Thursday, August 21, 2008

Fatal Mistake on Appeal - Missing deadline

Court of Appeals dismisses appeal as untimely where notice of appeal was filed day after it was due. Right to request extension waived.

How much time to file appeal (from final judgment*) in Texas?

A notice of appeal must be filed within 30 days after the date that a judgment is signed. Tex. R. App. P. 26.1. This time period is extended to 90 days if any party files: (1) a motion for new trial; (2) a motion to modify judgment; (3) a motion to reinstate under Texas Rule of Civil Procedure 165a; or (4) a request for findings of fact and conclusions of law if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court. Tex. R. App. P. 26.1(a).

An untimely notice of appeal fails to vest the appellate court with jurisdiction to hear the case. Slaton v. State, 981 S.W.2d 208, 209–10 (Tex. Crim. App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); Douglas v. State, 987 S.W.2d 605, 605–06 (Tex. App.—Houston [1st Dist.] 1999, no pet.)

Here, the trial court signed the judgment in Tran’s case on June 8, 2007. Therefore, Tran’s notice of appeal was due by July 9, 2007. Tran filed his notice of appeal on August 9, 2007, which was 31 days after the expiration of the time period during which any notice of appeal must be filed.

Tran did not move for extension of time to file his notice of appeal. See Tex. R. App. P. 26.3 (allowing motion for extension of time to file notice of appeal within 15 days of notice’s due date). Accordingly, Tran’s notice of appeal was untimely, and we lack jurisdiction to hear this appeal.


We dismiss the appeal for lack of jurisdiction. All other pending issues in this appeal are overruled as moot. The Clerk is directed to issue the mandate. See Tex. R. App. P. 18.1.


Tran v. Poe
(Tex.App. - Houston [1st Dist.] Aug. 14, 2008)(per curiam) (prisoner lawsuits, inmate litigation, jurisdictional dismissal of appeals; notice of appeal was filed too late)
Before Chief Justice Sherry Radack, Justices Evelyn Keyes and Laura Carter Higley
Appellate Cause No. 01-07-00656-CV
Full style: Anh Viet Tran v. Ted Poe and Charles A. Rosenthal, Jr.
Appeal from 334th District Court of Harris County

*) Note different deadline for appealing from interlocutory orders:

Under the current rules, an appeal is perfected when a written notice of appeal is filed. Tex. R. App. P. 25.1(a). Appeals from interlocutory orders, when allowed, are accelerated appeals. Tex. R. App. P. 28.1. In accelerated appeals, the notice of appeal must be filed within twenty days after the signing of the order or judgment being appealed. Tex. R. App. P. 26.1(b).

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