Opinion
No. 14-06-00013-CV
Memorandum Opinion filed March 29, 2007.
On Appeal from the County Court No. 3 Probate Court Brazoria County, Texas, Trial Court Cause No. CI 032913.
Panel consists of Chief Justice HEDGES and Justices FOWLER and EDELMAN.
MEMORANDUM OPINION
The clerk's record in this appeal was filed February 8, 2007. The record reflects that appellant seeks to appeal from a final judgment signed August 26, 2005. Appellant's motion for new trial was due within 30 days after the judgment was signed, that is, by September 26, 2005. See TEX. R. CIV. P. 329b(a); TEX. R. CIV. P. 4. The motion for new trial was not filed until September 27, 2005. Appellant's notice of appeal was filed November 28, 2005.
Appellant also filed an affidavit of indigency with her notice of appeal. The trial court sustained the contest to the affidavit based upon defects in appellant's affidavit. On February 9, 2006, this court abated the appeal so that we could review appellant's challenge to the order sustaining the contest to her affidavit. A partial clerk's record containing documents related to the indigency hearing was filed on February 14, 2006. Pursuant to this court's order, on June 7, 2006, appellant filed a second amended affidavit of indigence. See In re J.W., 52 S.W.3d 730, 733 (Tex. 2001) (per curiam) (holding that an appellant should be granted leave to amend an affidavit of indigence when the court's ruling is based on a defect in the affidavit rather than a finding against indigency).
A supplemental partial clerk's record was filed in this court on August 14, 2006. The record contained timely contests to appellant's second amended affidavit of indigence filed by Sarah Caldwell, Official Court Reporter of Brazoria County Court at Law No. 2, and by Lynnette "Bitty" Erskine, Official Court Reporter of Brazoria County Court at Law No. 3. The supplemental clerk's record also contained a certification from the Brazoria County Clerk that the court file contains no court order ruling on the contests to appellant's second amended affidavit of indigence.
This court's order specified that the time deadlines contained in Texas Rule of Appellate Procedure 20.1(i) applied to appellant's amended affidavit. Rule 20.1(i) provides that a hearing must be held within 10 days after the date the affidavit of indigency was filed. Within that initial 10-day period, a court may extend the time for conducting the hearing for a period of no more that 20 days. TEX. R. APP. P. 20.1(i)(3). The rule further provides that unless the trial court signs an order sustaining the contest within this time period set for the hearing, the affidavit's allegations will be deemed true, and appellant will be allowed to proceed without advance payment of costs. TEX. R. APP. P. 20.1(i)(4).
Because the time passed for the trial court to conduct a hearing and enter an order sustaining the contests to the amended affidavit without an order being signed, the allegations in appellant's affidavit were deemed true and appellant was allowed to proceed on appeal without the advance payment of costs. See TEX. R. APP. P. 20.1(i)(4).
After the appeal was reinstated and the clerk's record was filed, the court notified all parties of our intention to dismiss the appeal for want of jurisdiction because the notice of appeal is untimely. See TEX. R. APP. P. 42.3(a). The notice of appeal must be filed within thirty days after the judgment is signed when appellant has not filed a timely motion for new trial, motion to modify the judgment, motion to reinstate, or request for findings of fact and conclusion of law. See TEX. R. APP. P. 26.1. Because appellant's motion for new trial was untimely, the time to file her notice of appeal was not extended to 90 days after judgment. See id. Appellant filed no response to this court's dismissal notice.
Appellant's notice of appeal, filed 94 days after the judgment was signed, is untimely. Additionally, the notice of appeal was filed well beyond the fifteen-day extension period provided by rule 26.3. See TEX. R. APP. P. 26.3. Therefore, we are without jurisdiction to consider this appeal.
Accordingly, the appeal is ordered dismissed.