                                  COURT OF APPEALS FOR THE
                            FIRST DISTRICT OF TEXAS AT HOUSTON

                                              ORDER


Appellate case name        Donald Young, Doris Young, and Donna Holcomb v. Chris Di
                           Ferrante

Appellate case number:     01-12-00678-CV

Trial court case number: CV0052700C

Trial court:               County Court at Law No 3 of Galveston County

        Appellants, Donald Young, Doris Young, and Donna Holcomb, have filed a "Motion to
Review Trial Court’s Decision Sustaining Contest Pursuant to [Texas Rule of Appellate
Procedure] 20.1(J)(1) Outside the Time Allotted for a Hearing and Without Conducting a
Hearing." Appellee has filed a response, asserting that the Court lacks jurisdiction over the
appeal.
       Generally, a notice of appeal is due within thirty days after the judgment is signed. See
TEX. R. APP P 26.1 The deadline to file a notice of appeal as extended to 90 days after the date
the judgment as signed if any party timely files a motion for new trial, motion to modify the
judgment, motion to reinstate, or, under certain circumstances, a request for findings of fact and
conclusions oflaw.See TEX. R. App. P. 26.1(a). To be considered timely, a motion for new trial
must be filed within 30 days after the judgment is signed. TEX. R. CIv. P 329b(a).
       The record reflects that the trial court signed the final judgment on April 11, 2012. A
motion for new trial was due by May 11, 2012. See id. The parties dispute whether a motion for
new trial was timely filed.
       Appellants assert that their motion for new trial was timely filed under Rule of Appellate
Procedure 9.2 See TEX. R. App. P 9.2 ("the mailbox rule"). Under Rule 9.2(b), a document
received within 10 days after the filing deadline is considered timely if it was sent to the proper
clerk by United States Postal Service first-class, express, registered, or certified mail, and it was
deposited in the mail on or be bre the last day for filing. See id. A legible postmark affixed by
the United States Postal Service is conclusive proof of the date of mailing. See id.
        Although the clerk’s record-in this appeal does not contain a copy of the envelope in
which appellants assert they mailed their motion for new trial, appellants request that the Court
take judicial notice of the copy of the envelope contained In the clerk’s record filed in this Court
in the companion appeal, 01-12-00679-CV. Appellants assert that their motions for new trial in
both this appeal and the companion appeal were mailed together in the same envelope and that
the envelope was apparently only copied into the clerk’s record in the companion appeal
        We may take judicial notice of our own records involving the same parties and same
subject matter. See Office of Pub. Util. Counsel v. Pub. Util. Com’n of Tex., 878 S.W.2d 598, 600
(Tex. 1994) (holding that court of appeals has power to take judicial notice for first time on
appeal); Douglas v. Am. Title, 196 S.W.3d 876, 878 n.l(Tex. App.--Houston [lst Dist.-] 2006,
no pet.); Davis v. State, 293 S.W.3d 794, 798 n.1 (Tex. App.----Waco 2009, no pet.). ("An
appellate court may take judicial notice of Its own records in the same orrelated proceedings
involving the same or nearly the same parties.")). The Court takes judicial notice of the envelope
an the clerk’s record on file in this Court in cause number 01-12-00679-CV, as requested.
       The clerk’s record contains a motion for new trial and an envelope addressed to the
Galveston County Clerk, clearly bearing a United States Postal Service postmark of May 11,
2012 and reflecting that the envelope was mailed first-class. See TEX. R. App. P. 9.2. The
Galveston County Clerk file-stamped the envelope on May 15, 2012, which reflects that it was
received within 10 days after the filing deadline. See id. We conclude that appellants’ motion
for new trial was timely filed.
        Because appellants’ motion for new trial was timely filed, their notice of appeal was due
by July 10, 2012. See TEX. R. APp. P 26 l(a). Appellants filed their notice of appeal on July 13,
2012. A motion for extension of time as necessarily implied when an appellant, acting in good
faith, files a notice of appeal beyond the time allowed by rule 26.1, but within the 15-day
extension period provided by Rule 26.3 See TEX. R. App. P 26.1, 26.3; Verburgt v. Dorner, 959
S.W.2d 615,617-18 (Tex. 1997). Therefore, the Court concludes that it has jurisdiction over the
appeal.
        On July 13, 2012, appellants, Donald Young, Doris Young, and Donna Holcomb, each
filed an affidavit of indigence an the trial court in the above-referenced appeal. Contests were
timely filed. See TEX. R. App. P 20.1 (e). Within 10 days after a contest was filed, the trial court
was required either to conduct a hearing or to s gn an order extending the time (no more than 20
days) to conduct the hearing, and to sign an order within the t me prescribed for the hearing. See
TEX. R. APP P 20.1(i)(2)-(4). The clerk’s record does not reflect that the trial court timely
conducted a hearing, signed an order extending the tame to conduct the hearing, or ruled on the
contest within the period prescribed. See id. The clerk’s record reflects that the trial court
cancelled the hearing. Therefore, the allegations in the affidavits are deemed true, and appellants
are entitled to proceed on appeal without advance payment of costs. TEX. R. APp. P 20.1(i)(4)
       The Clerk of this Court IS ORDERED to make an entry in this Court’s records that
appellants are indigent and are allowed to proceed on appeal without advance payment of costs.
       The clerk’s record has been filed.
        It is ORDERED that the court reporter file with this Court, within 30 days of the date of
this order and at no cost to appellants, the reporter’s record  the appeal, or file an information
sheet certifying that none exists. See TEX. R. APp. P 20.1 (k).

Judge’s signature:/s/Jane Bland
                  1--¢1 Acting individually   [] Acting for the Court
Date: November 13, 2012
