                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

 RENE ARROYO,                                     §               No. 08-11-00059-CV

                   Appellant,                     §                  Appeal from the

 v.                                               §                346th District Court

 TEXAS WORKFORCE COMMISSION,                      §             of El Paso County, Texas
 AND ITS TECHNOLOGIES %
 LOGISTICS, % TALX UCM SERVICES,                  §                  (TC# 2010-569)
 INC.—UC EXPRESS,
                                                  §
                   Appellees.
                                  MEMORANDUM OPINION

       This matter is before the Court on a motion to dismiss for lack of jurisdiction. We conclude

that a request for findings of fact and conclusions of law does not extend the time for filing a notice

of appeal from a judgment affirming the Texas Workforce Commission’s denial of unemployment

benefits. As a result of this holding, the notice of appeal in this case was untimely. We therefore

dismiss the appeal for lack of jurisdiction.

                                         BACKGROUND

       Rene Arroyo filed a claim for unemployment benefits upon being terminated from his

employment. The Texas Workforce Commission denied the claim, and Arroyo filed a petition for

judicial review. After conducting an evidentiary hearing, the district court determined that the

Commission’s decision was supported by substantial evidence. The court signed a final judgment

affirming the Commission’s decision on November 9, 2010. Arroyo filed a request for findings of

fact and conclusions of law on November 23, 2010. The district court did not enter any findings of

fact or conclusions of law. On February 7, 2011, Arroyo filed a notice of appeal.

                                           DISCUSSION
       A notice of appeal is generally due within thirty days after a final judgment is signed, unless

any post-judgment motions are filed to extend the deadline. See TEX . R. APP . P. 26.1(a). A timely

request for findings of fact and conclusions of law will extend the deadline to ninety days from the

signing of the judgment, if findings and conclusions “could properly be considered by the appellate

court.” TEX . R. APP . P. 26.1(a)(4).

       To determine whether findings and conclusions could properly be considered by an appellate

court, it is necessary to determine the nature of the trial court’s decision. The Texas Supreme Court

has stated that findings and conclusions could properly be considered on appeal from “any judgment

based in any part on an evidentiary hearing.” IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938

S.W.2d 440, 443 (Tex. 1997). On the other hand, “[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,

where findings and conclusions can have no purpose and should not be requested, made, or

considered on appeal.” Id.

       The “substantial evidence de novo” standard applies to a district court’s review of the

Commission’s decision regarding unemployment benefits. See TEX . LAB. CODE ANN . § 212.202(a)

(West 2006); Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986); Uranga v. Tex. Workforce Comm’n,

319 S.W.3d 787, 789 (Tex. App. – El Paso 2010, no pet.). Under this standard, the court must

determine whether there is substantial evidence to support the Commission’s decision, but in making

this determination, the court considers the evidence presented at the trial de novo rather than the

record created by the Commission. Mercer, 701 S.W.2d at 831; see also Uranga, 319 S.W.3d at 789

(“[T]he issue is whether the evidence introduced before the trial court shows facts in existence at the

time of [the Commission’s] decision that reasonably support the decision.”). The Commission’s

decision carries a presumption of validity, and the reviewing court may not set the decision aside
merely because the court would have reached a different conclusion. The decision may be set aside

only if it was made without regard to the law or the facts and was therefore unreasonable, arbitrary,

or capricious.   Mercer, 701 S.W.2d at 831; Uranga, 319 S.W.3d at 789.                “Whether [the

Commission’s] decision is supported by substantial evidence is strictly a question of law.” Uranga,

319 S.W.3d at 789.

       As mentioned above, the Texas Supreme Court has indicated that a request for findings and

conclusions would extend the appellate timetable from “any judgment based in any part on an

evidentiary hearing.” IKB Indus., 938 S.W.2d at 443. But such a request would not extend the

timetable from “a judgment rendered as a matter of law, where findings and conclusions can have

no purpose and should not be requested, made, or considered on appeal.” Id. At first blush, this case

seems to fall within both categories, because the district court’s final judgment was based in part on

the evidence presented at the hearing, but it was also rendered as a matter of law.

