Gary Reed Walp v. Dr. Lance Hayes, et al.--Appeal from 74th District Court of McLennan County

1

IN THE

TENTH COURT OF APPEALS

No. 10-96-221-CV

GARY REED WALP,

Appellant

v.

DR. LANCE HAYES, ET AL.,

Appellees

From the 74th District Court

McLennan County, Texas

Trial Court # 96-433-3

MEMORANDUM OPINION

Gary Walp, an inmate, sued Dr. Lance Hayes and others via an in forma pauperis petition for rescinding their earlier agreement to accept him as a student at Texas State Technical College in Waco. Walp attempts to appeal from an adverse summary judgment. See Tex. R. Civ. P. 166a. Because Walp failed to properly perfect his appeal, we will dismiss for want of jurisdiction.

The court signed the summary judgment order on July 10, 1996. On July 26 Walp filed a request for findings of fact and conclusions of law, which, following Walp's August 22 filing of notice of past due findings of fact and conclusions of law, was overruled by operation of law on September 4. In an apparent attempt to perfect his appeal, Walp on September 23 filed an affidavit of inability to pay costs. The transcript was filed in this court on October 4.

On November 19, appellees filed a motion to dismiss Walp's appeal. In the motion appellees contended that Walp's request for findings of fact and conclusions of law was ineffective to extend the appellate timetable and, as a result, Walp was required under Rule of Appellate Procedure 41(a)(1) to perfect his appeal by August 9. See Tex. R. App. P. 41(a)(1). In a response filed December 2, Walp conceded that the only document he filed which could have possibly extended the appellate timetable was his request for findings of fact and conclusions of law, but that such request was nevertheless sufficient to extend the timetable under the Rules of Appellate Procedure.

In Linwood v. NCNB of Texas, the Texas Supreme Court held that the filing of a request for findings of fact and conclusions of law in a summary judgment case does not extend the appellate timetable. 876 S.W.2d 393, 395 (Tex. 1994). Therefore, without the benefit of an extended timetable, Walp's affidavit of inability to pay costs was due on August 9. Tex. R. App. P. 41(a)(1). He did not file it until September 23. Thus, Walp failed to timely perfect his appeal, and this court, consequently, does not have jurisdiction over the cause. Linwood, 876 S.W.2d at 395-96. //

Walp's appeal is dismissed for want of jurisdiction.

PER CURIAM

Before Chief Justice Davis

Justice Cummings and

Justice Vance

Dismissed for want of jurisdiction

Opinion delivered and filed December 11, 1996

Do not publish