COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS RENE ARROYO, Appellant,

v. TEXAS WORKFORCE COMMI SSI ON, AND I TS TECHNOL OGI ES % L OGI STI CS, % TAL X UCM SERVI CES, I NC.—UC EXPRES S, Appellee s. § § § § § § No. 08-11-00059- CV

Appea l from the 346th District Court of El Paso County , Texas (TC# 2010-569)

MEMORAN DUM OP INION This matter is befor e the Court on a motion to dismiss for lack of jurisdiction. We conclude that a reque st for finding s of fac t and conclusions of law does not extend the time for filing a notice of appea l from a judgme nt aff irming the Texas Workforce Commi ssion’s denial of unemploy ment benef its. As a result of t his holding, the notice of appea l in this case was unti mely . We theref ore dismiss the appe al for la ck of jurisdiction. BACK GR OUND Rene Arroy o filed a claim for unem p l o y ment benef

its upon being terminated from his employ ment. The Texas Workfor ce Commi ssion de nied the claim, and Arroy o filed a petition for judicial re v i ew. After conducting an evidentiar y hear ing, the district court deter mined that the Commi ssion’s de cision was supported by substantial e vidence

. The court signe d a final judgme nt aff irming the Commi ssion’s decision on November 9, 2010. Arroy o filed a reque st for finding s of fac t and conclusions of law on November 23, 2010. The district court did not enter any finding s of fac t or conc lusions of law. On F ebrua ry 7, 2011, Arroy o filed a notice of appe al. DISCUSSIO NA notice of appea l is g ener ally due within thirty day s afte r a final judgme nt is signe d, unless

any post-judgme nt motions are filed to extend the deadline. See T E X . R. A P P . P. 26.1(a)

. A timely reque st for finding s of fac t and conclusions of law will extend the deadline to ninety day s from the signing of the judgme nt, if finding s and conclusions “could proper ly be considere d by the appellate court.” T E X . R. A P P . P. 26.1(a)( 4). To deter mine whether finding s and conclusions could proper ly be considere d by an appellate court, it is nece ssary to deter mine the nature of the trial court’s decision. The Texas Supreme Court has stated that finding s and conclusions could proper ly be considere d on appea l from “any judgme nt based in any part on an evidentiar y hear ing.” IK

B In d us. ( Nigeria) Ltd. v. Pro-Line Corp. , 938 S.W .2d 440, 443 (Tex. 1997). On the other hand, “[a] re quest for finding s of fac t a nd conclusions of law d o es n o t extend the time for perf ecting appea l of a judgme nt rende red as a matter of law, wher e finding s and co n cl usions can have no purpose and should not be reque sted, made, or considere d on appea l.” Id. The “substantial evidenc e de novo” standard applies to a district court’s revie w of the Commi ssion’s decision reg arding unemploy ment benef

its. See T E X . L A B . C O D E AN N . § 212.202(a) (West 2006); Merc er v. Ross , 701 S.W .2d 830, 831 (Tex. 1986); Uranga v. Tex. W orkforce Comm’n , 319 S.W .3d 787, 789 (Tex. App. – El Paso 2010, no pet.). Under this standard, the court must deter mine whether there is substantial evidenc e to support th e Co mmissi on’s decision, but in making
t h is deter mination, the court considers the evidenc e prese nted at the trial de novo rathe r than th e

rec ord cre ated by the Commi ssion. Merc er , 701 S.W .2d at 831; see also Uranga , 319 S.W .3d at 789 (“[T]he issue is whether the evidenc e introduced befor e the trial court shows fac ts in exis tence at the time of [t he Commi ssion’s] decision that rea son ab l y support the decision.”)

. The Commi ssion’s decision car

ries a p re s umption of validity , and the revie wing court may not set the decision asidemere ly beca use the court would have rea ched a differ ent conclusion. The decision may be set aside only if it was made without reg ard to the law or the fac ts and was there fore unrea sonable, arbitra ry ,

or ca p ri cious. Merc er , 701 S.W .2d at 831; Uranga , 319 S.W .3d at 789. “Whether [t he Commi ssion’s] decision is supported by substantial evidenc e is strictly a question of law.” Uranga , 319 S.W .3d at 789. As mentioned above, the Texas Supreme Court has indicated that a reque st for finding s and conclusions would extend the appellate timetable from “any judgme nt based in any part on an evidentiar y hear ing.” IKB Indus. , 938 S.W .2d at 443. But such a reque st would not extend the timetable from “ a judg ment rende red a s a matter of law, whe re f

indings a nd conclusions ca

n have

no purpose and should not be reque sted, made, or considere d on appea l.” Id. At first blush, this case

