Wallace Wayne Bowman, Jr. v. Montague County District Clerk ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00083-CV
___________________________
WALLACE WAYNE BOWMAN, JR., Appellant
V.
MONTAGUE COUNTY DISTRICT CLERK, Appellee
On Appeal from the 97th District Court
Montague County, Texas
Trial Court No. 2018-0424-M-CV
Before Sudderth, C.J.; Gabriel and Kerr, JJ.
Memorandum Opinion by Chief Justice Sudderth
MEMORANDUM OPINION
On 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).1
On 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.
1
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 motion under
rule 26.1(a), the deadline to file the notice of appeal may extend to 90 days. Tex. R.
App. P. 26.1(a).
2
Rule of 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, 42.3(a), 44.3.
Appellant 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
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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.
But in Raesz and Simmons, the trial court judges issued findings of fact and conclusions
of law based on evidence and the determination of fact questions.2 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
2
In Raesz, an attorney filed suit in the trial court for a writ of mandamus to
compel the county clerk to comply with his request for two exhibits in a criminal
proceeding in which he was neither a party nor a party’s attorney. 415 S.W.3d at 352.
The trial court denied the application and issued findings of fact and conclusions of
law. Id. But there were exhibits at issue in that case, i.e., evidence from which the
trial court could issue findings of fact. Id. at 353–54. In Simmons, after a police chief
refused to release documents about a car collision to an attorney under the Texas
Public Information Act, the attorney filed an application for writ of mandamus. 166
S.W.3d at 344. The trial court held an evidentiary hearing and ruled that the release of
the requested materials and documents would not interfere with the detection,
investigation, or prosecution of crime. Id. at 345.
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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.”).
Further, 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”).
Because 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
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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), 43.2(f).
/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice
Delivered: June 13, 2019
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