
                                          NO. 07-10-00065-CV

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL B

                                            MARCH 31, 2010




                                      RICKY D. STARKS, APPELLANT


                                                  v.


                                         TEXAS DEPARTMENT OF
                                      CRIMINAL JUSTICE, APPELLEE



                            FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                          NO. 91,655-00-E; HONORABLE DOUGLAS WOODBURN, JUDGE



Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                          MEMORANDUM OPINION


      Appellant, Ricky D. Starks, appeals  an  order  granting  appellee,  the  Texas  Department  of
Criminal Justice, summary judgment.  We dismiss for want of jurisdiction.

      The clerk(s record reflects that Starks filed notice of  appeal  on  February  22,  2010.   The
judgment appealed from was signed on October 20, 2009.  Appellant filed a motion  for  new  trial  on
December 16, 2009.  A timely filed motion for new trial will extend the deadline  for  filing  notice
of appeal to 90 days from the date judgment was signed.  See Tex. R. App. P. 26.1.  However,  in  the
present case, appellant’s motion for new trial was not timely filed.  See Tex. R. Civ. P. 329b(a).

      Texas Rule of Civil Procedure 306a provides an exception to the general rule when a party  does
not receive notice of judgment until 20 or more days after judgment is signed so long as  the  notice
is received prior to the ninety-first day after  the  judgment  is  signed.   See  Tex.  R.  Civ.  P.
306a(4).  Under the procedures established by this rule, the party adversely affected is required  to
prove in the trial court, on sworn motion and notice, the date on which the  party  or  his  attorney
first either received a notice of the judgment or acquired actual  knowledge  of  the  signing.   See
Tex. R. Civ.  P.  306a(5).   Compliance  with  the  provisions  of  rule  306a  is  a  jurisdictional
prerequisite.  See Mem’l Hosp. v. Gillis, 741 S.W.2d 364, 365 (Tex. 1987) (per curiam).

      On January 22, 2010, appellant filed a motion to extend postjudgment deadlines in an attempt to
comply with the requisites of rule 306a(5).   However,  appellant  swore  that  “the  foregoing  [the
motion] is true and correct to the best of my knowledge . . . .”   The  “sworn  motion”  required  by
rule 306a(5) is not satisfied by the affiant’s allegation that “the facts contained herein  are  true
and correct to the best of my knowledge.”  In re Simpson,  932  S.W.2d  674,  677  (Tex.App.—Amarillo
1996, no writ).  Rather, to be sufficient, the allegation must directly and  unequivocally  represent
the facts are true and  within  the  personal  knowledge  of  the  affiant.   Id.  (citing  Burke  v.
Satterfield, 525 S.W.2d 950, 954-55 (Tex. 1975)).

      By letter dated March 17, 2010, the Court notified Starks that it  appeared  from  the  clerk’s
record that this Court’s jurisdiction was not properly invoked and directed Starks to show cause  why
the appeal should not be dismissed for want of jurisdiction.  Starks filed a response  on  March  26,
2010.

      In this response, Starks contends that, as  an  inmate,  he  is  allowed  to  file  an  unsworn
declaration in lieu of a sworn certification.  See Tex.  Civ.  Prac.  &  Rem.  Code  Ann.  §  132.001
(Vernon Supp. 2009).  While Starks is correct, it is the equivocal nature of his unsworn  declaration
that is fatal to his motion, rather than the failure to have the declaration sworn.

      In addition, Starks contends that this Court cannot “raise” the issue of a defect in his motion
to extend postjudgment deadlines.  Compliance with the  provisions  of  rule  306a  is  necessary  to
invoke this Court’s jurisdiction when notice of appeal is untimely filed.  See Gillis, 741 S.W.2d  at
365.  If notice of appeal is not filed timely, the appellate court's jurisdiction is invoked only  to
the extent that the court may determine  its  lack  of  jurisdiction  and  dismiss  the  appeal.  See
Simpson, 932 S.W.2d at 679.  Courts must address questions of jurisdiction both sua sponte  and  when
raised by the parties.  Buffalo Royalty Corp.  v.  Enron  Corp.,  906  S.W.2d  275,  277  (Tex.App.--
Amarillo 1995, no writ).  Thus, this Court can not only “raise” the issue of  its  jurisdiction,  but
it must do so when that jurisdiction is absent or has not been properly invoked.

      For the foregoing reasons, we dismiss Stark’s appeal for want of jurisdiction.





                                        Mackey K. Hancock
                                              Justice

