Court of Appeals of Texas, San Antonio.

John G. PARRA, Appellant

v.

UNITED STATES FIRE INSURANCE COMPANY, Appellee

No. 04-97-00272-CV.

|

Aug. 27, 1997.

From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 95-CI-16709 Honorable David Peeples, Judge Presiding

Sitting: TOM RICKHOFF, Justice CATHERINE STONE, Justice KAREN ANGELINI, Justice.

Opinion

PER CURIAM.

*1 DISMISSED

John G. Parra has attempted to appeal a judgment of the trial court affirming a decision of the Workers’ Compensation Commission Appeals Panel. For the reasons that follow, we dismiss the appeal.

Procedural History

Parra filed a petition for judicial review of a decision of the Workers’ Compensation Commission Appeals Panel (“the Appeals Panel”). On December 20, 1996, the trial court signed a judgment affirming the Appeals Panel’s decision. On January 6, 1997, Parra filed a request for findings of fact and conclusions of law, and on January 7, 1997, he filed an affidavit of inability to pay costs of appeal. United States Fire Insurance Company and the court reporter contested the affidavit. On January 16, 1997, the trial court sustained the contests. Thereafter, Parra did not file a cost bond or cash deposit.

Upon receipt of the transcript, we ordered Parra to show cause why the appeal should not be dismissed. From our initial review of the transcript, it appeared that because Parra filed a timely request for findings of fact and conclusions of law, he was required to perfect his appeal within ninety days of the date the trial court signed the judgment. See Tex.R.App. P. 41(a)(1). Accordingly, we determined that Parra’s cost bond, cash deposit, or affidavit in lieu thereof was due on March 20, 1997. Although his affidavit of inability was timely filed on January 7, 1997, Parra cannot proceed on the affidavit because the trial court sustained the contests. Because Parra filed no other perfecting instrument, we ordered him to show cause why the appeal should not be dismissed.

In his response to our show cause order, Parra asserted that he does not have the financial resources to post a bond and that he borrowed the money to pay for the statement of facts. He requested that we waive the remaining costs of the appeal or allow him to pay for a cost bond in installments equal to his income. Although we do not have the authority to grant the relief requested by Parra, we construed his affidavit of inability as a timely and bona fide attempt to invoke this court’s jurisdiction. We therefore ordered Parra either to file a supplemental transcript containing a proper cost bond or certificate of cash deposit or to show cause why the appeal should not be dismissed for failure to comply with our order.

Parra filed a response to the show cause order in which he argues that he did not receive the required notice of the hearing on the affidavit. As of this date, he still has not filed a cost bond or a certificate of cash deposit.

United States Fire filed a motion requesting that we reconsider our show cause order and dismiss the appeal. It argues that Parra’s request for findings of fact and conclusions of law did not extend the appellate timetable and that this appeal should be dismissed because Parra did not file a proper perfecting instrument within the time prescribed by the appellate rules.

Discussion

1. Findings of Fact and Conclusions of Law

*2 United States Fire argues that because the trial court’s decision was rendered without an evidentiary hearing, Parra’s request for findings of fact and conclusions of law did not extend the appellate timetable. We agree.

In a case tried without a jury, any party may file a request for findings of fact and conclusions of law within twenty days after the judgment is signed. Tex.R. Civ. P. 296. When no request for findings of fact and conclusions of law is filed, a perfecting instrument must be filed within thirty days after the judgment is signed. See Tex.R.App. P. 41(a)(1). But when such a request is filed, the perfecting instrument must be filed within ninety days after the judgment is signed. Id. Similarly, a timely request for findings of fact and conclusions of law extends the time for filing the record on appeal from sixty to one-hundred-twenty days after the judgment is signed. See  Tex.R.App. P. 54(a). Importantly, however, a request for findings of fact and conclusions of law only extends the appellate deadlines for cases in which the findings and conclusions would serve a purpose. See IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440, 443 (Tex.1997). In IKB, the court held 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, where findings and conclusions can have no purpose and should not be requested, made, or considered on appeal.” Id. In particular, the court listed “any judgment rendered without an evidentiary hearing” as an example of a judgment for which findings of fact and conclusions of law have no purpose. Id. In a case decided the same day as IKB, the court held that the same rule applies in determining the deadline for filing the appellate record under Rule 54(a). See Phillips v. Beavers, 938 S.W.2d 446, 447 (Tex.1997).

