### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00001- CV

Milton Lin dsey, Appellan t

v.
Kat hryn Ram sey, Appellee

F ROM CO UNTY COURT AT LAW NO . 1 O F TRAVIS CO UNTY NO. C-1 -CV- 12- 0121 82, H ONO RAB LE ERIC M . SH EP P ERD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Appellee Kathry

n Ramsey filed a suit for forc ible detainer ag ainst appellant
Milton L indsey in justice court. On November 27, 2012, afte r a jury found in R am s ey ’s fa v o r,
the justice court signe d a judgme nt awa rding her possession of the proper ty and dama g es. On

Dec ember 3, the Monday following five day s from the date of the justice court’s judgme nt, L indsey
filed a timely appea l bond, seeking to appea l to the county court. See fo rm er T ex
. R

. Civ. P. 749 (1988, repe aled 2013). On De cember 17, the county court sent a “Notice of Appea l and Costs,” 1 stating that L indsey had twenty day s to pay his filing fee s. See Tex. R. Civ. P. 143a (in appea l
from justice court, appellant must pay costs within t we n t y day s “af ter being notified to do so by

The rules of civil proce dure g overning prac tice in the justice courts wer e amende d in 2013, 1 eff ective Aug us t 3 1 , 2 0 1 3 , an d the new rules are to apply to case s pending on that date unless it would be infea sible or unjust. See Tex. Sup. Ct. Misc. Docke t No. 13-90 4 9

. C u rr en t rul e 510.9 g overns appea ls from a justice court’s judgme nt in a forc ible entry case and imposes the same fiveday deadline f

or filing a notice of

appea l. See Tex. R. C iv. P. 510.9.the county cler k” or appea l is “dee med not perf ecte d and the county cler k shall return al l paper s

. . . to the justice of the peac e having orig inal jurisdiction,” who shall “proc eed as though no
appea l had been attempted”)

. The notice was sent via cer tified mail and was signe d for by someone

at L indsey ’s addre ss on Dec ember 18. On J anuar y 7, 2013, beca

use the filing fee had not been 2
tender ed, the county cler k rema nded the ap p eal to the justice court. The county cler k ref used

L indsey ’s attempt to pay the filing fee on J anuar y 8. On Fe bruar

y 7, L indsey filed a motion to vacate
the remand and re instate the case, arg uing that his filing- fee deadline was J anuar y 9, twenty -three day s from the date the notice was mailed. See former Tex. R. Civ. P. 21a (if notice requiring action 3
within presc ribed time is serve d by mail, “thre e day s shall be added to the presc ribed period” ). The 4
county court held a hear ing on Octob er 3 and denied L indsey ’s motion. L indsey filed a timely

reques t fo r fi ndings of fac t and conclusions of law and on Dec ember 31, 2013, filed a notice of

appea l from the county

court’s O ctober

3 order

. First, we believe that we lack jurisd i ct i o n for the same rea sons we explained in
McG aughy v. Lamm , No. 03-99-00643- CV, 2000 WL 147649 (Tex. App.—Austin Feb. 10, 2000,

n o p et.) (not desig nated for publication), a case L indsey cites to support his contention that ru l e

L indsey stated during a hear ing that he himself did not rec eive the notice until Dec ember 2 20, but, even if r eleva

nt, that statement does not appe ar to ha ve bee n made unde r oath.
L indsey also filed a motion to vacate and reinstate in the justice cour t, which signe d an 3 order on Fe bruar

y 15, 2 0 1 3, deny ing the motion and st ating that it had is sued a final j udg ment on the jury ’s verdic t and that L indsey had not perf ecte d his appea l under rule 143a. L indsey asks us to take judicial notice of this order , which was attache d to his brief but not made part o f t h e cler k’s
rec ord, and Ramsey does not dispute the order’s validit y
. L indsey does not appea r t o have filed a new notice of appe al in the county court following the justice cour t’s denial of his motion.
Rule 21a was amende d in 2013, eff ective J anuar

y 1, 2014. See Tex. Sup. Ct. Misc. Docke t 4 13-9165. Curre nt rule 21a inc ludes the same thr ee- day extension. See Tex. R. C iv. P. 21a(c).
2329b, discussed briefly below, does not apply

