$10,831.00 v. STATE, 11-08-00081-CV (Tex.App.-Eastland 3-27-2008)

$10,831.00 U.S. CURRENCY, Appellant v. STATE OF TEXAS, Appellee.

No. 11-08-00081-CVCourt of Appeals of Texas, Eleventh District, Eastland.
Opinion filed March 27, 2008.

On Appeal from the 29th District Court, Palo Pinto County, Texas Trial Court Cause No. C40973.

Panel consists of: WRIGHT, C.J., McCall, J., and STRANGE, J.



On July 17, 2007, the trial court signed the agreed judgment. On February 27, 2008, Donald Wayne Dowling filed a pro se notice of appeal, 225 days after the date the judgment was signed. The appeal is dismissed for want of jurisdiction.

Upon receipt of the documents in this court, Dowling was instructed that it appeared the appeal was untimely and directed to respond showing grounds for continuing the appeal. Dowling has filed a response.

In his response, Dowling states that the judgment was the result of fraud on the part of his counsel, that he was not personally served with notice of the judgment, and that he did not become aware of the July 2007 judgment until September 11, 2007. Dowling further states that, once he became aware of the judgment, he “immediately” filed a motion to vacate in December of 2007. Because no written order was entered concerning his motion to vacate, Dowling asks this court to consider his motion to vacate as a notice of appeal.

TEX. R. APP. P. 26.1 provides that the time to perfect an appeal is counted from the date the judgment is signed. The notice of appeal must be filed within ninety days of the date the judgment is signed if a motion for new trial (or to vacate) is timely filed or within thirty days if no motion for new trial (or to vacate) is filed. Rule 26.1. To be timely, the motion for new trial (or to vacate) must be filed in the trial court within thirty days of the date the judgment is signed. TEX. R. CIV. P. 329b.

In the event that a party adversely affected does not receive actual notice of a judgment within twenty days of the date the judgment was signed, the party must proceed under TEX. R. CIV. P. 306a to establish the date of notice and to extend the appellate timetable. TEX. R. APP. P. 4.2.

Dowling has neither proceeded under Rule 306a nor timely filed a motion for new trial (or to vacate) under Rule 329b. Dowling has not complied with the requirements of Rule 26.1, has failed to file a timely motion for extension of time pursuant to TEX. R. APP. P. 26.3, and has not complied with Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997).

Dowling has failed to invoke the jurisdiction of this court; therefore, the appeal is dismissed.