






In the Interest of ALB, a Minor Child















IN THE
TENTH COURT OF APPEALS
 

No. 10-01-198-CV

IN THE INTEREST OF A.L.B., A MINOR CHILD

 

From the 361st District Court
Brazos County, Texas
Trial Court # 7914-361
                                                                                                                
                                                                                                         
MEMORANDUM OPINION
                                                                                                                

      Sena Maffet appeals from an order terminating her parental rights.  The notice of appeal was
filed by Maffet in this Court on June 26, 2001.  The notice is dated June 20.  Maffet states in the
notice that she seeks to appeal a judgment signed on March 6, 2001.  She gives no explanation for
the untimeliness of the notice of appeal.  We dismiss the appeal for want of jurisdiction.
      See Verburgt v. Dorner, 959 S.W.2d 615, 617-18 (Tex. 1997)
(construing the predecessor to Rule 26); McCaskell v. The Methodist Hosp., 856 S.W.2d 519, 521
(Tex. App.—Houston [1st Dist.] 1993, no writ); see also Fowler v. State, 16 S.W.3d 426, 428
(Tex. App.—Waco 2000, pet. filed) (citing Slaton v. State, 981 S.W.2d 208, 209 (Tex. Crim.
App. 1998); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996)).  If an appeal is not
timely perfected, a court of appeals does not obtain jurisdiction to address the merits of the appeal
and can take no action other than to dismiss the appeal.  Id.
 

From the 19th District Court
McLennan County, Texas
Trial Court # 99-2245-1
                                                                                                                
                                                                                                         
O P I N I O N
                                                                                                                

      This is a restricted appeal.  Jimmie Campbell and Michael Fincher were involved in a traffic
accident in McLennan County, Texas.  Fincher sued Campbell.  Campbell did not file an answer. 
The trial court entered a default judgment against Campbell.  Almost four months later, Campbell
filed a notice of appeal alleging that neither he nor counsel participated in the hearing that resulted
in the judgment.  We affirm.
Restricted Appeal
      The restricted appeal replaced the former writ of error practice when the Supreme Court
adopted the current appellate rules in 1997.  See Tex. R. App. P. 30; Taylor v. Taylor, 63 S.W.3d
93, 96 (Tex. App.—Waco 2001, no pet.).  A restricted appeal is available for the limited purpose
of providing a party that did not participate at trial with the opportunity to correct an erroneous
judgment.  In re E.K.N., 24 S.W.3d 586, 590 (Tex. App.—Fort Worth 2000, no pet.).  A direct
attack on a judgment by a restricted appeal must: (1) be brought within 6 months after the
judgment is signed; (2) by a party to the suit; (3) who did not participate at trial; and (4) the error
complained of must be apparent from the face of the record.  See Norman Communications v.
Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); E.K.N., 24 S.W.3d at 590.  There is no
question that Campbell satisfied the first three requirements for a restricted appeal.  The question
is whether Campbell demonstrated error on the face of the record that affected the validity of the
judgment.  See Mobil Exploration & Producing U.S. Inc. v. McDonald, 810 S.W.2d 887, 890
(Tex. App.—Beaumont 1991, writ denied).
Alleged Error
      As to this requirement, Campbell only contends that, because the District Clerk did not send
him notice of the judgment as required by Rule 239a of the Texas Rules of Civil Procedure, error
is apparent on the face of the record.
  Rule 239a is designed as an administrative convenience for
the parties, and failure to give notice of the entry of a default judgment does not constitute
reversible error.  Norman Communications v. Texas Eastman Co., 956 S.W.2d 68, 69 (Tex.
App.—Tyler 1997), rev’d on other grounds, 955 S.W.2d 159 (Tex. 1997); Long v. McDermott,
813 S.W.2d 622, 624 (Tex. App.—Houston [1st Dist.] 1991, no writ); Bloom v. Bloom, 767
S.W.2d 463, 468 (Tex. App.—San Antonio 1989, writ denied); City of Houston v. Arney, 680
S.W.2d 867, 873 (Tex. App.—Houston [1st Dist.] 1984, no writ); Grayson Fire Extinguisher Co.
v. Jackson, 566 S.W.2d 321, 322 (Tex. Civ. App.—Dallas 1978, writ ref'd n.r.e.).  Campbell
argues that these cases should not be followed because: 1) Rule 239a notice is more akin to the
notice requirements of the dismissals of causes; and 2) to pursue a bill of review would be unfair
to him because the burden of proof is higher.  We are not persuaded.
      Essentially, Campbell seeks to reverse a judgment which appears valid on the face of the
record because of something occurring after the judgment was rendered–the failure of the clerk
to send notice of the judgment.  This he cannot do in a restricted appeal.  See Long, 813 S.W.2d
at 624.  To permit Campbell to succeed on this issue would be rewarding him for not appearing
or participating, for whatever reason, in the trial proceeding.  See Flores v. H.E. Butt Grocery
Co., 802 S.W.2d 53, 55 (Tex. App.—Corpus Christi 1990, no writ.).  Campbell’s remedy, if any,
for the clerk’s failure to send notice of the judgment lies in a bill of review, not a restricted appeal.
Conclusion
      Campbell’s issue is overruled, and the judgment is affirmed.
 
                                                                         TOM GRAY
                                                                         Justice
Before Chief Justice Davis,
      Justice Vance, and
      Justice Gray
Affirmed
Opinion delivered and filed February 27, 2002
Publish
[CV06]