. McG au gh y soug ht to appea l as an indige nt from

the justice court’s judgme nt ag ainst him. Id. at *1. The justice court denied his motion to proce ed

as a pauper , and McGa

ug hy filed a notice of appea l with the county court. Id. The county cou rt
order ed McGa

ug hy to post an appea l bond and, when he did not do so, “the case was rema nded to
the justice of the peac e.” Id. McGa ug hy soug ht to appea l, but we dismiss ed for want of jurisdiction, holding that the county court had n o t re n d er ed an appea lable order

. Id. We observe d that under
rule 143a, the county cler k returne d all the paper s in the cas e to the justice court, which was then require d to proce ed as if no appea l had been attempted. Id. ; see Tex. R. Civ. P. 143a. We held that

an appea l f

rom the county court’s decision re jecting McGa

ug hy ’s attempt to appea l as an indig ent

was not an a

uthorized interlocutory

appea l. McG aughy , 2000 WL 147649, at *1.

5
The county cler

k rema nded this case to the justice court on J anuar y 7, 2013. Under
the explanation provided in McG aughy , the co u n t y court did not sign an appea lable judgme nt or
order when the c ase w as remanded, and the county court lacked jurisdi ction to enter its October 3

o r d e r
. S e e id

. A lt h o u g h L in d s e y a s s e r

ts th a t th e c o u n ty c o u r t’ s O c to b e r 3 o r d e r is f

in a l a n d a p p e a la b le ,

we have found no rule, statute, or case law that would g ive the county court jurisdiction to take any
action afte r the case was rema nded, much less the authority to act near ly nine months afte r rema nd.

Fur ther, even assuming the county court had somehow reta ined jurisdiction to act in
the ca se following rema

nd, the trial cour

t would have lost its plenary power to gr ant a ne w trial or

to vacate, modify , corr ect, o r re fo rm t he judgme nt on Fe bruar y 6, thirty day s afte r the case was

The justice-cour

t rec ord in McG aughy did not include a final judgme nt. McG aughy v. 5 Lamm , No. 03-99-00643- CV, 2000 WL 147649, *1 (Tex

. App.—Austin Fe b. 10, 2000, no pet.) (not desig nated f

or publication).
3r e ma

n d e d

. S e e T e x. R. Ci v
. P. 3 2 9 b ( d ) ; La n e B a n k E q u ip

. Co

. v

. S

m it h S

. E q u ip

. , I n c

. , 1 0 S. W. 3 d 3 0 8 , 310 (Tex. 2000). I n this scena ri o , L indsey ’s motion to vacate the rema nd and reinstate the case , filed thirty -one d ay s l at er , would have been untimely and would have done nothing to extend the
court’s plenar

y power or the appellate timetables. See Tex. R. App. P. 26.1(a) ; Penny v. Shell Oil 6
Prods. Co. , 363 S.W .3d 694, 697 (Tex. App.—Houston [1s t Dist.] 2011, no pet.).

We theref ore dismiss this appeal for lack of jurisdiction.

__________________________________________ David Pury ear , J ustice

Be fore J ustices Pury ear , Goodwin, and F ield
Dismissed for Want of J urisdiction
Filed: Oc tober 16, 2014

T h e timely filing of a motion “see king a substantive chang e” to a judgme nt extends a 6 trial court’s jurisdiction “up to an additional seventy -five day s.” Lane Bank Equip. Co. v. Smith S. Equip., Inc. , 10 S.W .3d 308, 310, 313-14 (Tex. 2000). L indsey ’s motion to v ac at e and reinstate
sou gh t a s u b stantive chang e in the rema nd action and should be viewed as a motion for new trial
or to modify , corr ect, or

ref orm the rema

nd. See id

. at 313-14; In re Boke loh , 21 S.W .3d 784, 787 (Tex. App.—Houston [14t h Dist.] 2000, orig

. proce eding ) (“A timely and proper motion to reinstate extends the trial court ’s p l en ary power until thirty day s afte r the motion is overr uled either by a writ t en s igne d order or by opera tion of l aw.” ). I f i t had been t imely , the m otion would have been
overr uled as a matter of law on Marc h 25, the first business day afte r seventy -five day s from rema nd,
see Tex. R. Civ. P. 329b(c) , making L indsey ’s notice of appea l due by April 8 , n i n et y day s afte r rema nd, see Tex. R. App. P . 26.1(a)

. 4