in Re Commitment of Richard Garcia

• Court: Court of Appeals of Texas
• Decided: December 5, 2013
• Docket: 09-13-00235-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-13-00235-CV ____________________

IN RE COMMITMENT OF RICHARD GARCIA

_______________________________________________________ ______________

On Appeal from the 435th District Court Montgomery County, Texas Trial Cause No. 12-10-10400 CV ________________________________________________________ _____________

ORDER

On May 15, 2013, Richard Garcia’s retained counsel, Scott Pawgan, filed a

notice of appeal on behalf of the appellant. The appellant failed to make payment

arrangements for the reporter’s record. On August 29, 2013, we notified the

parties that appeal would be submitted on the clerk’s record alone. We issued a

late brief notice on November 7, 2013. On November 27, 2013, appellate counsel

filed a motion to withdraw. Some of the required information has been omitted

from the motion. See Tex. R. App. P. 6.5 (a)(2)-(4), (b); see also Tex. R. App. P.

10.1 (a)(5). On November 27, 2013, counsel filed a motion to abate the appeal for

1 a determination of the appellant’s indigence. No affidavit of indigence has been

filed. See Tex. R. App. P. 20.1 (a)(2). Garcia has a statutory right to counsel. See

Tex. Health & Safety Code Ann. § 841.144 (West 2010).

It is, therefore, ORDERED that the appeal is abated and the case is

remanded to the trial court for a hearing at which a representative of the State,

counsel for the appellant, and the appellant shall be present in person. The trial

court shall determine why counsel for the appellant failed to obtain and file an

affidavit of indigence from his client and why counsel failed to communicate with

the Court of Appeals before the deadlines for filing the record and the appellant’s

brief expired. The trial court shall determine whether counsel should be permitted

to withdraw. If the trial court permits counsel to withdraw, the trial court shall

determine whether the appellant is indigent. See Tex. R. App. P. 20.1(b). If the

appellant is indigent, the trial court shall appoint counsel and order that the

reporter’s record be prepared without prepayment from the appellant personally.

See Tex. Health & Safety Code Ann. §§ 841.005, 841.146(c) (West 2010).

The record of the hearing, including any orders and findings of the trial

court, shall be filed with the Court of Appeals on or before January 6, 2014.

ORDER ENTERED December 5, 2013. PER CURIAM

Before McKeithen, C.J., Kreger and Horton, JJ. 2