texas-workers-compensation-commission-v-texas-physical-therapy ( 1991 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN







NO. 3-91-439-CV



TEXAS WORKERS COMPENSATION COMMISSION,

APPELLANT

vs.



TEXAS PHYSICAL THERAPY ASSOCIATION, ET AL.,

APPELLEES

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT

NO. 91-10669, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

PER CURIAM

Appellant Texas Workers Compensation Commission seeks to appeal from an order granting a temporary injunction issued by the district court of Travis County on August 29, 1991. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (Supp. 1991). ⁽¹⁾ We will dismiss the appeal for want of jurisdiction.

The Commission filed its notice of appeal on September 19, 1991, beyond the twenty-day period set out in Tex. R. App. P. Ann. 42 (Pamph. 1991). The Commission asserted that its attorney did not acquire knowledge of the signing of the order until September 19, 1991; and, therefore, the notice of appeal was timely. See Tex. R. App. P. Ann. 5(b)(4) (Pamph. 1991). By our order of October 23, 1991, this Court directed the Commission to obtain an order from the trial court with a finding as to the date the Commission or its attorney first received notice or acquired knowledge of the signing of the order. Tex. R. App. P. Ann. 5(b)(5) (Pamph. 1991). We further directed the Commission to file a supplemental transcript, containing such order, in this Court no later than November 22, 1991.

On November 4, 1991, the Commission filed a motion for leave to supplement the record with copies of: (1) a motion to extend the court's plenary power to modify temporary injunction order; (2) a notice of hearing; (3) an order of the district court signed on October 25, 1991, granting the motion to extend; and (4) a nunc pro tunc order. Copies of these documents were attached to the motion as exhibits. This Court granted the motion on November 7, 1991, with a notation that, pursuant to our order of October 23, 1991, the Commission was to file a supplemental transcript on or before November 22, 1991.

To date, the Commission has not filed the supplemental transcript as ordered. The copy of the district court order that was attached to the November 4th motion and includes a finding as to the date the Commission first acquired knowledge of the judgment is not properly part of the record before this Court. We cannot consider items that are not a part of the record on appeal. Nuby v. Allied Bankers Life Ins. Co., 797 S.W.2d 396, 398 (Tex. App. 1990, no writ); Gowan v. Reimers, 220 S.W.2d 331, 336 (Tex. Civ. App. 1949, writ ref'd n.r.e.). Based on the record before the Court, ⁽²⁾ we conclude that we are without jurisdiction over the appeal because the Commission filed its notice of appeal untimely. Cellular Marketing, Inc. v. Houston Cellular Tel. Co., 784 S.W.2d 734, 735 (Tex. App. 1990, no writ); Tober v. Turner of Texas, Inc., 668 S.W.2d 831, 833-34 (Tex. App. 1984, no writ); see generally Davies v. Massey, 561 S.W.2d 799 (Tex. 1978).

The appeal is dismissed for want of jurisdiction.

[Before Chief Justice Carroll, Justices Aboussie and Kidd]

Appeal Dismissed

Filed: December 11, 1991

[Do Not Publish]

1. ¹ Appellees are Texas Physical Therapy Association; and Jerry Hurt, Jeanette Winfree, and Wayne Sawyer, individually and as members of Texas Physical Therapy Association.

2. ²  We note that Tex. Gov't Code Ann. § 22.220(c) (1988) allows an appellate court to "ascertain the matters of fact that are necessary to the proper exercise of its jurisdiction." In this instance, Rule 5(b)(4) and (5) specify the procedure when the date of acquiring knowledge of the signing of an order is at issue.