Marshall S. Hicks v. Texas Health & Human Services Commission ( 2021 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00256-CV
MARSHALL S. HICKS,
Appellant
v.
TEXAS HEALTH AND HUMAN SERVICES COMMISSION,
Appellee
From the 66th District Court
Hill County, Texas
Trial Court No. CV-138-19-DC
MEMORANDUM OPINION
In what appears to be seven issues, appellant, Marshall Shane Hicks, who has
represented himself throughout this proceeding in the trial and appellate courts,
challenges a plea to the jurisdiction granted in favor of appellee, Texas Health and
Human Services Commission (“HHSC”). Because we conclude that Hicks failed to timely
file his notice of appeal in this matter, we grant HHSC’s motion to dismiss.
Hicks filed his pro se original petition alleging numerous complaints involving a
reduction of his Supplemental Nutrition Assistance Program Benefits. HHSC responded
by filing, among other things, a plea to the jurisdiction contending that the suit should be
dismissed for lack of subject-matter jurisdiction because HHSC, as a governmental unit
of the State of Texas, is immune from suit on all claims alleged by Hicks.
On June 6, 2019, the trial court conducted a hearing on HHSC’s plea to the
jurisdiction. At the hearing, although Hicks presented a number of exhibits, the trial
court did not admit any as evidence. The exhibits presented by Hicks were included in
the appellate record, as they should have been for exhibits that are not admitted into
evidence. None of the exhibits presented by Hicks directly addressed any jurisdictional
issues, but rather documented his opening statement, demonstrated his request to
reschedule a hearing before the Texas Health and Human Services Commission, and
included a list of Texas Health and Human Services Commission rules.
On June 7, 2019, the trial court signed a final order granting the State’s plea to the
jurisdiction. On June 21, 2019, Hicks filed a request for findings of fact and conclusions
of law. Hicks filed his notice of appeal on August 2, 2019.
On August 27, 2019, HHSC filed a motion to dismiss Hicks’s appeal. Hicks filed a
motion to stay appellate proceedings. This Court granted Hicks’s motion to stay
appellate proceedings pending resolution of HHSC’s motion to dismiss and requested
that Hicks respond to HHSC’s motion to dismiss. In his response to HHSC’s motion to
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dismiss, Hicks does not complain about the trial court’s refusal to admit any of the
exhibits presented at the June 7, 2019 hearing.
As noted above, the trial court granted the State’s plea to the jurisdiction on June
7, 2019. Pursuant to Texas Rule of Appellate Procedure 26.1, Hicks’s notice of appeal was
due within thirty days of June 7, 2019. See TEX. R. APP. P. 26.1. In his response, Hicks
contends that the deadline to file his notice of appeal was extended to within ninety days
of June 7, 2019, because he timely filed a request for findings of fact and conclusions of
law. See id. at R. 26.1(a)(4). Rule 26.1(a) provides an extension to ninety days if any party
timely files:
(1) a motion for new trial;
(2) a motion to modify the judgment;
(3) a motion to reinstate under Texas Rule of Civil Procedure 165a; or
(4) a request for findings of fact and conclusions of law if findings and
conclusions either are required by the Rules of Civil Procedure or, if not
required, could properly be considered by the appellate court . . . .
Id. at R. 26.1(a).
Because we analyze a plea to the jurisdiction under the rubric of a summary
judgment, see Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004),
findings of fact and conclusions of law are not proper. See IKB Indus. (Nigeria) Ltd. v. Pro-
Line Corp., 938 S.W.2d 440, 441 (Tex. 1997); see also Linwood v. NCNB Tex., 885 S.W.2d 102,
103 (Tex. 1994) (per curiam). This is because there has been no conventional trial on the
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merits. See IKB Indus. (Nigeria) Ltd., 938 S.W.2d at 441; see also Linwood, 885 S.W.2d at 103.
In the context of a plea to the jurisdiction, findings of fact are superfluous. See Schmitz v.
Denton County Cowboy Church, 550 S.W.3d 342, 352 (Tex. App.—Fort Worth 2018, pet.
denied) (citation omitted). Thus, when judgment is rendered as a matter of law, such as
in a plea to the jurisdiction, findings and conclusions serve no purpose. IKB Indus.
(Nigeria) Ltd., 938 S.W.2d at 443. As the Texas Supreme Court has stated,
[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. Examples are summary judgment . . . and
any judgment rendered without an evidentiary hearing.
Id.
The trial court did not admit any evidence at the June 6, 2019 hearing on HHSC’s
plea to the jurisdiction. Therefore, Hicks cannot use his June 21, 2019 request for findings
of fact and conclusions of law to extend the appellate deadlines under Rule 26.1(a)(4). See
id.; see also TEX. R. APP. P. 26.1(a)(4); Linwood, 885 S.W.2d at 103. Because Rule 26.1(a)(4)
does not apply to extend the time in which to file his notice of appeal, and because Hicks
did not file his notice of appeal within thirty days of the trial court’s June 7, 2019 order
granting HHSC’s plea to the jurisdiction, we conclude that Hicks’s notice of appeal is
untimely and, thus, deprives this Court of jurisdiction over the appeal. See TEX. R. APP.
P. 26.1; see also Wilkins v. Methodist Health Care Sys., 160 S.W.3d 559, 563 (Tex. 2005)
(holding that, absent a timely notice of appeal, this Court is without jurisdiction to
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consider an appeal). We therefore grant the State’s motion to dismiss and dismiss Hicks’s
appeal.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson,
and Justice Rose 1
Motion granted; appeal dismissed
Opinion delivered and filed August 11, 2021
[CV06]
1The Honorable Jeff Rose, Former Chief Justice of the Third Court of Appeals, sitting by assignment of the
Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.
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