                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


                                               §
 JIMMY LEE SWEED,
                                               §
                        Appellant,                             No. 08-16-00107-CV
                                               §
 v.                                                                Appeal from
                                               §
 JAY L. NYE, JAIME ESPARZA,                                    243rd District Court
 DISTRICT ATTORNEY OF EL PASO                  §
 COUNTY, TEXAS, EL PASO COUNTY                               of El Paso County, Texas
 DISTRICT ATTORNEY’S OFFICE,                   §
 THE STATE OF TEXAS, AND                                        (TC # 2005-5667)
 THE ATTORNEY GENERAL OFICE OF                 §
 THE STATE OF TEXAS,
                                               §
                        Appellees.
                                               §


                                 MEMORANDUM OPINION

        This appeal is before the Court on its own motion to determine whether it should be

dismissed for want of jurisdiction. This is the second appeal taken by Appellant from the same

judgment. Finding that there is no separately appealable order, we dismiss the appeal for want of

jurisdiction.

        The jurisdictional issue before us has made it necessary to review the publicly-available

records in cause number 2005-5667. An appellate court has the discretion to take judicial notice
on its own motion of adjudicative facts that are matters of public record. See TEX.R.EVID.

201(b), (c); see In re Estate of Hemsley, 460 S.W.3d 629, 638 (Tex.App.--El Paso 2014, pet.

denied). The trial court dismissed the case on March 25, 2013, and the records of the case do not

show that the trial court entered a written ruling on Appellant’s motion to reinstate.

Consequently, the motion to reinstate was overruled by operation of law on June 8, 2013. See

TEX.R.CIV.P. 165a(3). Appellant’s notice of appeal was due to be filed on June 23, 2013. See

26.1(a)(3)(notice of appeal must be filed within 90 days after the judgment is signed if any party

timely files a motion to reinstate under Rule 165a). Because Appellant did not file his notice of

appeal until March 18, 2016, we dismissed the appeal in cause number 08-16-00047-CV.1 See

Sweed v. Nye, No. 08-16-00047-CV, 2016 WL 1465123 (Tex.App.--El Paso April 13, 2016, no

pet. h.). After filing an untimely motion for rehearing, Appellant filed a second notice of appeal

in cause number 2005-5667. The notice of appeal indicates that Appellant is attempting to

challenge the trial court’s ruling on his motion to reinstate. On June 1, 2016, we gave Appellant

notice of our intent to dismiss the appeal for lack of jurisdiction, and he filed a response stating

that he is attempting to appeal the trial court’s failure to enter a written ruling on the motion to

reinstate.

         Appellant’s response reflects a misunderstanding of Rule 165a of the Texas Rules of

Civil Procedure. Under Rule 165a, a motion to reinstate is overruled by operation of law if it is

not decided by signed written order within seventy-five days after the judgment is signed. See

TEX.R.APP.P. 165a(3). Any challenge to the overruling of Appellant’s motion to reinstate had to

be raised in cause number 08-16-00047-CV, and the ruling is not separately appealable.



1
  We inaccurately stated in the opinion that Appellant filed his notice of appeal more than three years after the due
date. Appellant filed his notice of appeal almost three years after the trial court dismissed the case, and more than
thirty-two months after the deadline for filing notice of appeal.

                                                       -2-
Appellant is not entitled to a “second bite at the apple” by filing another notice of appeal. We

dismiss the appeal for want of jurisdiction.


August 24, 2016
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.




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