APPELLANT

APPELLEE

PER CURIAM

Appellee Pecos County, Texas, has filed a motion and supplemental motion to dismiss appellant Bettye Warnock's appeal for want of jurisdiction. Based on the supreme court's decision in Linwood v. NCNB Texas, we will grant the motions. 38 Tex. Sup. Ct. J. 30 (Oct. 13, 1994).

The trial court in this cause signed a take-nothing summary judgment against Warnock on May 19, 1994. Within twenty days after the judgment was signed, Warnock filed a request for findings of fact and conclusions of law. Warnock relied on her request for findings as extending the appellate timetable and filed an appeal bond on August 15. The deadline to perfect an appeal under the ordinary timetable expired on June 20. Tex. R. App. P. 41(a)(1).

In Linwood, as in this case, the appellant filed a request for findings and conclusions after suffering a summary judgment. The supreme court held that, because findings of fact and conclusions of law have no place in a summary-judgment proceeding, a request for findings after such a judgment does not extend the time to perfect appeal. 38 Tex. Sup. Ct. J. at 30; see also Besing v. Moffitt, 882 S.W.2d 79, 82 (Tex. App.--Amarillo 1994, no writ hist.); Zimmerman v. Robinson, 862 S.W.2d 162, 164 (Tex. App.--Amarillo 1993, no writ).

Warnock argues that her request for findings of fact and conclusions of law constitutes a bona fide attempt to invoke this Court's jurisdiction. See Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813 S.W.2d 499, 500 (Tex. 1991). Grand Prairie requires an appellate court to allow an amendment when the appellant files the wrong instrument required to perfect appeal. Id. Although a request for findings of fact can be a step in the process of perfecting an appeal, it is not a type of instrument required to perfect an appeal. Besing, 882 S.W.2d at 82. We decline to equate Warnock's request for findings of fact with a defective perfecting instrument.

Because Warnock was required, but failed, to perfect her appeal within thirty days of the trial court's judgment, we grant the motions of Pecos County, Texas, and dismiss her appeal for want of jurisdiction.

Before Justices Powers, Aboussie and B. A. Smith

Dismissed for Want of Jurisdiction on Appellee's Motions

Filed: November 16, 1994

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