Opinion
No. 10–18–00061–CV
05-30-2018
In the MATTER OF J.L.C., a Juvenile
Attorney(s) for Appellant/Relator: Curt W. Crum, Attorney at Law, Cleburne TX. Attorney(s) for Appellees/Respondents: Bill Moore, County Attorney for Johnson County, Cleburne, TX.
Attorney(s) for Appellant/Relator: Curt W. Crum, Attorney at Law, Cleburne TX.
Attorney(s) for Appellees/Respondents: Bill Moore, County Attorney for Johnson County, Cleburne, TX.
Before Chief Justice Gray, Justice Davis and Justice Scoggins
ORDER
PER CURIAM This is a juvenile proceeding in which appellant's counsel has determined there is no arguable issue with merit to raise on appeal and seeks to withdraw from his appointed representation. Because there are relatively few reported cases dealing with this procedure and process, we do not fault counsel for the failure noted herein but nevertheless, take this opportunity to provide guidance applicable to this situation. The Anders procedure has been made applicable to juvenile proceedings. In re D.A.S. , 973 S.W.2d 296, 299 (Tex. 1998) (orig. proceeding). The Anders procedure must, however be modified to fit the civil procedure applicable to such proceedings.
Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Appellant's counsel filed an Anders brief on April 10, 2018. Because the Court has neither the time nor the resources to check every brief as it is filed, the Court was unaware that the brief filed by appellant's counsel was an Anders brief. In response to the filing of the brief, and after the time for filing the State's brief had passed, the Court sent a notice to the State that its brief was past due. The State responded and brought to the Court's attention that appellant's brief was an Anders brief and no response was due unless and until appellant had filed a response. Also, a "Motion to Withdraw as Counsel" was then filed on May 16, 2018 which effectively communicated the same information from appellant's counsel.
We have suggested that in criminal appeals, a notice of filing an Anders brief serves to alert the Court that a different procedure is needed rather than the process used for regular appeals. See Sowels v. State , 45 S.W.3d 690, 693 (Tex. App.—Waco 2001, no pet.), overruled in part on other grounds , Meza v. State , 206 S.W.3d 684, 689 (Tex. Crim. App. 2006).
We acknowledge that an Anders brief is a concept borrowed from criminal case law for use in appeals of juvenile cases which are civil proceedings yet quasi-criminal in nature. Because of the difference in rules and statutes, not every aspect of Anders procedures will apply in this type of case.
We have not, at this time, dispensed with the requirement to file a motion to withdraw in appeals of juvenile proceedings, in light of the Texas Supreme Court's decision in In the Interest of P.M. , 520 S.W.3d 24 (Tex. 2016, order) a termination-of-parental-rights appeal, as at least one Texas appellate court has done. See In re D.T. , No. 02-17-00061-CV, 2017 WL 2806323, 2017 Tex. App. LEXIS 5963 (Tex. App.—Fort Worth June 29, 2017, no pet.) (mem. op.).
Although the substance of the brief appears adequate, the brief and the motion to withdraw with its accompanying correspondence do not provide the Court with an adequate basis to determine that counsel has complied with the necessary procedures when filing an Anders brief in an appeal of a juvenile proceeding.
Based on counsel's certification included in his motion to withdraw, the Court is unable to determine if counsel has fulfilled each of the four educational burdens when filing a motion to withdraw and accompanying Anders brief. Meza v. State , 206 S.W.3d 684, 689 n. 23 (Tex. Crim. App. 2006). As explained in Sowels v. State , 45 S.W.3d 690, 694 (Tex. App.—Waco 2001, no pet.), overruled in part on other grounds , Meza v. State , 206 S.W.3d 684, 689 (Tex. Crim. App. 2006), so that the Court may comply with its duties, the record must be sufficient to support a determination that:
1. counsel has provided appellant with a copy of the motion to withdraw and the brief in support of the motion;
2. counsel has informed appellant of the right to file a response to the motion to withdraw;
3. counsel has informed appellant of the right to review the record in making the response; and
4. counsel has informed appellant of the right to file a petition for review with the Texas Supreme Court (rather than a petition for discretionary review with the Court of Criminal Appeals as in criminal cases).
See Meza , 206 S.W.3d at 689 n. 23. These educational burdens may be accomplished by providing the Court with a copy of the actual communication of this information to appellant (while avoiding disclosure of privileged information) or a separate certification. See Sowels , 45 S.W.3d at 693–694.
In this proceeding, counsel elected to use the certification; but it only addresses educational burdens 1 and 2. Thus, counsel's duty to comply with educational burdens 3 and 4 remains unsatisfied. We cannot commence the running of time for appellant to file a response until appellant has been advised of the right to review the record and how to obtain it. See Stanley v. State , 523 S.W.3d 122 (Tex. App.—Waco 2015, order).
Additionally, it appears that the motion to withdraw was taken from a different case and was not appropriately tailored to this specific appeal.
Moreover, because this is a juvenile case, both the juvenile and his parent or guardian must be provided copies of the relevant documents and notices. In re D.A.S. , 973 S.W.2d 296, 299 (Tex. 1998) (orig. proceeding). Counsel has not provided the necessary information for the Court to determine that counsel has provided a copy of the motion to withdraw and a copy of the brief to appellant and to his parent or guardian or properly informed appellant and his parent or guardian of the right to review the appellate record, how to obtain a copy of the record for that review, and the right to file a response should appellant, through his parent or guardian, desire to do so.
Accordingly, the Motion to Withdraw as Counsel, filed on May 16, 2018, must be amended to correct the issues noted herein, be tailored to this proceeding, contain the contents necessary for the Court to determine compliance with counsel's "educational burdens," and be properly served. Counsel is Ordered to file an amended motion to withdraw within 21 days from the date of this letter. If an amended motion to withdraw is not filed, this appeal will be abated to the trial court for further proceedings.