RESTRICTED APPEAL NOT AN OPTION WHERE POST-TRIAL MOTION WAS FILED IN THE TRIAL COURT
Lushann International Energy Corp. v. Harris County (Tex.App.- Houston [1st Dist.] Sep.
11, 2008)(per curiam) (no jurisdiction over restricted appeal; motion for new trial in court below precludes
DISMISS APPEAL: Per Curiam
Before Justices Nuchia, Alcala and Hanks
01-07-00119-CV Lushann International Energy Corp. v. Harris County
Appeal from 61st District Court of Harris County
Trial Court Judge: Hon. John Donovan
Appellee, Harris County, filed a motion to dismiss for want of jurisdiction. This Court requested a
response by appellant, Lushann International Energy Corp., by April 6, 2007. Appellant filed two
motions for extension of time to file the response, extending the filing deadline until July 11, 2007. To
date, no response has been filed.
The trial court rendered judgment on June 22, 2006, and appellant timely filed a motion for new trial
on July 21, 2006. Thus, appellant’s notice of appeal was due within 90 days after the judgment was
signed, which was September 20, 2006. See Tex. R. App. P. 26.1(a)(1). Appellant did not file a
notice of appeal by September 20, 2006. However, appellant filed what purported to be a notice of
restricted appeal in February 2007. A restricted appeal is only available to a party “who did not timely
file a postjudgment motion . . . .” See Tex. R. App. P. 30. Because appellant timely filed a motion for
new trial, we lack jurisdiction over this restricted appeal. Clopton v. Pak, 66 S.W.3d 513, 515 (Tex.
App.—Fort Worth 2001, pet. denied); see Wright Bros. Energy, Inc. v. Krough, 67 S.W.3d 271, 273
(Tex. App.—Houston [1st Dist.] 2001, no pet.). We dismiss this appeal for lack of subject matter
Panel consists of Justices Nuchia, Alcala, and Hanks.