in the Interest of KRH-B, a Child

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-20-00269-CV

IN THE INTEREST OF KRH-B, A CHILD

From the 220th District Court Hamilton County, Texas Trial Court No. FM06819

ABATEMENT ORDER

We are now at the point in this appeal for briefing on the merits. It has been a

challenge to bring it this far when appellant is in prison and does not have an attorney.

The challenge began with misinterpreting appellant’s attempt to appeal a custody order

for a rehearing in a prior mandamus proceeding by appellant. It moved into difficulties

securing a “reporter’s record” because the trial court recorded the proceeding

electronically rather than using a court reporter to stenographically record the

proceeding. Once we obtained this record in a manner which complied with the Rules

of Appellate procedure, we ordered appellant to request a copy of the appellate record if

he needed it and a briefing schedule would be set. We noted that if appellant did not

request the record, the brief was due in 30 days. Approximately two weeks after this order was issued, appellant notified the Court that his prison address had changed and,

because he had been in a transient state for two and a half months, requested that we

send him any legal documents this Court had sent him in the last three months. This was

the second time appellant had been moved within the prison system within the last three

months.

Early in the process of shepherding this case to the point of briefing on the merits,

appellant requested that we appoint counsel for him. We declined his request because

appellate courts have no jurisdiction to appoint counsel. However, we noted that once

we obtained the appellate record, we might “sua sponte, or on appellant’s motion, abate

the appeal for the trial court to consider whether appointment of counsel is appropriate.”

Recognizing this Court’s difficulty in communicating with appellant and to keep this

appeal proceeding forward, we have reviewed the record, and we believe it is time to

implement the abatement procedure we previously contemplated.

The legislature has authorized courts 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 § 24.016. And specifically, in family law cases, the legislature

has given courts discretion to appoint counsel for indigent parents in private termination

or custody suits. TEX. FAM. CODE § 107.021.

Accordingly, given the unique difficulties in this particular case, we ABATE this

appeal to the trial court to determine whether to appoint counsel to represent appellant

in this appeal. So that the trial court will have sufficient time to bench warrant the

appellant to the proceeding, if the trial court determines that is necessary, this proceeding

In the Interest of KRH-B Page 2 is abated for 28 days. If additional time is needed to consider the motion for the

appointment of counsel previously filed as well as supplemental information filed related

to the motion, if any, the trial court should notify this Court and the abatement period

will be extended.

Before Chief Justice Gray, Justice Johnson, and Justice Smith Order issued and filed December 1, 2021 [RWR]

In the Interest of KRH-B Page 3