NO. 12-20-00026-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

PERCY ABSHIRE, 

APPELLANT

V.

MELANIE ABSHIRE,

APPELLEE

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APPEAL FROM THE 273RD 

JUDICIAL DISTRICT COURT

SAN AUGUSTINE COUNTY, TEXAS

MEMORANDUM OPINION

PER CURIAM

On January 28, 2020, Percy Abshire filed a notice of appeal from a judgment signed on 

October 24, 2019.

Under the rules of appellate procedure, the notice of appeal must be filed (1) within thirty 

days after the judgment is signed absent a timely filed post judgment motion, or (2) within ninety 

days after the judgment is signed if a party timely files a motion for new trial, motion to modify 

the judgment, motion to reinstate under Rule 165a, or request for findings of fact and conclusions 

of law that are either required by the rules or, if not required, could be properly considered by the 

appellate court. See TEX. R. APP. P. 26.1(a). Here, Appellant filed a motion for new trial on 

November 20, making his notice of appeal due on or before January 22, 2020. Appellant filed his 

notice of appeal on January 28, without a motion for extension of time. 

On January 28, 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, 37.1. However, Appellant 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. 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 Appellant that the 

appeal would be dismissed unless on or before February 7, Appellant informed this Court, in 
2

writing, of facts that reasonably explained his need for an extension of time to file the notice of 

appeal. The deadline for responding to this Court’s notice expired without a response from

Appellant. 

Additionally, a party who is not excused by statute or the appellate rules from paying costs 

must pay--at the time an item is presented for filing--whatever fees are required by statute or Texas 

Supreme Court order. TEX. R. APP. P. 5. An appellate court may enforce Rule 5 by any order that 

is just. Id. After giving ten days’ notice, an appellate court may dismiss an appeal because the 

appellant failed to comply with a requirement of the appellate rules, a court order, or a notice from 

the clerk requiring a response or other action within a specified time. TEX. R. APP. P. 42.3(c).

On January 28, 2020, the Clerk of this Court notified Appellant that the filing fee in this 

appeal is due. See TEX. R. APP. P. 5. Appellant was informed that failure to remit the filing fee 

on or before February 7 would result in the Court’s taking appropriate action, including dismissal 

of the case without further notice. See TEX. R. APP. P. 42.3(c). The date for remitting the filing 

fee passed, and Appellant has not paid the fee or otherwise shown that he is excused from paying 

the fee.1 

Because Appellant failed, after notice, to comply with Rules 5, 26.1, and 26.3, the appeal 

is dismissed. See TEX. R. APP. P. 42.3(c).

Opinion delivered February 12, 2020.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)

 1 The case information sheet provided by the San Augustine County District Clerk’s Office reflects that 

Appellant has not been declared indigent.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

FEBRUARY 12, 2020

NO. 12-20-00026-CV

PERCY ABSHIRE,

Appellant

V.

MELANIE ABSHIRE,

Appellee

Appeal from the 273rd District Court 

of San Augustine County, Texas (Tr.Ct.No. D-14-5407)

THIS CAUSE came to be heard on the appellate record; and the same being 

considered, it is the opinion of this Court that this appeal should be dismissed.

It is therefore ORDERED, ADJUDGED and DECREED by this Court that this 

appeal be, and the same is, hereby dismissed; and that this decision be certified to the court below 

for observance.

By per curiam opinion. Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.