Mary Ayala v. Texas Department of Family and Protective Services

• Court: Court of Appeals of Texas
• Decided: October 20, 2011
• Docket: 03-10-00445-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00445-CV

Mary Ayala, Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT NO. D-1-FM-08-006383, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING

MEMORANDUM OPINION

The clerk’s record containing appellant Mary Ayala’s notice of appeal was filed on

July 19, 2010, and the reporter’s record was filed on July 27, 2011. Appellant’s brief was therefore

due on August 16, 2011. See Tex. R. App. P. 38.6(a). On August 30, we sent counsel notice that

the brief was overdue, stating that if we did not receive a response by September 9, we would abate

the case for a hearing pursuant to rule 38.8. See id. R. 38.8(b). To date, counsel has not responded

and the brief has not been filed.

The appeal is therefore abated. The trial court shall conduct a hearing to determine

whether appellant still wishes to pursue her appeal, whether appellant is indigent, and whether

counsel has abandoned the appeal. See Tex. R. App. P. 38.8(a)(2); In re T.V., 8 S.W.3d 448, 449-50

(Tex. App.—Waco 1999, order) (holding that to adequately protect indigent parent’s rights in

termination case, court should abate appeal to allow trial court to hold hearing to determine issues raised in Tex. R. App. P. 38.8(b)); see also Tex. R. App. P. 38.8(b). The court shall make

appropriate findings and recommendations, and a supplemental record from this hearing, including

copies of all findings and orders and a transcription of the court reporter’s notes, shall be forwarded

to the clerk of this Court no later than November 14, 2011. See Tex. R. App. P. 38.8(b)(3).

__________________________________________

David Puryear, Justice

Before Justices Puryear, Rose and Goodwin

Abated

Filed: October 20, 2011