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John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t

Code Ann. §75.002(a)(1) (Vernon Supp. 2003). 

NO. 07-03-0188-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

MAY 21, 2003

______________________________

TOMMY L. MCDOWELL,

Appellant

v.

MELANIE M. WALT, 

Appellee

_________________________________

FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

NO. 50,242-B; HON. JOHN B. BOARD, PRESIDING

_______________________________

Memorandum Opinion

_______________________________

Before QUINN and REAVIS, JJ. and BOYD, SJ.1

Pending before us is an appeal which Tommy L. McDowell has attempted to perfect.

In response to a letter from this court asking him to explain why the appeal should not be

dismissed for want of jurisdiction for untimely filing the notice of appeal, he tendered to us

a motion entitled “Appellant’s Motion to Deem Notice of Appeal as Timely Filed.” In the
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motion, he states that though the final judgment was signed on February 19, 2003, he

failed to receive actual notice of it until April 4, 2003. His notice of appeal was filed

eighteen days later on April 22, 2003. Accompanying the motion is both a verification and

affidavit of appellant’s counsel. The former attests to the accuracy of the allegations in the

motion and the latter essentially recites the same facts. Given the lack of notice, he

concludes by asking the court to deem his notice of appeal to be timely pursuant to Rule

4.2(a)(1) of the Rules of Appellate Procedure. We overrule the motion and dismiss the

cause for want of jurisdiction.

As to the belated notice of the judgment, the Texas Rules of Appellate Procedure

address the subject. According to Rule 4.2 of those rules, if one affected by a judgment

neither receives notice nor acquires actual knowledge of it within 20 days of the date it was

signed, then periods commencing on the signing of the judgment begin upon the date the

affected party received notice or acquired actual knowledge. TEX. R. APP. P. 4.2(a)(1).

However, the application of the rule is limited in several respects. That relevant here

involves the procedure to be used to secure the extended time period. According to Rule

4.2(b) of the appellate rules, that procedure is governed by Texas Rule of Civil Procedure

306a.5. Id. at 4.2(b). 

According to Rule 306a.5, the party adversely affected by the delay 

is required to prove in the trial court, on sworn motion and notice, the date

on which the party or his attorney first either received a notice of the

judgment or acquired actual knowledge of the signing and that this date was

more than twenty days after the judgment was signed.

After the trial court conducts its hearing, it then “must sign a written order that finds the
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date when the party or the party’s attorney first either received notice or acquired actual

knowledge that the judgment or order was signed.” TEX. R. APP. P. 4.2(c). 

In other words, the prospective appellant must obtain a finding from the trial court

establishing that such notice or knowledge was received more than 20 days after the date

the judgment was signed. We cannot make the requisite finding. Corro v. Southwestern

Bell Media, Inc., 784 S.w.2d 471, 474 (Tex. App.–Corpus Christi 1989, no writ). Finally,

without it, the affected party cannot invoke the benefits of appellate Rule 4.2(a)(1). Cantu

v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); Conaway v. Lopez, 843 S.W.2d 732, 733-

34 (Tex. App.--Austin 1992, no writ); accord, Metro Dairy Queen Stores v. Dominguez, 883

S.W.2d 322, 324 (Tex. App. - El Paso 1994, no writ) (holding that compliance with the rule

is jurisdictional).

The record at bar does not indicate that the trial court determined when the

appellant or his attorney received notice or actual knowledge of the judgment. Nor does

it indicate that appellant moved the trial court to determine those matters. Consequently,

he has not satisfied the prerequisites of Rule 4.2. Given this and the fact that his notice

was signed approximately 61 days after the judgment was signed, we conclude that we

lack jurisdiction over the appeal. 

The appeal is dismissed for want of jurisdiction. 

Per Curiam