      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00428-CV



                                     Joe Pena, Sr., Appellant

                                                  v.

                      Scott and White Memorial Hospital, Scott Sherwood
                              and Brindley Foundation, Appellees




      FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
         NO. 207332-C, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               On August 23, 2005, this Court notified appellant, Joe Pena, Sr., that it appeared from

the record that this Court lacks jurisdiction because his notice of appeal was not timely filed. We

informed him that his appeal would be dismissed unless he could show that the Court has

jurisdiction. In response, Pena asserts that his notice of appeal was filed on June 24, 2005. He

contends that his notice of appeal, filed 90 days after his receipt of the district court’s summary

judgment, was timely because he requested findings of fact and conclusions of law. See Tex. R.

App. P. 26.1(a)(4).

               Even assuming Pena’s notice of appeal was filed on June 24, it is still untimely. A

request for findings of fact and conclusions of law only extends the time for filing a notice of appeal

when findings are “required by the Rules of Civil Procedure or, if not required, could properly be
considered by the appellate court.” Id. The supreme court has held that a trial court should not make

findings of fact and conclusions of law in a summary judgment, and that any such findings may not

be considered by appellate courts. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440,

441-42 (Tex. 1997). “Because a request for findings and conclusions following summary judgment

can have no purpose, should not be filed, and if filed, should be ignored by the trial court, such a

request should not extend appellate deadlines.” Id.; see also Tex. R. App. P. 26.1(A)(4).

Accordingly, Pena’s notice of appeal should have been filed within 30 days of the summary

judgment.1 See Tex. R. App. P. 26.1.

               We hold that Pena’s notice of appeal was untimely and that he has failed to perfect

an appeal. See id. We dismiss the appeal for want of jurisdiction.




                                              Bea Ann Smith, Justice

Before Chief Justice Law, Justices B. A. Smith and Puryear

Dismissed for Want of Jurisdiction

Filed: September 22, 2005




       1
         Pena’s notice of appeal was also filed well after the 15 day period in which a motion to
extend time would be implied.

                                                 2
