












 
 
 
 
 
 
                                               COURT OF APPEALS
                                                 SECOND
DISTRICT OF TEXAS
                                                                FORT
WORTH
 
 
                                        NO.
2-06-313-CV
 
 
IN THE INTEREST OF S.J.R.,
A CHILD                                                                                             
 
                                              ------------
 
             FROM
THE 30TH DISTRICT COURT OF WICHITA COUNTY
 
                                              ------------
 
                                MEMORANDUM
OPINION[1]
 
                                              ------------




Appellant Edward L. O=Brien, pro se, attempts to appeal from the trial court=s June 5, 2006 orders denying his motion for continuance and his
motion to withdraw an administrative writ of withholding.  Appellant=s request for findings of fact and conclusions of law was due June 26,
2006 but not file-marked until June 27, 2006.[2]  Appellant filed a notice of appeal on
September 5, 2006.[3]  Because we were concerned that we lacked
jurisdiction over the appeal due to the untimely request for findings of fact
and conclusions of law, we sent Appellant a letter on September 15, 2006
requesting evidence of compliance with rule 5 of the Texas Rules of Civil
Procedure.
Appellant=s response indicates that he timely mailed his request for findings of
fact and conclusions of law via FedEx Express Priority Overnight on June 26,
2006.  Rule 5, however, requires that a
document be sent by Afirst‑class
United States mail@ to trigger
the ten-day grace period for filing.[4]  Accordingly, we hold that Appellant=s request for findings of fact and conclusions of law did not trigger
the grace period.  As a result, Appellant=s notice of appeal was due July 5, 2006,[5]
but was untimely filed two months later.




Because Appellant=s notice of appeal was untimely filed, we dismiss this case for want
of jurisdiction.[6]
PER CURIAM
PANEL F:    DAUPHINOT, HOLMAN,
and GARDNER, JJ.
DELIVERED: 
October 26, 2006
 




[1]See Tex. R.
App. P. 47.4.


[2]See Tex.
R. Civ. P. 296 (requiring that request be filed within twenty days of
signing of judgment).


[3]See Tex.
R. App. P. 26.1(a)(4) (extending deadline for filing notice of appeal to
ninety days from date of judgment if timely request for findings of fact and
conclusions of law is filed).


[4]Tex. R.
Civ. P. 5; Fountain
Parkway Ltd. v. Tarrant Appraisal Dist., 920 S.W.2d 799, 802 (Tex. App.CFort Worth 1996, writ denied)
(holding document untimely filed when, as here, it was sent via private courier
on the last day for timely filing).


[5]See Tex.
R. App. P. 26.1.


[6]See Tex.
R. App. P. 43.2(f).


