                             NUMBER 13-20-00174-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG
____________________________________________________________

              IN THE INTEREST OF J.R.M., A CHILD
____________________________________________________________

             On appeal from the 347th District Court
                   of Nueces County, Texas.
____________________________________________________________

                          MEMORANDUM OPINION
 Before Chief Justice Contreras and Justices Longoria and Hinojosa
             Memorandum Opinion by Justice Hinojosa

      Appellant Jose Luis Montes Jr., proceeding pro se, attempts to appeal from the

trial court's “Order in Suit for Modification of Support Order and to Confirm Support

Arrearage” which was signed on August 1, 2019. Appellant filed a notice of restricted

appeal on March 27, 2020.

      Generally, a notice of appeal is due within thirty days after the final judgment is

signed. See TEX. R. APP. P. 26.1. The deadline to file a notice of appeal is extended to

ninety days after the date the judgment is signed if, within thirty days after the judgment
is signed, any party timely files a motion for new trial, motion to modify the judgment,

motion to reinstate, or, under certain circumstances, a request for findings of fact and

conclusions of law. See id. R. 26.1(a); TEX. R. CIV. P. 329b(a), (g). The time to file a notice

of appeal may also be extended if, within fifteen days after the deadline to file the notice

of appeal, a party properly files a motion for extension. See TEX. R. APP. P. 10.5(b), 26.3.

       To qualify for a restricted appeal, an appellant must establish that: (1) he filed the

notice of restricted appeal within six months after the judgment or order appealed from

was signed; (2) he was a party to the underlying suit; (3) he did not timely file a post-

judgment motion or request for findings of fact and conclusions of law, or notice of appeal;

(4) he did not participate, either in person or through counsel, in the hearing that resulted

in the judgment complained of; and (5) the trial court erred and the error is apparent from

the face of the record. See id. R. 26.1(c), 30; Eguia v. Eguia, 367 S.W.3d 455, 458 (Tex.

App.—Corpus Christi–Edinburg 2012, no pet.). Here, appellant’s notice of restricted

appeal was filed on March 27, 2020, fifty-five days past the restricted-appeal deadline of

February 3, 2020, the Monday following the expiration of sixth months from the August 1,

2020 order. See Tex. R. App. P. 4.1(a), 26.1(c), 30. Appellant has failed to comply with

the first requirement for a restricted appeal because he did not timely file a notice of

restricted appeal within six months of the challenged order. Without a timely filed notice

of appeal, this Court lacks jurisdiction over this appeal. See TEX. R. APP. P. 25.1, 26.1(c).

       On April 7, 2020, the Clerk of this Court notified appellant that it appeared that the

appeal was not timely perfected. Appellant was advised that the appeal would be

dismissed if the defect was not corrected within ten days from the date of receipt of the


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Court’s directive. See id. R. 42.3(a), (c). Appellant filed a “Motion to Proceed with Out of

Time Restricted Appeal” on April 21, 2020.

       It is “well settled” that “appellate jurisdiction cannot be created by consent,

stipulation of the parties, or waiver, either by the court or by the litigants.” Welder v. Fritz,

750 S.W.2d 930, 932 (Tex. App.—Corpus Christi–Edinburg 1988, no writ); see Stine v.

State, 908 S.W.2d 429 (Tex. 1995) (“It is . . . fundamental that the parties of a suit can

neither confer nor waive jurisdiction by agreement or consent.”). An appellate court does

not have the authority “to alter the time for perfecting an appeal in a civil case.” TEX. R.

APP. P. 2. Therefore, appellant’s motion to extend the appellate deadlines is DENIED.

       Appellant’s notice of appeal does not demonstrate this Court’s jurisdiction over his

untimely restricted appeal. See id. R. 26.1(c). Accordingly, we dismiss this appeal for

want of jurisdiction. See id. R. 42.3(a); 43.2(f).



                                                                   LETICIA HINOJOSA
                                                                   Justice


Delivered and filed the
30th day of April, 2020.




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