                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-11-00188-CV


IN THE INTEREST OF T.T.R., A
MINOR CHILD




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          FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

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                         MEMORANDUM OPINION1
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      Appellant Father attempts to appeal from the trial court’s February 14,

2011 order terminating his parental rights to T.T.R.

      Father’s notice of appeal was due March 7, 2011, but he filed it on May 27,

2011. See Tex. R. App. P. 26.1(b) (stating that in an accelerated appeal, the

notice of appeal must be filed within twenty days after the judgment or order is

signed). On June 1, 2011, we sent our first letter to Father informing him of our

concern that we may not have jurisdiction because his notice of appeal appeared


      1
       See Tex. R. App. P. 47.4.
to be untimely. In response to this letter, Father sent an amended notice of

appeal and asked us to consider his appeal as a restricted appeal, arguing that

he did not participate in the hearing that resulted in the judgment complained of

and that he filed his motion for new trial on March 18, 2011, when it was due on

March 16, 2011, making it untimely. See Tex. R. App. P. 30 (stating that a party

who did not participate in the hearing that resulted in the judgment complained of

and who did not timely file a postjudgment motion or a notice of appeal within the

time permitted by rule 26.1(a) may file a notice of appeal within the time

permitted by rule 26.1(c)). We continued the appeal as a restricted appeal.

      On July 22, 2011, the clerk’s record was filed in this case. It shows that

Father placed his motion for new trial into the prison mail system on March 16,

2011, and that the prison mail system put the motion into the United States

Postal Service mail on March 16, 2011.       We sent Father and his pro bono

counsel another letter, informing them of our renewed concern that we may not

have jurisdiction. See Tex. R. App. P. 26.1(b), 28.1(b), 30; In re K.A.F., 160

S.W.3d 923, 924 (Tex.) (stating that postjudgment motions do not extend the

appellate deadline for filing an accelerated appeal), cert. denied, 546 U.S. 961

(2005). We informed them that unless Father or any party desiring to continue

the appeal filed with this court, on or before August 11, 2011, a response

showing grounds for continuing the appeal, the appeal may be dismissed for

want of jurisdiction.

      Father and his pro bono counsel each responded to our letter, but neither

response shows grounds for continuing the appeal as a restricted appeal. That
                                    2
is, because Father’s motion for new trial went out of the prison system on March

16, 2011, through United States mail, it is considered filed on March 16, 2011,

and not March 18, 2011.2 See Tex. R. Civ. P. 5 (stating that if a document is

sent to the proper clerk by first-class United States mail with an envelope that is

properly addressed and stamped and then deposited in the mail on or before the

last day for filing it, if received by the clerk not more than ten days late, it shall be

filed by the clerk and be deemed filed in time); see also Tex. R. App. P.

9.2(b)(1)(A)–(C) (stating same “mailbox rule”). Under the mailbox rule, Father’s

motion for new trial was timely filed. See Tex. R. Civ. P. 5; Tex. R. App. P.

9.2(b)(1)(A)–(C). Because Father timely filed a postjudgment motion, he cannot

bring a restricted appeal. See Tex. R. App. P. 30 (requiring that the appellant fail

to timely file a postjudgment motion). And because this case cannot be brought

as a restricted appeal and Father’s notice of appeal was untimely, this court lacks

jurisdiction. See Tex. R. App. P. 28.1(b) (stating that filing a motion for new trial

will not extend to the time to perfect an accelerated appeal).           Therefore, we

dismiss the appeal for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).


                                                      PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and MEIER, J.

DELIVERED: September 15, 2011




      2
       Father acknowledges this in his response to our second letter.

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