
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-02-00678-CV


Erik Leonard, Appellant

v.

Greg Abbott, Attorney General of Texas; The Harris County-Houston Sports Authority;
Harris County; and the City of Houston, Appellees





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. GN201013, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



	On September 26, 2002, appellant Erik Leonard filed his notice of appeal from the
district court's dismissal of his lawsuit for lack of subject matter jurisdiction.  The district court
signed the order dismissing his suit in open court on June 6, 2002, at the conclusion of a hearing at
which he and appellees were present and presented argument.  Among the motions Leonard filed
following the dismissal were a motion for new hearing filed on July 10 and a motion to reinstate
filed on August 12.  On November 18, appellees (1) filed in this Court a motion to dismiss the appeal
for lack of jurisdiction, arguing that Leonard's notice of appeal was not timely filed, and a motion
for an anti-suit injunction that would require Leonard to obtain this Court's approval before filing
any further lawsuits against appellees.  Leonard has not responded to appellees' motions.  We will
grant appellees' motion to dismiss and overrule their motion for an anti-suit injunction.

	Unless a motion for new trial is timely filed, a trial court has plenary power to grant
a new trial or vacate, modify, correct, or reform its judgment for thirty days after the judgment is
signed.  Tex. R. Civ. P. 329b(d).  If a motion for new trial is timely filed, the court's plenary power
extends for thirty days after all such motions are overruled.  Id. 329b(e).  Timetables related to a trial
court's plenary powers begin on the date the judgment or order is signed, and the clerk of the court
"shall immediately give notice to the parties or their attorney of record by first class mail advising
that the judgment or order was signed."  Id. 306a(1), (3).  If a party neither receives such notice nor
"acquire[s] actual knowledge" within twenty days of the judgment's signing, the timetables begin
on the earlier of (1) the day he receives notice or acquires actual knowledge or (2) ninety days after
the judgment is signed.  Id. 306a(4).
	A party must file his notice of appeal within thirty days after the trial court's judgment
is signed unless any party timely files (1) a motion for new trial, (2) a motion to modify the
judgment, (3) a motion to reinstate under Rule 165a of the Rules of Civil Procedure, (2) or (4) a proper
request for findings of fact and conclusions of law, in which case the notice of appeal must be filed
within ninety days of the signing of the judgment.  Tex. R. App. P. 26.1(a). 
	Leonard contends that he did not have actual knowledge of the dismissal until July
11, (3) and thus his appellate timetables did not begin to run until that date.  However, at the hearing
on Leonard's motion to reinstate, the trial court stated that it had "a very vivid memory of signing
the order [dismissing the cause for lack of subject matter jurisdiction] in front of Mr. Leonard," and
found that Leonard had actual notice as of June 6.  Therefore, Leonard's notice of appeal or motions
serving to extend his appellate timetable were due on July 6; July 6 fell on a Saturday, thus extending
the deadline to the following Monday, July 8.  See Tex. R. Civ. P. 4.  It appears that none of
Leonard's motions was timely filed; Leonard's motion for a new hearing was untimely filed on July
10 and did not extend his time to file his notice of appeal.  Leonard's notice of appeal was not filed
until September 26, more than two months after it was due and more than twenty days after it would
have been due even if Leonard had timely filed a motion that extended his appellate timetables. (4)
	Leonard did not timely perfect his appeal and we are therefore without jurisdiction
to consider it.  See Flores v. Citizens State Bank, 954 S.W.2d 78, 79 (Tex. App.--San Antonio 1997,
no writ).  We dismiss the appeal for want of jurisdiction.  Tex. R. App. P. 42.3(a).

					__________________________________________
					Mack Kidd, Justice
Before Justices Kidd, B. A. Smith and Yeakel
Dismissed for Want of Jurisdiction
Filed:   December 12, 2002
Do Not Publish
1.   This appeal was originally filed in the name of the previous attorney general of Texas.  We
have substituted the current attorney general of Texas.
2.   Rule 165a governs dismissal for want of prosecution and allows a party to move to reinstate
a cause so dismissed within thirty days of the dismissal or the time period provided by Rule 306a. 
Tex. R. Civ. P. 165a(3).  Leonard filed a motion to reinstate, but, as discussed, supra, it was not
timely filed.  Further, his cause was dismissed for lack of subject matter jurisdiction, not for want
of prosecution, and therefore the motion did not extend his appellate timetable under Rule 165a.
3.   It is unclear how Leonard knew to file a motion for a new hearing on July 10 when he
claims to not have acquired actual knowledge of the dismissal until July 11.
4.   An appellate court may extend the time to file a notice of appeal if, within fifteen days after
the deadline, the party files a motion for an extension of time in the appellate court.  Tex. R. App.
P. 10.5(b), 26.3.  Leonard did not file his notice of appeal within fifteen days after it was due, nor
did he file a motion for extension of time.
