Appeal Reinstated, Motions Disposed, and Order filed May 23, 2019




                                       In The

                     Fourteenth Court of Appeals
                                   ____________

                               NO. 14-19-00056-CV
                                   ____________

                         FRANCO GAMBOA, Appellant

                                         V.

                     LIZETTE NOEMI ALECIO, Appellee


                    On Appeal from the 310th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2018-26302

                            ABATEMENT ORDER

      This appeal is from a judgment signed October 17, 2018. The notice of appeal
indicates it was deposited in the prison mail on January 7, 2019. The district clerk
filed the notice of appeal on January 16, 2019. On February 21, 2019, we abated this
appeal for the trial court to determine when appellant first either received notice or
acquired actual knowledge that the judgment was signed.
      The trial court signed an order finding that appellant acquired actual
knowledge of the judgment on January 7, 2019. That order has been filed in a
supplemental clerk’s record.

      While the case was abated, appellant, who is proceeding pro se, filed two
motions. On April 1, he moved to extend time to file his brief. On April 29, he moved
to dismiss his appeal. The motion to dismiss states in relevant part:

      [Appellant] has already filed a motion to have the court demonstrate
      actual notice was given and if not to re-open the time for filing notice
      of appeal. As such this appeal is without jurisdiction and [appellant]
      asks that the court dismiss without prejudice pending refiling.
      We may not dismiss an appeal “without prejudice to refiling.” Voluntary
dismissal under Texas Rule of Appellate Procedure 42.1 is final. Given that appellant
filed a motion to extend time to file his brief, we believe appellant did not understand
that dismissal would be with prejudice.

      Accordingly, we REINSTATE the appeal, GRANT appellant’s motion to
extend time to file his brief, and DENY his motion to dismiss. If appellant desires to
have his appeal finally and permanently dismissed, he may file another motion to
dismiss.

      Subject to any extensions he may be granted, appellant’s brief is due 30 days
from the date of this order.



                                    PER CURIAM



Panel consists of Justices Christopher, Hassan, and Poissant.




                                           2