       The parties have not cited, and we have not found, any authority addressing whether a request

for findings of fact and conclusions of law extends the timetable for an appeal from a judgment

upholding the Commission’s denial of unemployment benefits. However, other appellate courts

have held that it is inappropriate for a trial court to make factual findings and legal conclusions on

review of the Commission’s decision. See Madisonville Consol. Indep. Sch. Dist. v. Tex. Emp’t

Comm’n, 821 S.W.2d 310, 314 (Tex. App. – Corpus Christi 1991, writ denied); Tex. Emp’t Comm’n

v. Lewis, 777 S.W.2d 817, 822 (Tex. App. – Fort Worth 1989, no writ); see also Meisner v. Tex.

Workforce Comm’n, No. 05-98-01410-CV, 2000 WL 1751098, at *5 (Tex. App. – Dallas Nov. 29,

2000, pet. denied) (not designated for publication); cf. Dallas Cnty. Civil Serv. Comm’n v. Warren,

988 S.W.2d 864, 870 (Tex. App. – San Antonio 1999, no pet.) (holding that the district court erred

in submitting the substantial evidence issue to the jury). As one court has explained, “Review under
the substantial evidence rule makes findings of fact unnecessary because there are no ‘facts’ to be

found by the court.” Heard v. Incalcaterra, 702 S.W.2d 272, 276 (Tex. App. – Houston [1st Dist.]

1985, writ ref’d n.r.e.) (reviewing decision of civil service commission under substantial evidence

de novo standard). It is for the Commission to resolve factual conflicts and ambiguities. See id.

The reviewing court may not substitute its judgment for that of the Commission on controverted fact

issues. See id. “The sole issue for the district court is not whether the [Commission] came to a

proper fact conclusion, but whether it acted arbitrarily and without regard to the facts.” Id.

       Arroyo argues that the standard of review should not determine whether a request for findings

and conclusions extends the appellate timetable. The Texas Supreme Court has indicated that an

appellate court’s standard of review is not dispositive. See IKB Indus., 938 S.W.2d at 443. If it

were, a request following dismissal for discovery abuse, as in IKB Industries, would not extend the

timetable even though the supreme court has “encouraged trial courts to make these findings, and

they can be considered on appeal.” Id. In this case, the district court’s standard of review

determined the nature of its ruling. Moreover, we are not aware of any authority indicating that a

district court’s factual findings should be considered in an appeal from a judgment upholding the

Commission’s decision.

       Arroyo also suggests that abuse of discretion, rather than substantial evidence de novo, is the

applicable standard of review because he is challenging the Commission’s interpretation of a statute

that purportedly gave him the right to use self-defense against a co-employee’s assault. The

interpretation of a statute is an issue of law for which factual findings would be inappropriate. See

Tex. Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002).

       The district court’s judgment was rendered as a matter of law, such that findings and

conclusions would have no purpose and could not be considered on appeal. See IKB Indus., 938
S.W.2d at 443. Accordingly, Arroyo’s request for findings and conclusions did not extend the

deadline for filing the notice of appeal.

       We lack jurisdiction over an appeal if the notice of appeal was not timely. Salas v. State

Farm Mut. Auto. Ins. Co., 226 S.W.3d 692, 695 (Tex. App. – El Paso 2007, no pet.). Because

Arroyo’s request for findings of fact and conclusions of law did not extend the appellate timetable,

his notice of appeal was due within thirty days after November 9, 2010--the date the trial court

signed the final judgment. Since he did not file his notice of appeal until February 7, 2011, the

notice was untimely. Therefore, the Commission’s motion to dismiss for lack of jurisdiction is

granted. The Commission’s motion for extension of time to file its brief is denied as moot.



                                              GUADALUPE RIVERA, Justice
June 15, 2011

Before Chew, C.J., McClure, and Rivera, JJ.
