James v. METRO (Tex.App.- Houston [1st Dist.] Dec. 11, 2008)(Bland)
(untimely notice of appeal, no appellate jurisdiction, appeal dismissed DWOJ)
DISMISS APPEAL: Opinion by Justice Bland
Before Justices Jennings, Hanks and Bland
01-08-00440-CV David James v. Metropolitan Transit Authority
Appeal from 281st District Court of Harris County
Trial Court Judge: Hon. David J. Bernal
David James appeals the trial court’s dismissal for want of prosecution of his personal injury case
against the Metropolitan Transit Authority (MTA). James did not timely file his notice of appeal, and
therefore we dismiss the appeal for want of jurisdiction.
The trial court signed its final judgment on May 24, 2007. James did not file any motion that would
extend the deadline for filing his notice of appeal. See Tex. R. App. P. 26.1(a); 26.3. Therefore,
James’s notice of appeal was due to be filed by June 23, 2007. See Tex. R. App. P. 26.1. James
did not file a notice of appeal until May 1, 2008, almost one year later. The Clerk of this court
advised James of this, and requested him to respond, by a date certain, explaining the jurisdictional
basis for this appeal.
In his response, James contends that the trial court clerk did not notify him of the trial court’s May 24,
2007 judgment. James asserts that he timely filed the notice of appeal because he did so within 30
days of his April 10, 2008 discovery, from an MTA representative, that the trial court had dismissed
the case almost a year earlier. As authority that this court has jurisdiction, appellant cites Knight v.
Schofield, 292 F.3d 709, 711 (11th Cir. Ga. 2002) and Texas Rule of Civil Procedure 306a.
Knight is inapplicable to the instant case as it addresses the tolling of the period for filing an
application for habeas corpus relief under 28 U.S.C., section 2254, the Antiterrorism and Effective
Death Penalty Act (AEDPA), when a state court has not informed an inmate of the denial of his
request for relief from the state courts. Knight, 292 F.3d at 710-11. It does not address whether, in a
civil case, this court has jurisdiction to consider an appeal in which the notice of appeal has been
filed nearly a year after entry of a final judgment.
Similarly, Texas Rule of Civil Procedure 306a does not authorize this court to consider appellant’s
attempted, untimely appeal. Rule 306a provides a procedure for a party, whom the trial court clerk
fails to notify of a final judgment within 20 days after it is signed, to seek to extend the appellate
timetable. Tex. R. Civ. P. 306a(4),(5). To do so, however, the affected party must prove the actual
date he received notice of the judgment in a hearing before the trial court. Tex. R. Civ. P. 306a(5). In
his response to this court, James did not demonstrate that he has done this. Further, Rule 306a(4)
places a limit on such extensions providing that “in no event shall such [extension of the appellate
timetable] begin more than 90 days after the original judgment or other appealable order was
Accordingly, we lack jurisdiction to consider the appeal. See Franklin v. Park, No. 14-98-00436-CV,
1999 Tex. App. LEXIS 1459 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (mem. op.) (dismissing
appeal for want of jurisdiction on holding that notice of appeal was untimely filed because it was filed
more than one year after final judgment); Tex. R. App. P. 4.2(a)(1).
We dismiss the appeal for want of jurisdiction. Tex. R. App. P. 42.3(a). Any pending motions are
likewise dismissed for want of jurisdiction.
Panel consists of Justices Jennings, Hanks, and Bland.