in the Interest of I. K. and E. K., Children

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS §

IN THE INTEREST OF I. K. AND E. K., § No. 08-22-00055-CV CHILDREN, § Appeal from the Appellant. § 383rd District Court

§ of El Paso County, Texas

§ (TC# 2019DCM7783)

§ ORDER

This matter is before the Court to determine whether to dismiss this appeal for want of jurisdiction. We will ABATE this appeal for fifteen days and withhold dismissal pending further inquiry.

The 383rd District Court signed a final judgment in this case dated February 1, 2022. Appellant filed his notice of appeal on April 1, 2022. Because the notice of appeal appeared to be untimely filed, we questioned our jurisdiction over this matter and directed Appellant to show cause why this case should not be dismissed for want of jurisdiction. In his response to the Court, Appellant averred that he did not receive notice of the trial court's February 1 judgment until March 11, 2022. As such, under Tex.R.Civ.P. 306a(4), the April 1 notice of appeal was timely because it was filed within 30 days of the date Appellant received actual notice of the trial court’s judgment.

In order to establish the date of actual notice of a judgment for purposes of the appellate timetables under Rule 306a(4), the party adversely affected is required to prove in the trial court, on sworn motion and notice, the date on which the party of his attorney either first received notice of the judgment or acquired actual knowledge of the signing. See Tex.R.Civ.P. 306a(5), Hanash v. Walter Antiques, Inc., 551 S.W.3d 920, 924-25 (Tex.App.--El Paso 2018, pet. denied). At this time, we do not have proof such a motion has been filed in the trial court or that the trial court has otherwise established the late notice date this Court should use, as is required by Rule 306a(5).

Therefore, we ORDER this appeal to be abated for FIFTEEN DAYS to provide Appellant with the opportunity to either (1) show proof that the trial court has issued a Rule 306a(5) order that designates the date of actual notice of judgment, or (2) file a proper Rule 306a(5) motion with the trial court and provide this Court with proof such motion has been filed. Failure to provide these items to this Court before the abatement period ends may result in dismissal of this action without further notice to the parties.

IT IS SO ORDERED this 14th day of April, 2022.

PER CURIAM

Before Rodriguez, C.J., Palafox and Alley, JJ.