Opinion
NUMBER 13-16-00089-CV
03-03-2016
LOUIS A. OLIVAREZ, Appellant, v. WEST OSO INDEPENDENT SCHOOL DISTRICT, Appellee.
On appeal from the 319th District Court of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Perkes, and Longoria
Memorandum OpinionPer Curiam
Appellant, Luis A. Olivarez, attempted to perfect an appeal from a judgment entered by the 319th District Court of Nueces County, Texas, in cause number 2012DCV-2138-G. Judgment in this cause was signed on February 26, 2013. Pursuant to Texas Rule of Appellate Procedure 26.1, appellant's notice of appeal was due on March 28, 2013, but was not filed until February 5, 2016.
On February 9, 2016, the Clerk of this Court notified appellant of this defect so that steps could be taken to correct the defect, if it could be done. Appellant was advised that, if the defect was not corrected within ten days from the date of receipt of this Court's letter, the appeal would be dismissed. Appellant has responded, requesting this Court remand or reinstate this case in the trial court. Appellant states he was not notified of the judgment of the trial court and did not learn of the judgment until May 2015.
Absent a timely filed notice of appeal from a final judgment or recognized interlocutory order, we do not have jurisdiction over an appeal. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). The notice of appeal must be filed within thirty days after the judgment or other appealable order 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. Appellant's notice of appeal was not filed within this thirty-day period of time.
When a party adversely affected by the judgment does not receive notice within twenty days of judgment, the period for filing the appeal begins to run from the date the party received notice, provided no more than ninety days have elapsed since the signing of the judgment or other appealable order. See TEX. R. CIV. P. 306a (4); TEX. R. APP. P. 4.2(a)(1). This rule expressly provides that "in no event shall such periods begin more than ninety days after the original judgment or other appealable order was signed." In the instant case, appellant contends that he did not receive notice of the judgment until May 2015, more than two years after it was rendered. Accordingly, rule 306a(4) is inapplicable. See Levit v. Adams, 850 S.W.2d 469, 470 (Tex. 1993); Jon v. Stanley, 150 S.W.3d 244, 248 (Tex. App.-Texarkana 2004, no pet.). Moreover, even if it were to apply, appellant did not follow the procedures required in Texas Rule of Civil Procedure 306a and Texas Rule of Appellate Procedure 4.2 to gain addition time to perfect his appeal. See Mem'l Hosp. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam) (holding that compliance with the provisions of rule 306a is a jurisdictional prerequisite).
The Court, having examined and fully considered the documents on file, appellant's failure to timely perfect his appeal, and appellant's response to this Court's notice, is of the opinion that the appeal should be dismissed for want of jurisdiction. Accordingly, the appeal is hereby DISMISSED FOR WANT OF JURISDICTION. See TEX. R. APP. P. 42.3(a)(c). Any pending motions are likewise DISMISSED.
PER CURIAM Delivered and filed the 3rd day of March, 2016.