Opinion
NO. 03-18-00026-CV
02-09-2018
L. L. M., Appellant v. Texas Department of Family and Protective Services, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-FM-16-003448 , HONORABLE DARLENE BYRNE, JUDGE PRESIDING MEMORANDUM OPINION
After the parties entered into a mediated settlement agreement, the trial court signed a final decree of termination consistent with that agreement, terminating L.L.M.'s parental rights to her child on November 13, 2017. Because this appeal is accelerated, the deadline for L.L.M. to file a notice of appeal from the final decree was on or before December 4, 2017. See Tex. Fam. Code § 263.405; Tex. R. App. P. 26.1(b) (requiring notice of appeal in accelerated appeal to be filed within 20 days after judgment or order is signed).
We use initials to refer to the parent. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
On January 26, 2018, this Court notified L.L.M. and her former attorney that L.L.M.'s pro se notice of appeal that was filed in the Travis County District Court on January 2, 2018, appeared untimely and that the appeal would be dismissed for want of jurisdiction unless she filed a response explaining how this Court had jurisdiction over this appeal. See Tex. R. App. P. 42.3(a) (allowing appellate court to dismiss case for want of jurisdiction after giving ten days' notice to parties). L.L.M.'s former attorney has filed a response, stating that she understood that the notice of appeal was not timely filed but asked that the appeal be allowed to move forward. On February 5, 2018, L.L.M.'s current attorney also filed a motion to allow late filed pro se appeal and for this Court to exercise jurisdiction over this appeal.
Attached to her response, L.L.M.'s former attorney provided a copy of the trial court's order of substitution of attorney for L.L.M. that the trial court signed on January 23, 2018.
In an accelerated appeal, absent a motion to extend time under Texas Rule of Appellate Procedure 26.3, "the deadline for filing a notice of appeal is strictly set at twenty days after the judgment is signed, with no exceptions." In re K.A.F., 160 S.W.3d 923, 927 (Tex. 2005). The deadline for filing a notice of appeal may be extended by fifteen days if a motion for extension of time to file the notice of appeal is timely filed. See Tex. R. App. P. 26.3; Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997). Here, although L.L.M.'s current attorney has filed a motion for extension of time, the motion was not timely filed. Thus, we must deny the motion and dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f); see In re K.A.F., 160 S.W.3d at 927 (holding that untimely notice of appeal failed to invoke jurisdiction of appellate court); see also S.B. v. Texas Dep't of Family & Protective Servs., No. 03-17-00364-CV, 2017 Tex. App. LEXIS 5872, *1-2 (Tex. App.—Austin June 27, 2017, pet. denied) (mem. op.) (dismissing appeal for want of jurisdiction from judgment terminating appellant's parental rights because appellant's notice of appeal was not timely filed); cf. Tex Code Crim. Proc. art. 11.07 (addressing writs of habeas corpus); Mestas v. State, 214 S.W.3d 1, 3 (Tex. Crim. App. 2007) ("The effect of granting an out-of-time appeal is that it restores the defendant to the position he occupied immediately after the trial court signed the judgment of conviction."); Jones v. State, 98 S.W.3d 700, 702-04 (Tex. Crim. App. 2003) (addressing request for out-of-time appeal from criminal conviction).
/s/_________
Melissa Goodwin, Justice Before Chief Justice Rose, Justices Goodwin and Field Dismissed for Want of Jurisdiction Filed: February 9, 2018