![]() Before notifying Stivers of his failure to pay the filing fee, we also notified him that his notice of appeal was not timely filed and questioned our jurisdiction. But Stivers still had the duty to come forward with a reasonable explanation to support the late filing, which he has not done. We recognize that because the perfecting instrument was filed within fifteen days of the appellate deadline, an extension motion is implied. But the postmark is “conclusive proof of the date of mailing.” Tex. Stivers stated in the certificate of service that he “served a copy of Notice of Appeal on the Parties listed below by First Class U.S. The envelope shows that it was postmarked by the United States Postal Service in Austin, Texas, on October 18, 2018, two days after the appellate deadline. 2 The notice of appeal was filed in the trial court on October 22, 2018. Accordingly, Stivers’s notice of appeal was due on or before October 16, 2018. Stivers’s motion for new trial was filed in the trial court on August 22, 2018, but the one-day priority envelope shows that it was received by the United States Postal Service on Augthus, it was timely filed. The trial court signed its final summary judgment on July 18, 2018, making any motion for new trial due on or before August 17, 2018. But upon further review of the record, we have determined that we do not have jurisdiction over this appeal. Holmes responded and argued that Stivers’s appeal was subject to dismissal for nonpayment because he did not fix the identified defect within a reasonable time after our notifications. Because the clerk’s record seemed to support Stivers’s assertion, we requested a response from appellee Jerry Holmes. The next day, Stivers filed a letter, which we construed to be a motion for rehearing, arguing that he had sought to proceed without the payment of costs in the trial court. Specifically, we concluded that Stivers had failed to pay the required filing fee after we had twice requested his compliance. Per Curiam Memorandum Opinion on Rehearing MEMORANDUM OPINION ON REHEARING On January 10, 2019, we dismissed appellant Eddie Lacy Stivers III’s attempted appeal from the trial court’s Jfinal summary judgment. D297-S-12155-13 Before Gabriel, Kerr, and Pittman, JJ. JERRY HOLMES, Appellee On Appeal from the 297th District Court Tarrant County, Texas Trial Court No. 02-18-00342-CV _ EDDIE LACY STIVERS III, Appellant V. ![]() In the Court of Appeals Second Appellate District of Texas at Fort Worth _ No. ![]()
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