in the Estate of Rafael Franco, Sr.

• Court: Court of Appeals of Texas
• Decided: September 28, 2015
• Docket: 13-15-00376-CV
• Status: Published

Opinion

NUMBER 13-15-00376-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE ESTATE OF RAFAEL FRANCO, SR., DECEASED

On appeal from the County Court at Law No. 1 of Nueces County, Texas.

ORDER OF ABATEMENT Before Justices Garza, Benavides, and Longoria Order Per Curiam

Appellant, Javier R. Franco, appeals from an order to probate the last will and

testament of Rafael Franco, Sr., deceased, as a muniment of title. Appellant proceeds

pro se and is incarcerated. Appellant has filed a motion for appointment of counsel and

an application to proceed in forma pauperis.

Texas has statutorily provided for appointed counsel in juvenile delinquency cases,

in parental termination cases, and in cases in which application for court-ordered mental

health services has been made. Gibson v. Tolbert, 102 S.W.3d 710, 712–13 (Tex. 2003). The Texas Legislature has also provided for the possibility of appointed counsel

in other civil matters by conferring upon a district court judge the discretion to “appoint

counsel to attend to the cause of a party who makes an affidavit that he is too poor to

employ counsel to attend to the cause.” TEX. GOV’T CODE ANN. §24.016 (West, Westlaw

through 2013 C.S.); see Gibson, 102 S.W.3d at 712. Under exceptional circumstances,

“the public and private interests at stake [may be] such that the administration of justice

may best be served by appointing a lawyer to represent an indigent civil litigant.”

Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996).

Accordingly, we now ABATE this appeal and REMAND the cause to the trial court

for further proceedings. Upon remand, the trial court shall immediately cause notice of

a hearing to be given and, thereafter, conduct a hearing to determine the following:

1. Whether appellant desires to prosecute this appeal;

2. Whether appellant is indigent;

3. Whether appellant is entitled to a free appellate record due to his indigency;

4. Whether appellant is entitled to appointed counsel; and,

5. What orders, if any should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeal if appellant does not desire to prosecute this appeal, or if appellant desires to prosecute this appeal, to assure that the appeal will be diligently pursued.

If the trial court determines that appellant does want to continue the appeal and

that appellant is indigent and entitled to court-appointed counsel, the trial court shall

appoint counsel to represent appellant in this appeal. If counsel is appointed, the name,

2 address, telephone number, email address, and state bar number of said counsel shall

be included in an order appointing counsel.

The trial court shall cause its findings and recommendations, together with any

orders it may enter regarding the aforementioned issues, to be included in a supplemental

clerk's record. Furthermore, the trial court shall cause a supplemental reporter's record

of any proceedings to be prepared. The supplemental clerk's record and supplemental

reporter's record, if any, shall be filed with the Clerk of this Court on or before the

expiration of thirty days from the date of this order.

It is so ORDERED.

PER CURIAM

Delivered and filed the 28th day of September, 2015.