Opinion
NO. 09-19-00338-CV
07-16-2020
VIRNA CATHERINE FENDER, Appellant v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee
On Appeal from the County Court at Law No. 5 Montgomery County, Texas
Trial Cause No. 19-31395
MEMORANDUM OPINION
On October 2, 2019, Virna Catherine Fender filed a notice of appeal from a final order signed on August 6, 2019, in a driver's license suspension case. The Texas Department of Public Safety moved to dismiss on the ground that Fender failed to file her notice of appeal in time to perfect an appeal. Fender filed a response. We dismiss the appeal for lack of jurisdiction.
On May 9, 2019, the administrative judge issued an order authorizing the Texas Department of Public Safety to suspend Fender's license. On August 6, 2019, the trial court signed a take-nothing order that affirmed the administrative agency decision. The order recited that the trial court found the decision should be affirmed "after hearing the arguments of the Parties[.]" Fender filed a request for findings of fact and conclusions of law on August 13, 2019. She filed a notice of appeal on October 2, 2019, more than thirty days after the trial court signed the appealable order.
The Department filed a motion to dismiss the appeal. The Department argues Fender's request for findings of fact and conclusions of law did not trigger the extended timetable for filing a notice of appeal because the trial court did not conduct an evidentiary hearing before signing the appealable order. Fender argues her request for findings of fact and conclusions of law functioned as a motion for new trial.
A notice of appeal from a final judgment must be filed within thirty days from the date of judgment unless a party timely files a motion for new trial or "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)(1), (4). "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" or for "any judgment rendered without an evidentiary hearing." IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex. 1997). When a trial court determines an appeal from an administrative license suspension without ordering the presentation of additional evidence but determines whether the substantial rights of the appellant have been prejudiced because the administrative decision is not reasonably supported by substantial evidence, a request for findings and conclusions will not extend the appellate timetable. Flathers v. Texas Dep't of Pub. Safety, 279 S.W.3d 789, 790-791 (Tex. App.—Amarillo 2007, no pet.).
Fender's case is indistinguishable from Flathers. Id. Although a motion for new trial would have triggered the extended timetable, Fender's request for findings and conclusions did not ask the trial court to vacate the judgment or grant a new trial. No language in the request for findings and conclusions suggests she made a bona fide attempt to invoke this Court's appellate jurisdiction. See In re J.M., 396 S.W.3d 528, 530 (Tex. 2013) (Appellant made bona fide attempt to perfect appeal by combining motion for new trial with notice of appeal). We grant the Department's motion to dismiss and dismiss the appeal for lack of jurisdiction.
APPEAL DISMISSED.
PER CURIAM Submitted on July 15, 2020
Opinion Delivered July 16, 2020 Before Kreger, Horton and Johnson, JJ.