                                                                                       ACCEPTED
                                                                                   03-17-00848-CV
                                                                                         21548416
                                                                         THIRD COURT OF APPEALS
                                                                                   AUSTIN, TEXAS
                                                                                 1/2/2018 11:21 AM
                                                                                 JEFFREY D. KYLE
                                                                                            CLERK
                    CAUSE NO. 03-17-00848-CV
__________________________________________________________________
                                                                   FILED IN
                                                            3rd COURT OF APPEALS
                     IN THE COURT OF APPEALS                    AUSTIN, TEXAS
            FOR THE THIRD DISTRICT OF TEXAS AT             AUSTIN
                                                            1/2/2018 11:21:51 AM
                                                              JEFFREY D. KYLE
                                                                    Clerk


                                VAUGHN YOUNG,
                                   Appellant,

                                          V.

                         DEPARTMENT OF FAMILY
                        AND PROTECTIVE SERVICES,
                                Appellee.


 On Appeal from the 126th Judicial District Court of Travis County, Texas;
     Cause No. D-1-GN-14-004232; Before the Honorable Scott Jenkins
__________________________________________________________________

         APPELLEE’S OPPOSED MOTION TO DISMISS APPEAL


TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

      COMES NOW THE Texas Department of Family and Protective Services

(“Department”) and files its Motion to Dismiss Appeal because the Court lacks

subject-matter jurisdiction over this case.

                                I.     BACKGROUND

      Young filed a suit for judicial review of an agency order that her name be

placed on the Employee Misconduct Registry. The Department filed a Plea to the
Jurisdiction, alleging two bases: Young’s failure to serve the Department for two

years, and her failure to file a motion for rehearing of the administrative order.

Young never responded to the Plea to the Jurisdiction.           In May of 2017,

approximately three months before the hearing on the Department’s Plea to the

Jurisdiction, the trial court granted the Department’s Motion to Show Authority and

removed Young’s attorney from representing her in this cause.        The trial court

granted the Plea on August 15, 2017, and dismissed Young’s lawsuit for lack of

subject matter jurisdiction. While no testimony was taken during the hearing for the

Department’s Plea, attached to the Plea was copious documentation illustrating the

lack of due diligence in having the Department served.

      Young next filed a Motion for New Trial on August 29, 2017, which extended

the appellate deadline to November 13, 2017. Young filed her Notice of Appeal on

December 14, 2017. To date, Young has not filed a Motion to Extend Time to file

her Notice of Appeal.

                           II.    MOTION TO DISMISS

   A. Young’s appeal is untimely and should be dismissed.

      “An appeal is perfected when a written notice of appeal is filed with the trial

court clerk.” Tex. R. App. P. 25.1(a). Appeals in Texas are to be filed within thirty

days of the final judgment absent the filing of post-judgment pleadings as specified

in the Texas Rules of Appellate Procedure. Tex. R. App. P. 26.1. In Young’s case,



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that deadline was extended to ninety days because Young filed a Motion for New

Trial. Tex. R. App. P. 26.1(a).

      Moreover, there are other appellate rules which address this issue. For

example, while an appellate court can “suspend a rule's operation in a particular case

and order a different procedure . . . a court must not construe this rule to . . . alter

the time for perfecting an appeal in a civil case. (Emphasis added). To paraphrase,

an appellate court cannot change the appellate deadline absent some provision in the

Texas Rules of Appellate Procedure.

      Additionally, under certain circumstances, the appellate court can dismiss an

appeal “because the appellant has failed to comply with a requirement of these rules,

a court order . . .” Tex. R. App. P. 42.3(c).

   B. Absent a timely filed motion to extend the appellate deadline, the Court
      lacks jurisdiction to hear this appeal.

