

Opinion issued February 16, 2012

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00161-CV
———————————
O.G.W. and J.R.R., Appellants
V.
Department
of Family and Protective Services, Appellee

 

 
On Appeal from the 313th District Court
Harris County, Texas

Trial Court Case No. 201000554J
 

 
O P I N I O N
          On
November 23, 2010, the district court signed a final order terminating the
parental rights of appellants O.G.W. and J.R.R. 
A notice of appeal was filed on February 24, 2011.  In its appellee’s brief, the Department of
Family and Protective moves to dismiss the case for want of jurisdiction.  See
Tex. R. App. P. 42.3(a).  Because the deadline to file the notice of
appeal was December 13, 2010, we dismiss the appeal.
          Under
the provisions of the Family Code applicable to this case,[1] an appeal of a final order
under Family Code title 5, subtitle E, chapter 263, subchapter E (“Final Order
for Child under Department Care”) is governed by the rules for accelerated
appeals.  Act of May 22, 2001, 77th Leg.,
R.S., ch. 1090, § 9, sec.
263.405(a), 2001 Tex. Gen. Laws 2395 2397, amended
by Act of May 5, 2011, 82d Leg., R.S., ch. 75, § 4, 2011 Tex. Gen. Laws 348, 349 (former Tex. Fam. Code § 263.405(a), since amended); In re A.J.K., 116 S.W.3d 165 (Tex.
App.—Houston [14th Dist.] 2003, no pet.) (discussing applicability of section
263.405 to cases in which (1) Department has requested to be appointed child’s
conservator or (2) Department has requested termination of parent‑child
relationship); see In re G.J.P., 314 S.W.3d 217, 220 (Tex.
App.—Texarkana 2010, pet. denied).  In
addition, an appeal from a final order rendered in a suit in which termination
of the parent‑child relationship is in issue shall be accelerated and the
procedures for an accelerated appeal under the Texas Rules of Appellate Procedure
apply.  Act of May 15, 2001, 77th Leg.,
R.S., ch. 421, § 1, sec. 109.002(a),
2001 Tex. Gen. Laws 806, 806 and Act
of May 15, 2001, 77th Leg., R.S., ch. 539, § 2, sec. 109.002(a), 2001 Tex. Gen. Laws 1017, 1017, amended by Act of May 5, 2011, 82d Leg., R.S., ch. 75, § 3, 2011 Tex. Gen. Laws 348, 349 (former Tex. Fam. Code § 109.002(a), since amended).[2]
          An accelerated appeal is perfected by
filing a notice of appeal within 20 days after the order is signed.  Tex.
R. App. P. 25.1, 26.1(b).  No
motion to extend time to file the notice of appeal was filed, and the December
21, 2010 filing of O.G.W.’s motion for new trial did not extend the deadline to
file a notice of appeal.  See Act of May 22, 2001, 77th Leg.,
R.S., ch. 1090, § 9, sec.
263.405(c), 2001 Tex. Gen. Laws 2395 2398, amended
by Act of May 5, 2011, 82d Leg., R.S., ch. 75, § 4, 2011 Tex. Gen. Laws 348, 349 (former Tex. Fam. Code § 263.405(c), since amended to delete language that “A motion for a new trial,
a request for findings of fact and conclusions of law, or any other post-trial
motion in the trial court does not extend the deadline for filing a notice of
appeal under Rule 26.1(b) . . . .”); Tex. R. App. P. 28.1(b); In
re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005).
          The notice of appeal was due within 20
days of November 23, 2010, i.e., December 13, 2010.  Tex.
R. App. P. 26.1(b).  The notice of
appeal was filed on February 24, 2011 and did not operate to timely perfect the
appeal.[3]  Because the deadline to file the notice of
appeal was December 13, 2010, we grant the Department’s motion and dismiss the
case for want of jurisdiction.  See Tex.
R. App. P. 42.3(a), 43.2(f). 
 
 
                                                                      Jim
Sharp
                                                                      Justice

 
Panel
consists of Justices Jennings, Sharp, and Brown.
 




[1]         Act of May 5, 2011, 82d Leg., R.S., ch. 75, § 8, 2011
Tex. Gen. Laws 348, 349 provides:
 
          Sections 109.002(a) and 263.405(a) and (b), Family
Code, as amended by this Act, apply only to a final order rendered on or after
the effective date of this Act.  A final
order rendered before the effective date of this Act is governed by the law in
effect on the date the order was rendered, and the former law is continued in effect
for that purpose.
 
          The effective date of the Act was
September 1, 2011.  Act of May 5, 2011, 82d
Leg., R.S., ch. 75, § 9, 2011 Tex. Gen. Laws 348, 349.


[2]         The 2011
amendments to Family Code sections 109.002(a) and 263.405(a) specify
that the Texas Rules of Appellate Procedure apply, but do not otherwise
substantively change those subsections.
 


[3]         The
notice of appeal states that the appeal is accelerated.  See
Tex. R. App. P. 25.1(d)(6) (in
accelerated appeal, notice of appeal must state that appeal is accelerated).  The
notice of appeal does not contain any of the required statements to indicate
this is a restricted appeal.  See Tex.
R. App. P. 25.1(d)(7).


