Myrna K. Sparkman v. Roy E. Murray

• Court: Court of Appeals of Texas
• Decided: October 26, 2010
• Docket: 03-09-00565-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-10-00241-CV

Keri Lynn Smith, Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 340TH JUDICIAL DISTRICT NO. C-08-0251-CPS, HONORABLE JAY K. WEATHERBY, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant filed her notice of appeal on April 28, 2010, and the clerk’s record was

filed on May 27. On May 25, we were informed that Rosemary Rose had been appointed to

represent appellant on appeal. On June 28, we sent notice that the reporter’s record was overdue,

and on July 7, the court reporter informed us that she had not been contacted to prepare the record,

nor had payment arrangements been made. On July 19, we sent Rose notice that the record was

overdue, requiring that appellant to make arrangements to pay for the record or otherwise respond

to our inquiry by July 29. We also informed Rose that if we did not receive a response by that date,

we would consider the appeal without the reporter’s record and that the brief would be due August

9. On August 31, after the record was not filed and appellant did not respond to our notice, we sent

Rose notice that her brief was overdue, requiring a response by September 10, and cautioning that

failure to respond would result in our referring the matter to the trial court for a hearing pursuant to rule 38.8(b) of the rules of appellate procedure. See Tex. R. App. P. 38.8(b) (providing that if

counsel for criminal appellant fails to file brief, appellate court should order trial court to conduct

hearing on whether appellant wishes to prosecute appeal, is indigent, or has abandoned appeal); 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)). To date, Rose has not responded

to our inquiries.

We therefore abate the cause and remand it to the trial court, which is instructed to

hold a hearing to determine why no brief has been filed, whether appellant still wishes to appeal, and

whether appellant is indigent. See T.V., 8 S.W.3d at 449-50. If appellant has not abandoned her

appeal, the trial court should remove Rose as appellate counsel and appoint a new attorney to

represent appellant’s interests. The trial court is instructed to arrange for a complete record of the

hearing, along with findings of fact and conclusions of law, to be forwarded to this Court within

45 days of the date of this opinion.

__________________________________________

David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Abated

Filed: October 26, 2010