DISMISS and Opinion Filed October 15, 2013.




                                           S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                         No. 05-13-01218-CV

                              WALTER CARTER, JR., Appellant
                                          V.
                               CITY OF GARLAND, Appellee

                       On Appeal from the 44th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-12-01405-B

                              MEMORANDUM OPINION
                         Before Justices O’Neill, Lang-Miers, and Evans
                                    Opinion by Justice Evans
       Before the Court is appellee’s motion to dismiss the appeal. Appellee contends the

appeal should be dismissed because appellant’s notice of appeal was untimely filed. Appellant

did not file a response to the motion.

       A notice of appeal is due thirty days after the date the judgment is signed. See TEX. R.

APP. P. 26.1. If a party files a post-judgment motion extending the appellate timetable, a notice

of appeal is due ninety days after the date the judgment is signed. See TEX. R. APP. P. 26.1(a).

Without a timely filed notice of appeal, this Court lacks jurisdiction. TEX. R. APP. P. 25.1(b).
           The trial court signed the judgment on May 3, 2013. Appellant filed a timely motion to

reinstate the case. 1 Accordingly, the notice of appeal was due on August 1, 2013. Appellant

filed his notice of appeal on August 30, 2013, twenty-nine days past the due date. In his notice

of appeal, appellant states that he is appealing the order signed on August 1, 2013. The trial

court’s August 1, 2013 order simply denied appellant’s motion to reinstate. The appellate

timetable runs from the date the judgment is signed, not from the date an order denying a post-

judgment motion is signed. See TEX. R. APP. P. 26.1.

           Because appellant did not timely file his notice of appeal, this Court lacks jurisdiction.

Accordingly, we grant appellee’s motion and dismiss the appeal. See TEX. R. APP. P. 42.3(a).




                                                                               /David Evans/
                                                                               DAVID EVANS
                                                                               JUSTICE

131218F.P05




     1
       We recognize the trial court granted summary judgment and did not dismiss the case for want of prosecution. Thus, a motion for new trial
would have been the more appropriate motion to file. See Howlett v. Tarrant Cnty., 301 S.W.3d 840, 843 (Tex. App.—Fort Worth 2009, pet.
denied). However, under the language of rule of appellate procedure 26.1(a), the filing of a motion to reinstate that meets the requirements of
rule 165a will extend the deadline to file a notice of appeal, even if the trial court did not dismiss the underlying case for want of prosecution. Id.;
see TEX. R. APP. P. 26.1(a).



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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

WALTER CARTER, JR., Appellant                      On Appeal from the 44th Judicial District
                                                   Court, Dallas County, Texas.
No. 05-13-01218-CV        V.                       Trial Court Cause No. DC-12-01405-B.
                                                   Opinion delivered by Justice Evans.
CITY OF GARLAND, Appellee                          Justices O’Neill and Lang-Miers,
                                                   participating.

       In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

       It is ORDERED that appellee, CITY OF GARLAND, recover its costs of this appeal
from appellant, WALTER CARTER, JR..


Judgment entered this 15th day of October, 2013.




                                                   /David Evans/
                                                   DAVID EVANS
                                                   JUSTICE




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