Unreported / Non-Citable
Background
The appeal arose from a final order of the 266th District Court in Erath County, Texas, modifying the parent-child relationship concerning R.T. The trial court signed the order on July 31, 2026, in Trial Court Cause No. CV33154. The order recited, among other things, that both the appellant and his attorney were present in court when the trial court orally rendered its ruling. The appellant’s attorney received notice that the final order had been signed on that same day.
The appellant did not file a notice of appeal until September 22, 2026. When the appeal was docketed, the Eleventh Court of Appeals notified him by letter that the notice appeared untimely and requested a response showing grounds to continue the appeal. In response, the appellant filed a motion for an extension of time to file the notice of appeal. He requested seven additional days from any order granting the motion and asked the court to “deem Appellant’s notice of appeal timely filed.” The appellee opposed the motion, arguing that both filings fell substantially outside the fifteen-day grace period allowed by Texas Rule of Appellate Procedure 26.3 and that the court therefore lacked jurisdiction.
The appellant’s attorney conceded that he had made a mistake by failing to notice that the final order had been signed because he “did not realize he had received more than only the [proposed order] filed with the Court.” The court found that, at a minimum, the appellant and his attorney knew by September 6, 2026, that the final order had been signed. Neither the notice of appeal nor the extension motion explained the further delay in filing after September 6. The court characterized the motion as providing only a partial explanation for untimeliness and as failing to show grounds on which the appeal could continue.
The Court’s Holding
The court held that the appellant had timely filed neither his notice of appeal nor his motion for an extension of time, citing Texas Rules of Appellate Procedure 4.1, 26.1, and 26.3. No postjudgment motion had been filed that would extend the time for appealing. The court noted Rule 26.1’s ninety-day period when a party timely files certain postjudgment motions or a request for findings of fact and conclusions of law, but that provision did not apply here. The appellant therefore was required to file his notice of appeal no later than August 31, 2026.
After discovering the untimely notice, the appellant had to file a motion for an extension of time no later than September 15, 2026, to invoke the appellate court’s jurisdiction. He did not do so. Instead, he filed the notice of appeal on September 22, after both the notice-of-appeal deadline and the extension-motion deadline had expired. Citing Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997), the court explained that a party can no longer invoke an appellate court’s jurisdiction once the period for granting an extension motion has passed.
The court further stated that Texas Rule of Appellate Procedure 2 prohibits it from suspending the appellate rules “to alter the time for perfecting an appeal in a civil case.” Without a timely notice of appeal, it lacked jurisdiction to consider the appeal. The court cited Wilkins v. Methodist Health Care System, 160 S.W.3d 559, 564 (Tex. 2005), and Garza v. Hibernia National Bank, 227 S.W.3d 233, 233–34 (Tex. App.—Houston [1st Dist.] 2007, no pet.), as well as Verburgt. It dismissed the appeal for want of jurisdiction under Texas Rule of Appellate Procedure 42.3(a) and dismissed the appellant’s motion for an extension of time as moot.
Key Takeaways
- The final order was signed July 31, 2026, and no qualifying postjudgment filing extended the ordinary appeal deadline; the notice of appeal was due August 31.
- The extension motion was due September 15, but the appellant did not file his notice of appeal until September 22, after both jurisdictional deadlines had expired.
- The attorney’s concession explained the initial oversight but did not explain the delay after the appellant and counsel knew, at least by September 6, that the final order had been signed.
- The court dismissed the appeal for want of jurisdiction and dismissed the extension motion as moot; it did not review the merits of the parent-child modification order.
Why It Matters
The memorandum opinion underscores the jurisdictional consequences of missing the deadlines for both a notice of appeal and a motion to extend the time to file one. On these facts, counsel’s mistake and partial explanation could not preserve appellate review, particularly where the filing did not address the delay after counsel and the appellant had actual awareness of the signed order.
The ruling is circumstance-specific: the court applied the stated deadlines to the record before it, including the absence of any deadline-extending postjudgment motion. It did not announce that every attorney error or every late filing produces the same result. Its disposition rested on the expired periods under Rules 26.1 and 26.3 and its inability under Rule 2 to suspend the rules to alter the time for perfecting a civil appeal.