INTEREST OF v. << (2019)

MEMORANDUM OPINION

Richard Nichols, acting pro se, filed a notice of appeal from the “original Temporary Custody Order and Final Decree of Divorce” in a suit affecting the parent child relationship. According to the record, the trial court signed an agreed final decree of divorce on October 28, 2014. The record also contains a temporary restraining order, dated May 28, 2019.

Under the rules of appellate procedure, the notice of appeal must be filed within thirty days after the judgment is signed. See Tex. R. App. P. 26.1. Nichols filed his notice of appeal on July 5, 2019; thus, it was untimely. Rule 26.3 provides that a motion to extend the time for filing a notice of appeal must be filed within fifteen days after the deadline for filing the notice of appeal. Tex. R. App. P. 26.3. On July 12, this Court notified Appellant that the information received in this appeal does not show the jurisdiction of this Court, i.e., there is no timely notice of appeal. See Tex. R. App. P. 26.1. Because the May 28 order served as the most recent ruling from the trial court, Nichols was further notified that, pursuant to Rule 26.3 and Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997), we would imply a motion to extend time for filing the notice of appeal.¹ We informed Appellant that Rule 26.3 requires a motion complying with Rule 10.5(b). See Tex. R. App. P. 10.5(b), 26.3(b). Thus, we notified Nichols that the appeal would be dismissed for want of jurisdiction unless on or before July 22, Nichols informed this Court, in writing, of facts that reasonably explained his need for an extension of time to file the notice of appeal. See Tex. R. App. P. 42.3. This deadline expired without a written explanation from Nichols.

Although the higher court may grant an out-of-time appeal, we may not suspend the rules to alter the time to perfect a civil appeal. In re R.B.M., 338 S.W.3d 755, 758 (Tex. App.—Houston [14th Dist.] 2011, no pet.). Because this Court is not authorized to extend the time for perfecting an appeal except as provided by Texas Rules of Appellate Procedure 26.1 and 26.3, the appeal is dismissed for want of jurisdiction. See Tex. R. App. P. 42.3(a).

FOOTNOTES

1.   Nichols's notice of appeal does not specifically mention the May 28 order, nor are temporary orders in a custody case appealable. See In re McPeak, 525 S.W.3d 310, 313 (Tex. App.—Houston [14th Dist.] 2017, orig. proceeding); see also In re Jones, 263 S.W.3d 120, 122 (Tex. App.—Houston [1st Dist.] 2006, orig. proceeding). Nevertheless, in the event Nichols could show this Court's jurisdiction, we liberally construed his notice of appeal in light of the Texas Supreme Court's policy to apply the rules of procedure reasonably but liberally so that the right to appeal is not lost. See Warwick Towers Council of Co-Owners ex rel. St. Paul Fire & Marine Inc. Co. v. Park Warwick, L.P., 244 S.W.3d 838, 839 (Tex. 2008); see also Maxfield v. Terry, 888 S.W.2d 809, 811 (Tex. 1994).

PER CURIAM