in the Matter of B. M. ( 2018 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: In the Matter of B.M.
Appellate case number: 01-18-00898-CV
Trial court case number: 18-CJV-021629
Trial court: County Court at Law No. 2 of Fort Bend County
Appellant, B.M., has filed a notice of appeal of the trial court’s “Waiver of
Jurisdiction and Order of Transfer to a Criminal District Court Pursuant to Texas Family
Code Section 54.02(a).”1 See TEX. FAM. CODE ANN. §§ 54.02, 56.01(a), (c)(1)(A)
(Vernon 2014 & Supp. 2018). Appellant has a statutory right to representation by
counsel on appeal and the “appointment of an attorney for the appeal if an attorney
cannot be obtained because of indigency.” Id. § 56.01(d)(2), (3); see also In re D.A.S.,
973 S.W.2d 296, 298 (Tex. 1998) (orig. proceeding). When a juvenile court appoints
counsel, that counsel must continue to represent the child “until the case is terminated,
the family retains an attorney, or a new attorney is appointed by the juvenile court.” TEX.
FAM. CODE ANN. § 51.101 (Vernon Supp. 2018).
The juvenile court determined that appellant is indigent and appointed Ralph
Gonzalez to represent appellant in the juvenile court proceedings. See id. § 56.01(d)(2).
Gonzalez timely filed a notice of appeal of the trial court’s order on appellant’s behalf.
In this Court, Gonzalez has filed a motion to withdraw as counsel for appellant, stating
that “Brian Middleton was appointed as the appellate attorney for [appellant].” And, a
docket sheet notation, signed by the juvenile court, reflects that Brian Middleton was
appointed to represent appellant on appeal. He, however, has not filed a brief on
appellant’s behalf or otherwise appeared in the appeal.
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This Court is required to bring the appeal to final disposition within 180 days of October
3, 2018, the date the notice of appeal was filed, so far as reasonably possible. See Order
Accelerating Juvenile Certification Appeals and Requiring Juvenile Courts to Give
Notice of the Right to an Immediate Appeal, Misc. Docket 15-9156 (Tex. Aug. 28, 2015).
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Accordingly, we abate the appeal and remand the case to the juvenile court for
further proceedings. The juvenile court is directed to immediately determine (1) whether
Ralph Gonzalez may withdraw from representation of appellant, and (2) whether Brian
Middleton may continue to represent appellant on appeal or should be allowed to
withdraw from representing appellant.2 If counsel is permitted to withdraw, the trial
court shall appoint new counsel to represent appellant on appeal. See id. §56.01(d)(2),
(3).
The trial court clerk shall file a supplemental clerk’s record containing any written
findings of fact and conclusions of law regarding these issues, orders permitting
appointed counsel to withdraw and appointing new counsel, and any other appropriate
orders. The supplemental clerk’s record shall be filed with the Clerk of this Court
no later than 14 days from the date of this order.
It is so ORDERED.
Judge’s signature: ___/s/ Terry Jennings_____
Acting individually
Date: ____December 20, 2018____
2
Brian Middleton has been elected Fort Bend District Attorney, with his term of office to
begin January 1, 2019.
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