted. The first case, In re E.C.D., No. 04-05-00391-CV, 2007 WL 516137 (Tex.
App.—San Antonio Feb. 21, 2007, no pet.) (mem. op.), was an appeal from an
adjudication of delinquent conduct based on a murder finding. The opinion is silent
as to the authority and reasons for an out of-time appeal being granted, stating only
that “E.C.D. requested, and was granted, an out-of-time appeal.” E.C.D., 2007 WL
516137, at *1. The second case, In re L.R., No. 08-01-00095–CV, 2001 WL 495900(Tex. App—El Paso May 10, 2001, order) (per curiam), was an appeal from an order
modifying disposition. The opinion recites the court granted a “motion to file an
out-of-time appeal” but also reflects the appeal was filed within the applicable
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timeframe provided under appellate rule 26.1 and was timely. See id. at *1-2; see
also TEX. R. APP. P. 26.1(a).
Although appellant cites these two cases in support of his argument that out-
of-time appeals are allowed in civil cases, we find neither one helpful to him. L.R.
is not on point since the appeal was timely filed. And, E.C.D., having provided no
reasoning or analysis, constitutes no authority on the issue.
The only authority allowing a notice of appeal to be filed beyond the
timeframe provided by appellate rule 26.1 is appellate rule 26.3, and the only court
that may allow an appeal to proceed under rule 26.3 is an appellate court. See TEX.
R. APP. P. 26.3; see also Verburgt, 959 S.W.2d at 617. Accordingly, the criminal
district court lacked jurisdiction to grant an out-of-time appeal in this case, and the
order granting the writ application is void. See In re D.S., 602 S.W.3d 504, 512
(Tex. 2020) (judgment is void when court rendering judgment lacked jurisdiction to
enter that particular judgment).
When, as here, the trial court lacked jurisdiction to render judgment, we must
vacate the judgment and dismiss the cause. See Funds Recovery, 887 S.W2d at 468.
We therefore vacate the order granting the writ application and dismiss the
application. See id./Robert D. Burns, III/
ROBERT D. BURNS, III
220651F.P05 CHIEF JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN RE THE COMMITMENT OF On Appeal from the Criminal District
JOHN THOMAS ANDERSON Court No. 5, Dallas County, Texas
Trial Court Cause No. CV1570001.
No. 05-22-00651-CV Opinion delivered by Chief Justice
Burns, Justices Molberg and
Goldstein participating.
In accordance with this Court’s opinion of this date, we VACATE the June
7, 2022 amended trial court’s findings of fact and conclusions of law and order on
applicant’s application for writ of habeas corpus and DISMISS the April 12, 2021
original application for writ of habeas corpus seeking an out-of-time appeal of the
judgment of civil commitment as a sexual predator.
Judgment entered March 23, 2023.
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