Opinion filed March 20, 2014




                                        In The


        Eleventh Court of Appeals
                                    __________

                               No. 11-14-00017-CV
                                   __________

     IN THE INTEREST OF F.M.W. AND A.J.W., CHILDREN

                     On Appeal from the 161st District Court
                              Ector County, Texas
                        Trial Court Cause No. B-134,623


                      MEMORANDUM OPINION
      Chelsie Chavez attempts to appeal an order in a suit affecting the parent-
child relationship. Chavez’s attorney filed a request in this court asking to be
allowed to “refile” the notice of appeal so that her client may go forward with an
appeal in this matter. Chavez’s attorney stated that she timely delivered a notice of
appeal to the district clerk’s office but that the district clerk’s office “does not even
show having any copies of the Notice of Appeal in their possession or on file.”
Upon filing Chavez’s request in this court, which we also deemed to be an
untimely original notice of appeal, the clerk of this court wrote the parties and
informed them that, pursuant to TEX. R. APP. P. 34.5(e), the parties may, by written
stipulation, deliver a copy of the lost notice of appeal to the trial court clerk for
inclusion in the clerk’s record. We requested that the parties file a response in this
court regarding any stipulation as to the filing of a lost notice of appeal. The
parties have responded, but they have not reached an agreement as to any
stipulation. We dismiss the appeal for want of jurisdiction pursuant to TEX. R.
APP. P. 42.3(a).
      Chavez’s position, as indicated in her response, is that the original notice of
appeal was accidentally lost or misplaced by someone in the district clerk’s office
and, inadvertently, was never filed. However, as indicated in the responses of both
parties, a stipulation on this matter could not be reached by the parties. Appellee
stated in his response that he “has still not received a copy of any alleged Notice of
Appeal” and that he “is unwilling to stipulate, agree, or otherwise concede that
Appellant ever filed a Notice of Appeal in this cause. Appellee is further unwilling
to stipulate that the Ector County District Clerk’s office lost a Notice of Appeal in
this cause.” We note also that the trial court denied Chavez’s motion to declare a
lost instrument.
      The documents on file in this case show that, on August 23, 2013, the trial
court signed the order from which Chavez attempts to appeal. Chavez timely filed
a motion for new trial on September 20, 2013. The notice of appeal was due to be
filed within ninety days after the order was signed: November 21, 2013. See TEX.
R. APP. P. 26.1(a)(1).    This court filed Chavez’s request/notice of appeal on
December 31, 2013, well after the deadline for filing a notice of appeal or a motion
for an extension of time to file a notice of appeal. See TEX. R. APP. P. 26.3.
Absent a timely notice of appeal, this court is without jurisdiction to consider this
appeal. See Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex.
                                          2
2005); Garza v. Hibernia Nat’l Bank, 227 S.W.3d 233 (Tex. App.—Houston [1st
Dist.] 2007, no pet.); see also Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.
1997).
      We dismiss this appeal for want of jurisdiction.


                                                   PER CURIAM


March 20, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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