Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 97th District Court Montague County, Texas
Trial Court No. 2018-0424-M-CV
Sudderth, C.J.; Gabriel and Kerr, JJ.
SUDDERTH CHIEF JUSTICE
December 4, 2018, the trial court signed an order denying the
"Application for Writ of Mandamus" filed by
Appellant Wallace Wayne Bowman, Jr., explaining in the order
that Appellant's petition to compel the district clerk to
file his post-conviction writ, which was not on the form
promulgated by the court of criminal appeals, was not filed
in the proper manner. Under rule of appellate procedure 26.1,
Appellant's notice of appeal was due on January 3, 2019,
unless he timely filed an applicable post-judgment motion or
request. See Tex. R. App. P. 26.1(a).
December 18, 2018, Appellant filed a request for findings of
fact and conclusions of law. See Tex. R. Civ. P. 296
(stating that a party may request findings of fact and
conclusions of law in any case tried without a jury). In his
cover letter, he informed the district clerk that he was
seeking clarification of the trial court's December 4,
2018 decision and that his request for findings and
conclusions "will be for perfecting [his] appeal where
it could properly be considered by the appellate court,"
referencing rule of appellate procedure 26.1(a)(4). Appellant
filed his notice of appeal on March 6, 2019.
appellate procedure 26.1(a)(4) provides that a notice of
appeal must be filed within 90 days after the judgment is
signed if any party timely files "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)
(emphasis added). Accordingly, we notified Appellant on March
18, 2019, and again on April 5, 2019, of our concern that we
lacked jurisdiction over the appeal, first because his notice
of appeal appeared a couple of days late if the time for
filing had been extended to 90 days, and then because it did
not appear to this court that his request for findings of
fact and conclusions of law had extended the 30-day deadline
to 90 days. See id.; see also Smith v. Padilla,
L.L.C., No. 02-17-00326-CV, 2018 WL 895465, at *5 (Tex.
App.-Fort Worth Feb. 15, 2018, no pet.) (mem. op.) (holding
that appellant's request for findings of fact and
conclusions of law did not extend time for filing the notice
of appeal because there were no issues of disputed fact
decided by the trial court). We stated that unless Appellant
or any party desiring to continue the appeal filed a response
showing a reasonable explanation for the late filing of the
notice of appeal, we would dismiss the appeal for want of
jurisdiction. See Tex. R. App. P. 25.1(b), 26.1,
filed a response, referring us to Raesz v. Mitchell,
415 S.W.3d 352, 353 (Tex. App.-Fort Worth 2013, pet. denied),
and Simmons v. Kuzmich, 166 S.W.3d 342, 345–46
(Tex. App.-Fort Worth 2005, no pet.), to support his argument
that a request for findings and conclusions was appropriate
and had extended the time to file his notice of appeal. He
further argued that he had made
a bona fide attempt to file an appeal of the denial of the
writ of mandamus by requesting for finding[s] of fact and
conclusions of law onto the district clerk to be brought to
the attention of the trial court where [his] interpretation
of Raesz . . . and Simmons . . .
demonstrates in its standard of review, that such findings
and conclusions [are] absolute[ly] necessary to perfect an
appeal from a writ of mandamus.
Raesz and Simmons, the trial court judges
issued findings of fact and conclusions of law based on
evidence and the determination of fact
questions. In contrast, the trial court in the
instant case did not hold an evidentiary hearing, and
Appellant did not submit any affidavits or exhibits with his
petition for writ of mandamus, resulting in a purely legal
decision based solely on his pleadings. See IKB Indus.
(Nigeria) v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex.
1997) (stating that a request for findings of fact and
conclusions of law does not extend the time for perfecting
appeal of a judgment rendered as a matter of law when
findings and conclusions can have no purpose and should not
be requested, made, or considered on appeal, i.e., on the
appeal of "any judgment rendered without an evidentiary
hearing"); see also Smith, 2018 WL 895465, at
*5 (holding that appellant's request for findings of fact
and conclusions of law did not extend time for filing the
notice of appeal and dismissing appeal for want of
jurisdiction because notice of appeal was untimely filed);
Ezy-Lift of Ca., Inc. v. EZY Acquisition, LLC, No.
01-13-00058-CV, 2014 WL 1516239, at *8 (Tex. App.- Houston
[1st Dist.] Apr. 17, 2014, pet. denied) (mem. op. on
reh'g) ("Texas courts have refused to extend
appellate deadlines in response to improper requests for
findings of facts and conclusions of law.").
several cases hold that a request for findings of fact and
conclusions of law does not constitute a bona fide attempt to
invoke appellate jurisdiction. See, e.g., Grant v. Dallas
Cty., No. 05-16-00065-CV, 2016 WL 2864731, at *1 (Tex.
App.- Dallas May 12, 2016, pet. denied) (mem. op.) (citing
Chavez v. Hous. Auth. of El Paso, 897 S.W.2d 523,
526 (Tex. App.-El Paso 1995, writ denied), and Besing v.
Moffitt, 882 S.W.2d 79, 82 (Tex. App.-Amarillo 1994, no
writ), for the proposition that "[a] request for
findings of fact and conclusions of law does not constitute
an attempt to invoke appellate jurisdiction").
Appellant's response does not show a reasonable
explanation for the late filing of his notice of appeal, we
dismiss the appeal for want of jurisdiction. See,
e.g., In re D.A., No. 02-15-00346-CV, 2015 WL
9244637, at *1 (Tex. App.-Fort Worth Dec. 17, 2015, no pet.)
(mem. op.) ("The time for filing a notice of appeal is
jurisdictional in this court, and absent a timely-filed
notice of appeal or extension request, we must dismiss the
appeal."); see also Tex. R. App. P. 42.3(a),
Rule of appellate procedure 26.1(a)
provides that a notice of appeal must be filed within 30 days
after the judgment is signed unless any party timely files a
motion for new trial, a motion to modify the judgment, a
motion to reinstate under rule of civil procedure 165a (where
applicable), or-under some circumstances-a request for
findings of fact and conclusions of law. Tex. R. App. P.
26.1(a). Subject to some exceptions, see Tex. R.
App. P. 28.1, if a party timely files an applicable ...