      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00367-CV



                          Reginald I. Bailey a/k/a Ray Hill, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
      NO. D-1-GN-07-000300, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Reginald I. Bailey, a/k/a Ray Hill, is an inmate at the Texas Department

of Criminal Justice, Institutional Division and seeks to appeal from a district court order dismissing

his lawsuit with prejudice for failure to comply with chapter 14 of the civil practice and remedies

code. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001-.014 (West 2002) (establishing procedural

requirements for inmate litigation). The State of Texas has informed this Court that it believes

Bailey’s appeal to be untimely; therefore, the State will not be filing a brief in this matter. Because

we conclude that Bailey’s notice of appeal was untimely and he has not satisfied the prerequisites

for a restricted appeal, we dismiss the appeal for lack of jurisdiction.

               The order dismissing Bailey’s case was signed and entered by the district court on

December 6, 2007. Bailey did not file any post-judgment motions that would extend the deadline

for perfecting an appeal. See Tex. R. App. P. 26.1(a). Thus, Bailey’s notice of appeal was due on
or before January 7, 2008, or 30 days after the district court’s order was signed.1 See id. Bailey filed

his notice of appeal with this Court on June 2, 2008, almost six months after the district court’s order

was signed.2 We therefore agree with the State that Bailey’s notice of appeal was untimely, but this

does not end our inquiry.

               Although Bailey’s notice of appeal was not filed within the requisite 30-day deadline,

Rule 26.1 of the rules of appellate procedure allows for a restricted appeal when the appellant’s

notice of appeal is filed within six months after the judgment or order appealed from is signed. See

id. 26.1(c). Because Bailey filed his notice of appeal within the six-month time period specified in

Rule 26.1(c), we consider whether Bailey has satisfied the requirements for a restricted appeal.

               Restricted appeals are governed by Rule 30 of the Texas Rules of Appellate

Procedure. Id. 30. Rule 30 provides in relevant part:


       A party who did not participate—either in person or through counsel—in the hearing
       that resulted in the judgment complained of and who did not timely file a
       postjudgment motion or request for findings of fact and conclusions of law, 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).




       1
          The 30-day deadline for perfecting an appeal would actually be January 5, 2008. Because
the 5th of January fell on a Saturday, Bailey’s notice of appeal was required to be filed on the next
business day, or Monday, January 7, 2008. See Tex. R. App. P. 4.1(b).
        2
           Because Bailey’s notice of appeal was filed after the period for granting an extension of
time under Rule 26.3 had passed, we cannot imply a motion for extension of time, and Bailey’s
notice of appeal is insufficient to invoke this Court’s jurisdiction. See Tex. R. App. P. 26.3
(formerly Tex. R. App. P. 41.(a)(2)); Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997)
(implying motion for extension of time under former Tex. R. App. P. 41(a)(2) when notice of appeal
filed after 30-day deadline, but within time period allowed for extension).

                                                   2
Id. A restricted appeal is available for the limited purpose of providing a non-participating

party an opportunity to correct an erroneous judgment. Clopton v. Pak, 66 S.W.3d 513, 516

(Tex. App.—Fort Worth 2001, pet. denied). It does not allow a participating party who suffers

an adverse judgment another opportunity to have the merits of his case reviewed. Id. A restricted

appeal is available to Bailey only if he: (1) filed his notice of appeal within six months of the district

court’s order; (2) was a party to the underlying suit; (3) did not participate in the dismissal hearing;

and (3) can demonstrate error apparent on the face of the record. See Tex. R. App. P. 30; Gold

v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (discussing requirements for restricted appeal under

Rule 30); see also Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999)

(discussing requirements for writ of error appeal under former Tex. R. App. P. 45).3

                 Although Bailey satisfies the first two of these requirements, he fails to satisfy the

third. Bailey filed his notice of appeal within six months of the district court’s order of dismissal,

and he was a party to the underlying suit. However, the record reflects that Bailey filed the

underlying petition as well as various pleadings responding to the State’s motion to dismiss in

the district court. The record further demonstrates that the district court held a hearing on the

State’s motion to dismiss on December 6, 2007, and that Bailey participated in the dismissal hearing

via telephone.

                 In determining whether the non-participation requirement of Rule 30 is met, the

question before us is whether Bailey participated in the “decision-making event” that resulted in the




        3
         Restricted appeals replaced writ of error appeals under former Rule 45 of the Texas Rules
of Appellate Procedure. See Tex. R. App. P. 30.

                                                    3
district court’s judgment. See Withem v. Underwood, 922 S.W.2d 956, 957 (Tex. 1996) (discussing

the non-participation requirement under former Tex. R. App. P. 45); Texaco, Inc. v. Central Power

& Light Co., 925 S.W.2d 586, 589 (Tex. 1996) (same). According to the supreme court,

participation means:


       taking part in a . . . “hearing in open court, leading up to the rendition of judgment,
       on the questions of law, if the case is disposed of on the questions of law, or on the
       questions of fact, if the final judgment is rendered on the facts. The statute was
       intended to cut off the right of appeal by writ of error of those who participate in the
       hearing in open court in the trial that leads to final judgment.”


Withem, 922 S.W.2d at 957 (quoting Lawyers Lloyds of Texas v. Webb, 152 S.W.2d 1096, 1097-98

(Tex. 1941)).

                Bailey does not dispute that he participated via telephone in the dismissal hearing

held by the district court on December 6, 2007. Nor does he dispute that he filed pleadings in

response to the State’s motion to dismiss. On this record, we conclude that Bailey participated in

the decision-making event that led to the district court’s order of dismissal. We also conclude that

Bailey participated within the meaning of Rule 30 and, therefore, does not satisfy the requirements

for a restricted appeal. See Tex. R. App. P. 30; see Texaco, Inc., 925 S.W.2d at 589 (discussing what

it means to “participate” within meaning of former Tex. R. App. P. 45); Diferrante v. Keraga, 976

S.W.2d 683, 685 (Tex. App.—Houston [1st Dist.] 1997, no writ) (same).

                Because Bailey’s notice of appeal was untimely and he does not satisfy the

requirements of a restricted appeal, this Court lacks jurisdiction. See Tex. R. App. P. 26.1; 30;

Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997) (“[O]nce the period for granting a motion



                                                  4
for extension of time under [former] Rule 41(a)(2) has passed, a party can no longer invoke the

appellate court’s jurisdiction.”); Clopton, 66 S.W.3d at 515 (requirements for restricted appeal “are

jurisdictional and will cut off a party’s right to seek relief . . . if they are not met”). Accordingly, we

dismiss the appeal for lack of jurisdiction.




                                                 Jan P. Patterson, Justice

Before Justices Patterson, Waldrop and Henson

Dismissed for Want of Jurisdiction

Filed: December 12, 2008




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