      The Order on Defendant’s Plea to the Jurisdiction was granted on August 15,

2017, dismissing Young’s case. Because Young filed a Motion for New Trial, the

appellate deadline became November 13, 2017. Young missed that deadline, leaving

this Court without jurisdiction. Wade v. Harris Cty., No. 01-15-00155-CV, 2016

Tex. App. LEXIS 7224 at *2 (Tex. App.—Houston [1st Dist.] July 7, 2016, pet.

denied) (“A party who wishes to appeal to this court generally must file a notice of

appeal within 30 days after the trial court signs its judgment or within 90 days if any

party files a motion for new trial. Tex. R. App. P. 26.1. These deadlines are

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jurisdictional.”); Brown Mech. Servs. v. Mountbatten Sur. Co., 377 S.W.3d 40, 42–

43 (Tex. App.—Houston [1st Dist.] 2012, no pet.); Campbell v. Wells Fargo Home

Mortg., No. 03-10-00481-CV, 2010 Tex. App. LEXIS 9782 at *3 (Tex. App.—

Austin, Dec. 10, 2010, no pet.) (“Because the Campbells did not timely perfect their

appeal, we must dismiss their appeal for want of subject-matter jurisdiction.”).

      If Young had filed a motion to extend time to file her appeal within the next

fifteen days, or by November 28, 2017, the appellate court could have granted the

motion and her appeal would then have been timely. Tex. R. App. P. 10.5(b), 26.3.

However, Young failed to meet the deadline to file a motion to extend the time to

file her appeal as well.

                                  CONCLSION

      Because Young filed her Notice of Appeal untimely and further failed to file

the required notice to extend time her appeal is untimely and the Court lacks

jurisdiction to hear her case.

                                     PRAYER

      Appellee, Texas Department of Family and Protective Services, prays that this

Court grant its Motion to Dismiss Appeal for lack of subject-matter jurisdiction.

                                 Respectfully submitted,

                                 KEN PAXTON
                                 Attorney General of Texas




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                               JEFFREY C. MATEER
                               First Assistant Attorney General

                               BRANTLEY STARR
                               Deputy First Assistant Attorney General

                               JAMES E. DAVIS
                               Deputy Attorney General for Civil Litigation

                               NICHOLE BUNKER-HENDERSON
                               Chief, Administrative Law Division

                               /s/ Ellen M. Sameth
                               ELLEN M. SAMETH
                               Assistant Attorney General
                               Texas State Bar No. 17555550
                               OFFICE OF THE TEXAS ATTORNEY GENERAL
                               ADMINISTRATIVE LAW DIVISION
                               P.O. Box 12548
                               Austin, Texas 78711-2548
                               Telephone: (512) 936-1838
                               Facsimile: (512) 457-4608
                               E-mail: ellen.sameth@oag.texas.gov
                               ATTORNEYS FOR TEXAS DEPARTMENT
                               OF FAMILY AND PROTECTIVE SERVICES



                     CERTIFICATE OF CONFERENCE

       I certify that on January 2, 2018, I conferred via e-mail with Samuel Sarfo,
attorney for Appellant, and that he opposes this Motion.


                                            /s/ Ellen M. Sameth
                                            Ellen M. Sameth
                                            Assistant Attorney General




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                     CERTIFICATE OF COMPLIANCE
      I certify that this Motion complies with Texas Rule of Appellate Procedure 9
and the word count of this document is 757. 2016 Microsoft Word was used to
prepare this filing and count the words in it.


                                            /s/ Ellen M. Sameth
                                            Ellen M. Sameth
                                            Assistant Attorney General


                        CERTIFICATE OF SERVICE
      I hereby certify that on January 2, 2018, a true and correct copy of the
foregoing document was served via the Court’s ECF system to all counsel of record.

      Samuel Adjei Sarfo
      7901 Cameron Road, Ste. 2-242
      Austin, Texas 78754
      Telephone: 512-297-0227
      Facsimile: 512-441-3413
      Email: lawyersarfo@yahoo.com


                                            /s/ Ellen M. Sameth
                                            Ellen M. Sameth
                                            Assistant Attorney General




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