Opinion
No. 08-07-00136-CV
August 9, 2007.
Appeal from the 394th District Court of Brewster County, Texas, (TC# 2006-10-B8499-CV).
Before CHEW, C.J., McCLURE, and CARR, JJ.
MEMORANDUM OPINION
This appeal is before the Court on its own motion for determination of whether the appeal should be dismissed for want of jurisdiction. Having determined that Appellant, Texas Department of Public Safety, failed to timely file its notice of appeal, we dismiss the appeal for want of jurisdiction.
A civil appeal is perfected when the notice of appeal is filed. Tex.R.App.P. 26.1; see Restrepo v. First Nat'l Bank of Dona Ana County, N.M., 892 S.W.2d 237, 238 (Tex.App.-El Paso 1995, no writ) (applying former Tex.R.App.P. 40(a)(1)). The notice of appeal must be filed within 30 days after the judgment is signed or within 90 days if any party timely files a motion for new trial. Tex.R.App.P. 26.1(a)(1). The motion for new trial is due to be filed within thirty days after the judgment is signed. Tex.R.Civ.P. 329b(a). The trial court entered the order expunging the records of B. H. on December 15, 2006. Therefore, Appellant's notice of appeal was due to be filed no later than January 14, 2007 unless Appellant filed a motion for new trial within this same time period. Appellant did not file its motion for new trial until February 27, 2007. By letter dated May 11, 2007, the Court notified Appellant that its notice of appeal was untimely and gave Appellant ten days' notice of our intent to dismiss this appeal. Tex.R.App.P. 42.3. Appellant responded that it had not received notice of the expunction order until February 9, 2007 and it provided the Court with a copy of a Rule 306a motion filed in the trial court. However, Appellant candidly admitted that the trial court had not conducted a hearing or entered an order establishing February 9, 2007 as the date it received notice of the judgment. Tex.R.Civ.P. 306a(5). In the absence of such an order, Rule 306a is inapplicable and the appellate timetable began running on December 15, 2006 when the trial court signed the expunction order. Because Appellant failed to perfect the appeal with a timely notice of appeal, we dismiss the appeal for want of jurisdiction.