                                   NO. 07-07-0142-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL C

                                      JULY 20, 2007

                          ______________________________


                      CAMERON CLAY FLATHERS, APPELLANT

                                            V.

              THE TEXAS DEPARTMENT OF PUBLIC SAFETY, APPELLEE


                        _________________________________

           FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;

              NO. 2006-599,811; HONORABLE PAULA LANEHART, JUDGE

                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                         OPINION


       Pending before this Court is Appellant’s (sic) Motion for Dismissal.1 The Department

alleges that Cameron Clay Flathers’s Notice of Appeal was not timely filed and thus this



       1
       Although delineated as Appellant’s Motion for Dismissal, the motion was in fact filed
by the Appellee, the Texas Department of Public Safety.
Court lacks jurisdiction over the appeal. The motion is opposed; however, Flathers did not

file a response. We agree with the Department and dismiss this appeal.


       On November 15, 2006, an administrative hearing was held on Flathers’s contest

to the Department’s order to suspend his driver’s license. The administrative law judge

issued an order authorizing the Department to suspend Flathers’s license, and Flathers

appealed the decision to the County Court at Law. Sitting in an appellate capacity, on

January 9, 2007, the court conducted a hearing which resulted in a judgment that the

administrative law judge had not abused his discretion in ordering suspension of Flathers’s

driver’s license.


       The court’s judgment was signed on February 2, 2007. On February 14th, Flathers

filed a request for findings of fact and conclusions of law pursuant to Rule 296 of the Texas

Rules of Civil Procedure. His notice of appeal was filed on April 9, 2007, sixty-six days

after judgment was signed.


       As a general rule, in order to invoke the jurisdiction of an appellate court the

appellant must file a notice of appeal within 30 days after the judgment is signed. Tex. R.

App. P. 26.1. However, Rule 26.1(a)(4) of the Texas Rules of Appellate Procedure

extends the time in which to file a notice of appeal to ninety days after judgment is signed

when a timely request for findings of fact and conclusions of law is filed. This rule,

however, specifically limits application of the ninety-day deadline to those situations where



                                             2
findings and conclusions either are required by the Rules of Civil Procedure or, if not

required, could properly be considered by the appellate court. (Emphasis added).


       Rule 296 of the Texas Rules of Civil Procedure provides that a party may request

findings of fact and conclusions of law in any case tried in the district or county court after

a conventional trial on the merits.      The mere right to request 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 cannot be

properly considered by the appellate court. IKB Industries (Nigeria) Ltd. v. Pro-Line Corp.,

938 S.W.2d 440, 443 (Tex. 1997) (holding that a request for findings and conclusions did

extend the time for perfecting an appeal where there was a factual dispute over

explanations for alleged discovery abuse).2 Where judgment is rendered as a matter of

law, a party is not entitled to findings and conclusions. See Linwood v. NCNB Texas, 885

S.W.2d 102, 103 (Tex. 1994) (explaining why a request for findings of fact has “no place”

in a case concluded by summary judgment and why a request for findings and conclusions

does not extend appellate deadlines pursuant to Rule 26.1(a)(4)).




       2
        See also Texas Dept. of Public Safety v. Alford, 154 S.W.3d 133, 141
(Tex.App.–Waco 2004) (dissenting opinion concluding that the majority erred in suggesting
that the Texas Department of Public Safety should have requested findings of fact and
conclusions of law because findings and conclusions would not have been proper in an
administrative appeal under the substantial evidence rule), rev’d on other grounds, 209
S.W.3d 101 (Tex. 2006).

                                              3
         A person whose driver’s license has been administratively suspended may appeal

the suspension by timely filing a petition in a county court at law in the appropriate county.

Tex. Transp. Code Ann. § 524.041 (Vernon 2007). The appeal is not a trial de novo; but

is, instead, limited to the record of the administrative hearing as certified by the State Office

of Administrative Hearings. § 524.043. The trial court may order the presentation of

additional evidence if it is satisfied that additional evidence is material and that there were

good reasons for the failure to present that evidence before the administrative law judge.

§524.043(b). In those cases where additional evidence is not received, the scope of

review is limited to a determination of whether the substantial rights of the appellant have

been prejudiced because the administrative findings, inferences, conclusions, or decisions

are not reasonably supported by substantial evidence. Tex. Gov’t Code Ann. § 2001.174

(Vernon 2000); Texas Department of Public Safety v. Alford, 209 S.W.3d 101, 103 (Tex.

2006).


         Whether or not there is substantial evidence to support an administrative decision

is a question of law. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 566 (Tex.

2000). The court that heard Flathers’s appeal from the administrative decision to suspend

his driver’s license heard only arguments from counsel and did not hear additional

evidence pursuant to § 524.043(b). Because there was no factual dispute presented to the

trial court we conclude that Flathers’s request for findings of fact and conclusions of law

could not have properly been considered and thus, did not extend the time in which to file

his notice of appeal. The notice was due on March 4, 2007, thirty days from the trial

                                               4
court’s February 2, 2007 judgment. Tex. R. App. P. 26.1. Flathers’s notice filed on April

9, 2007, is untimely and deprives this Court of jurisdiction to consider his appeal.


       Consequently, the appeal is dismissed for want of jurisdiction.


                                                 Patrick A. Pirtle
                                                     Justice




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