Parra’s petition in the trial court sought judicial review of the Appeals Panel’s decision. The court conducted its review under the substantial evidence standard. See Tex. Lab.Code Ann. § 410.255 (Vernon 1996). Under this standard, the trial court does not engage in fact-finding. Rather, fact-finding is the administrative agency’s duty. See Texas State Bd. of Dental Exam’rs v. Sizemore, 759 S.W.2d 114, 117 (Tex.1988), cert. denied, 490 U.S. 1080 (1989). The trial court’s duty is to determine whether a reasonable basis exists in the record for the action taken by the agency. See El Paso v. Public Util. Comm’n, 883 S.W.2d 179, 185 (Tex.1994). In accordance with this duty, the trial court based its decision in this case on the record before the Appeals Panel and did not conduct an evidentiary hearing. Therefore, under IKB, findings of fact and conclusions of law would serve no purpose. See 938 S.W.2d at 443. Parra’s request for findings of fact and conclusions of law thus did not extend the appellate timetable. See id.

*3 Because the appellate timetable was not extended, Parra’s perfecting instrument was due within thirty days after December 20, 1996, the date the judgment was signed, and the record on appeal was due within sixty days after December 20, 1996. Accordingly, the perfecting instrument was due on January 21, 1997, and the record on appeal was due on February 18, 1997. Parra filed his affidavit of inability to pay costs of appeal on January 7, 1997. The affidavit thus was timely. We received the statement of facts on February 5, 1997. It, too, was timely. We did not receive the transcript, however, until April 9, 1997. The transcript therefore was not timely.

The rules of appellate procedure allow this court to grant an extension of time to file the transcript if the appellant files a motion requesting an extension of time within fifteen days after the last date for filing the transcript. See Tex.R.App. P. 54(c). If the appellant does not file a motion for extension of time, we have no authority to consider a late-filed transcript. See Tex.R.App. P. 54(a). Although an untimely transcript does not affect our jurisdiction, it constitutes a ground for dismissing the appeal. Id.; Strut Cam Dimensions, Inc. v. Sutton, 896 S.W.2d 799, 802 (Tex.App.-Corpus Christi 1995, writ denied) (op. on reh’g). Here, Parra did not file a motion for extension of time. Therefore, we have no authority to consider the transcript and may dismiss the appeal.

2. Parra’s Response to the Show Cause Order

The supreme court has held that a court of appeals has jurisdiction over an appeal when the appellant files an instrument in a bona fide attempt to invoke the court’s jurisdiction. See Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex.1991). Accordingly, an appellant should be given the opportunity to amend a defective cost bond, cash deposit, or affidavit of inability, or to substitute a proper perfecting instrument. See id.; Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex.1994). Here, Parra invoked appellate jurisdiction by filing a timely affidavit of inability. But he cannot proceed on the affidavit because the trial court sustained the contests to that instrument. We therefore gave him an opportunity to substitute a proper perfecting instrument or to show cause why his appeal should not be dismissed for failure to file a proper perfecting instrument.

As noted above, Parra has not filed a proper perfecting instrument. Instead, he challenges the trial court’s order sustaining the contests by asserting that he did not receive the required notice of the hearing on the affidavit. This response is inadequate to satisfy our show cause order. An appellant may challenge a trial court’s decision sustaining a contest of an affidavit of inability by seeking mandamus review or by attacking the decision in a point of error after filing another perfecting instrument. See Allred v. Lowry, 597 S.W.2d 353, 355 (Tex.1980); Lewelling v. Lewelling, 774 S.W.2d 801, 805 (Tex.App.-El Paso 1989), rev’d on other grounds, 796 S.W.2d 164 (Tex.1990). Parra has not followed either of these procedures. Accordingly, his arguments regarding the order sustaining the contests are not properly before us. Because Parra has neither filed a proper perfecting instrument, nor shown cause why his appeal should not be dismissed for failure to do so, the appeal is subject to dismissal under the terms of our show cause order. See  Tex.R.App. P. 60(a)(2).¹ Moreover, as discussed above, Parra’s failure to file the transcript on time also provides a basis for dismissing the appeal. See Tex.R.App. P. 54(a). For these reasons, the appeal is dismissed.

	Footnotes
1		United States Fire requests that we reconsider our decision to give Parra an opportunity to file a proper perfecting instrument. It notes that the rules of appellate procedure allow an appellant to file a proper perfecting instrument within ten days after a contest to an affidavit of inability is sustained. See Tex.R.App. P. 41(a)(2). United States Fire argues that we therefore should not have given Parra an additional opportunity to file a proper perfecting instrument because he already had such an opportunity and failed to take advantage of it. Because Parra did not file a proper perfecting instrument after we gave him an opportunity to do so, we need not decide whether Parra was entitled to that additional opportunity.