TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00408-CV

Maxine Andrea Mendez, Appellant

v.

David W. F. Carr, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT

NO. 220,886-B, HONORABLE RICK MORRIS, JUDGE PRESIDING

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

Maxine Andrea Mendez appeals an annulment decree obtained by David W. F. Carr on April 10, 2007. Because Mendez's notice of appeal was not timely filed, this Court does not have jurisdiction over the appeal. Notice of appeal was due 30 days from the date of the decree. Tex. R. App. P. 26.1. Notice of appeal in this case was not filed until June 22, 2007. Mendez contends that she received late notice of the trial court's judgment on June 5, 2007. Late notice of judgment may be used to extend appellate filing deadlines. Tex. R. App. P. 4.2. However, in order to benefit from the extended deadlines for late notice of judgment, a party must first prove in the trial court, on sworn motion and notice, the date the party first received notice of the judgment. Tex. R. Civ. P. 306a.5. Such motion must be filed in the trial court within the court's plenary power counted from the date of actual notice. Grondona v. Sutton, 991 S.W.2d 90, 92 (Tex. App.--Austin 1998, pet. denied). No such motion has been filed in this case, and because more than 30 days have elapsed since the date of actual notice, the trial court no longer has plenary power. See Tex. R. Civ. P. 329b(d). Because the notice of appeal was not timely filed, this appeal is dismissed for want of jurisdiction.

Diane Henson, Justice

Before Chief Justice Law, Justices Waldrop and Henson

Dismissed for Want of Jurisdiction

Filed: September 26, 2007