Richard Terrance Ayers v. Vicki Barrow, Hazelle Davis, Rick Thaler, and the TDCJ-CID

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-10-00479-CV

RICHARD TERRANCE AYERS APPELLANT

V.

VICKI BARROW, HAZELLE DAVIS, APPELLEES RICK THALER, AND THE TDCJ-CID

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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

MEMORANDUM OPINION1 ----------

Appellant Richard Terrance Ayers attempts to appeal from the trial court’s

order dated September 10, 2010, in which the trial court dismissed Ayers’s civil

rights complaint with prejudice after reviewing the pleadings on file “upon its own

motion.”

1 See Tex. R. App. P. 47.4. Ayers filed a request for findings of fact and conclusions of law on October

22, 2010, which was untimely. See Tex. R. Civ. P. 296. However, even if his

request had been timely, because in this case findings of fact and conclusions of

law were not required by the rules of civil procedure and could not properly be

considered by this court, his request would not have operated to extend the

thirty-day deadline for filing his notice of appeal. See Tex. R. App. P. 26.1(a)(4);

IKB Indus. (Nigeria) Ltd. 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, where

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

made, or considered on appeal [such as] . . . dismissal based on the pleadings”).

Therefore, Ayers’s notice of appeal was due on October 11, 2010. See Tex. R.

App. P. 26.1.

Ayers filed his notice of appeal on December 27, 2010. On December 28,

2010, we notified Ayers that his appeal was subject to dismissal for want of

jurisdiction unless, by January 7, 2011, he filed a response showing grounds for

continuing the appeal. Ayers filed a response, but it does not show grounds for

continuing the appeal. Accordingly, we dismiss this appeal for want of

jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).

2 PER CURIAM

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DELIVERED: January 27, 2011