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In re Removal of Rio Grande City Mayor Joel Villarreal

Court of Appeals of Texas, Fourth District, San Antonio

January 24, 2018

IN RE REMOVAL OF RIO GRANDE CITY MAYOR JOEL VILLARREAL, and Rio Grande City Commissioners Arcadio J. Salinas, III, Place 1; Rey Ramirez, Place 2; Hernan Garza, III, Place 3; and Dave Jones, Place 4

          From the 229th Judicial District Court, Starr County, Texas Trial Court No. DC-17-134 Honorable J.R. "Bobby" Flores, Judge Presiding

          Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez,

          MEMORANDUM OPINION

          PER CURIAM

         In the underlying case, Mauro Villarreal filed a Petition for Removal of Rio Grande City Mayor Joel Villarreal and City Commissioners Arcadio J. Salinas III, Rey Ramirez, Hernan Garza III, and Dave Jones ("the Mayor and Commissioners") pursuant to sections 21.025 and 21.026 of the Texas Local Government Code. In response, the Mayor and Commissioners filed a plea to the jurisdiction, arguing the suit must be dismissed as a matter of law. On July 7, 2017, Mauro Villarreal filed a motion for nonsuit, stating that he no longer wanted to prosecute his claims against the Mayor and Commissioners and asking that his claims be dismissed without prejudice to refile. On July 10, 2017, the trial court heard the Mayor and Commissioners' plea to the jurisdiction. On July 11, 2017, the trial court signed an order granting the plea to the jurisdiction and dismissing Mauro Villarreal's claims "with prejudice against refiling of same." On July 31, 2017, Mauro Villarreal filed a request for findings of fact and conclusions of law, asking that the trial court "state in writing the findings of fact found by the court separately from the conclusions of law on its Order dated July 11, 2017." On October 9, 2017, Mauro Villarreal filed a notice of appeal, stating his intent to appeal the trial court's granting of the Mayor and Commissioners' plea to the jurisdiction with prejudice to refiling.

         The Mayor and Commissioners have filed a motion to dismiss this appeal for lack of jurisdiction, arguing that Mauro Villarreal's notice of appeal was filed untimely and thus did not invest this Court with jurisdiction over this appeal. According to the Mayor and Commissioners, Mauro Villarreal's request for findings of fact and conclusions of law did not extend the time to perfect the appeal because findings of fact and conclusions of law were unnecessary in this case. We agree with the Mayor and Commissioners.

         The signing of an order of dismissal triggers the appellate deadlines. In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997). Thus, the appellate deadlines in this case began on July 11, 2017. Without a pleading that extended the appellate deadlines, Mauro Villarreal's notice of appeal was due on August 10, 2017, thirty days after the trial court signed the order of dismissal. See Tex. R. App. P. 26.1. Texas Rule of Appellate Procedure 26.1(a)(4) extends the deadline to file the notice of appeal to ninety days after the trial court signed the order of dismissal if Mauro Villarreal timely filed "a request for findings of fact and conclusions of law if findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court." Tex.R.App.P. 26.1(a)(4). Thus, we must determine in this appeal whether Mauro Villarreal's request for findings of fact and conclusions of law were required by the Rules of Civil Procedure or could properly be considered by this Court on appeal. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997) (holding that request for findings of fact and conclusions of law do not extend the appellate deadlines when findings and conclusions have no purpose and should not be requested, made, or considered on appeal).

         In the context of a plea to the jurisdiction, there are instances when it is appropriate for a trial court to hold an evidentiary hearing and make factual determinations of conflicting evidence. Ford v. City of Lubbock, 76 S.W.3d 795, 796 (Tex. App.-Amarillo 2002, no pet.). However, when a trial court decides a plea as a matter of law on the pleadings or agreed facts, there is no disputed fact issue for resolution by the trial court, and findings of fact and conclusions of law are not required and serve no purpose. Id. at 797. Under such circumstances, a request for findings of fact and conclusions of law do not extend the appellate deadline for perfecting an appeal. Id. at 798. In this case, the trial court decided the Mayor and Commissioners' plea to the jurisdiction as a matter of law without hearing evidence. Thus, because Mauro Villarreal's request for findings of fact and conclusions of law were not required and would serve no purpose, the request did not extend the appellate timetable for perfecting his appeal. Therefore, Mauro Villarreal's notice of appeal was not filed timely and did not invoke our jurisdiction over this appeal.

         This appeal is dismissed for lack of jurisdiction.[1]

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Notes:

[1] As we are dismissing this appeal for lack of jurisdiction, we need not reach the Mayor and Commissioners' alternative argument that the District Attorney for Starr County, Texas, who filed a notice of appeal on Mauro Villarreal's ...


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