seems to fall within both cate g ories, beca use the district court’s final judgme nt was based in part on the evidenc e pre sented a t the hear ing, but it was a lso render ed as a matter of la

w. The parties have not cited, and we have not found, any authority addre ssing whether a reque st for finding s of fac t and conclusions of law extends the timetable for an appea l from a j udg ment upholding the Commi ssion’s denial of unemploy ment benef

its. Howeve r, other appellate courts have held that it is inappropria te for a trial court to make fac tual finding s and leg al conclusions on revie w of the Commi ssion’s decision. See Madisonville Consol. Indep. Sch. Dist. v. Tex. E mp’t Comm’n , 821 S.W .2d 310, 314 (Tex. App. – Corpus Christi 1991, writ denied) ; Tex. Emp’t Comm’n

v. Lewis , 777 S.W .2d 817, 822 (Tex. App. – For t Worth 1989, no writ); see also Meisner v. T ex . W orkforce Comm’n , No. 05-98-01410- CV, 2000 WL 1751098, at *5 (Tex. App. – Dallas Nov. 29, 2000, pet. denied) (not desig nated for publication); cf. Dallas Cnty. Civil Serv. Comm’n v. W arren , 988 S.W .2d 864, 870 (Tex. App. – San Antonio 1999, no pet.) (holding that the district court err ed in submitt ing the substantial evidenc e issue to the jury ). As one court has explained, “Review underthe substantial evidenc e rule makes findings of fac t unnece ssary beca use t here are no ‘fa cts’ to be found by the court.” Heard v. Incalc aterra , 702 S.W .2d 272, 276 (Tex. App. – Houston [1st Dist.] 1985, writ ref

’d n.r.e.) (re viewing decision of civil se rvice commission under substantial e vidence de novo standa

rd). I t is for the C ommissi on to resolve fac tual conflicts and ambiguities. See id. The revie wing court may not substitut e its judgme nt for that of the Commi ssion on controve rted fac t issues. See id. “The so l e i s s u e fo r t h e district court is not whether the [C ommissi on] came to a proper fac t conclusion, but whether it acted a rbitrar ily and without reg ard to the f acts.” Id. Arroy o arg ues that the standard of revie w should not deter mine w h e th e r a reque st for finding s and conclusions extends the appellate timetable. The Texas Supreme Court has indicated that an appellate court’s standard of revie w is not dispositi v e. See IKB Indus. , 938 S.W .2d at 443. I f it

wer e, a reque st following dismiss al for discovery abuse, as in IKB Industries , would not extend the timetable even though the supreme court has “enc ourag ed trial courts to make these finding s, and
t h ey can be considere d on appea l.” Id. I n this case , the district court’s standard o f re v i ew deter mi n ed the nature of i ts ruling

. Moreove r, we are not awa re of any authority indicating that a district court’s fac tual finding s should be considere d in an appea l from a judgme nt upholding the Commi ssion’s decision. Arroy o also sug g ests that abuse of discretion, rathe r than substantial evidenc e de novo, is the applicable standard of revie w beca use he is challeng ing the Commi ssion’s interpre tation of a statute that purportedly g ave him the rig ht to use self-de fense aga i n st a co-e mploy ee’ s assault. The interpre tation of a statute is an issue of law for which fac tual finding s would be inappropria te. See Tex. De p’t of Transp. v. Needham , 82 S.W .3d 314, 318 (Tex. 2002). The district court’s judgme nt was rende red as a m at t er o f law, such that finding s and conclusions would have no purpose and could not be considere d on appea l. See IKB Indus. , 938S.W .2d at 443. Acc ording ly , Arroy o’s reque st for finding s and conclusions did not ext en d t h e

deadline f or filing the notice of

appea l. We lack jurisdiction over an appea l if t h e n o t i ce o f appea l was not timely

. Salas v. State F a r m Mu t

. A u to. Ins. Co. , 226 S.W .3d 692, 695 (Tex. App. – El Paso 2007, no pet.). Be cause Arroy o’s reque st for finding s of fac t and conclusions of law did not extend the appellate timetable, his notice of appea l was due within thirty day s afte r November 9, 2010--the d at e t h e t ri al court signe d the final judgme nt. Since he did not file his notice of ap p eal until Fe bruar y 7, 2011, the

no t i ce was untimely

. There fore , the Commi ssion’s motion to dismiss for lack of jurisdiction is g rante d. The Commission’s mot ion for extension of time to file its brief is denied a s moot.

GUADA L UPE RI VERA, J ustice J une 15, 2011 Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.