1 John T. Boyd, Chi ef Justic e (Ret.), Sev enth Court ofAppeals, sitti ng by assignment. Tex . Gov ’t

CodeAnn. §7 5.002 (a)(1 ) (Vern on Sup p. 200 3). NO. 07-03-0188 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L E MAY 21, 2003

______________________________ TOMMY L. MCD OW ELL,

Appellant
v. MELA NIE M . W ALT, Appellee

_________________________________ FROM THE 181 ST DISTRICT COURT OF RANDALL COUNT Y; NO. 50,242-B; HON. JOHN B. BOARD, PRESIDING

_______________________________ Memor andum Opi

nion

_______________________________ Before QUINN and REAVIS, JJ. and BOYD, SJ. 1 Pending before us is a n ap pea l w hich Tom m y L. Mc Dow ell has attem pted to perfect. In response to a letter fromthis cou rtasking him to explain why the appeal should not be dismissed for want of jurisdiction for untim ely filing the notice of appeal, he tendered to us
a mo tion entitled “Appellant’s Motion to Deem Notice of Appeal as Timely Filed.” In the2

mot ion, he states that t hough the final judgm ent was signed on Fe bruary 19, 2003, he failed to rece ive a ctual noti ce of i t unti l Ap ril 4, 2003. His notice of appeal was f iled eighteen days later o n A pril 22, 2003. Acco mpany ing the mot ion is both a verification and aff idav itof appellant’s counsel. The form er attests to the a ccuracy of theallegations in the
mo tion and the latter essentially recites the sam e facts. Given the lack of notice, h e concludes by asking the court to deemhis not ice of ap pea l to be t im ely p urs uan t toRul e 4.2(a)(1) of

th e R ul es of

Ap pe l l at e P ro ce du re . W e o ve rr ul e t he mo tion and dismiss t he cause for want of j urisdiction. As to the belated notice of t he judgm ent, the Texa s Rules of AppellateProce dure address the subj ect. According to R ule 4.2 of those rules, if one affected by a judgm ent neither receives notice nor acquires actual knowledge of it w ithin 20 days of the date it was signed, then periods com menc ing on the signing of the judg ment begin upon the date the affected par

ty r ece ived not ice o r acquir e d actual knowledge. T EX . R. A PP . P. 4. 2(a)(1). However, the application of the rule is limited in several respects. That relevant h ere involves the procedure to be used to se cu re th e e xt en de d t i me per iod. Accor ding to R ule 4.2(b) of the appellate rules , that procedu re is gove rned by Texa s Rule of Civil Proce dure 306a.5. Id. at 4.2(b). According to Rul e 306a.5, the par ty adversely af fected by the del ay is req uire d topro ve in the trial court, on swo rn mot ion and notice, the date on which the party

or his att orney first either received a notice of the judgm entor acquired actual knowledge of t he s ignin g an d th at t his date was more t han twenty

days after the j udgme nt was signed. After t he trial court conducts i ts hearing , it then “must sign a written order that fi nds t h e3

date when the party or

the party’s attorney first either received notice or acquired actual know ledge that

the j udgm ent or or

der was signed .” T EX . R . APP . P . 4.2(c). In other w

ords, t he prosp ective ap pellant m ust obtain a finding f rom the trial co urt establishing that s uch not ice or knowledg e wa s receive d m ore than 20 days after the date the judgm ent was signed. We cannot make the requisite finding. Corro v. South weste rn Bell Media, Inc. , 784 S.w .2d 471, 474 (Tex. Ap p.–Corpus Christi 1989, no writ). Fina lly, without it, the a ffecte d party

cannot invoke t he benef

its of ap pellate Rule 4 .2(a)(1). Cantu
v. Lo ng or

ia , 878 S.W.2d 131, 132 (Tex . 1994); Conaway v. Lopez , 843 S.W.2d 732, 733- 34 (Tex . App. --Aust in 1992, n o wr it); accord, Metro Dairy Queen Stores v. Dominguez , 883 S.W.2d 322, 32 4 (Tex. App . - El Paso 1994, no writ) (holding that compliance with therule is ju risdictional). The record at bar does not indicate that t he t rial courtdeterm ined when the appellant or h is attorney received notice or actual knowledge of t he judgm ent. Nor does itindica te that appel lant moved the trial court to determine those matters. Consequentl y, he has not satisfied the prerequisites of Rule 4.2. Gi ven this and the fact that his noti ce wassigned approx ima te ly 61 da ys a ft er th e ju dg ment was s ig ne d, we co nc lu de th at we lack jurisdiction over the appeal. The appeal is dismissed for w ant of j urisdiction.

Per Curiam