Opinion
No. 04-13-00687-CV
11-05-2013
IN THE INTEREST OF T.S.L. A CHILD
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2012-PA-01216
Honorable Charles E. Montemayor, Judge Presiding
ORDER
Appellant appeals the trial court's termination of her parental rights. Appellant's court-appointed attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), in which he asserts there are no meritorious issues to raise on appeal. The brief filed by appellant's court-appointed attorney lacks the signature of the attorney and a certificate of service. See TEX. R. APP. P. 9.1(a); 9.5(d),(e). In addition, appellant's court-appointed attorney has not filed a motion to withdraw.
In In re R.R., No. 04-03-00096-CV, 2003 WL 21157944, at *4 (Tex. App.—San Antonio 2003, no pet.), we held that in parental-termination appeals, a procedure akin to Anders is necessary to best protect the statutory right to counsel on appeal, to provide a procedural mechanism for counsel to fulfill his ethical obligations, to assist the court in deciding appeals, and to provide consistent procedures for all indigent litigants. Here, although appellant's court-appointed attorney has filed a brief in which he attempts to invoke the procedure set out in Anders and R.R., we conclude that he has not fully complied with this procedure.
"[W]hen a court-appointed counsel concludes an appeal in a termination case is frivolous, counsel should file a brief and a motion to withdraw in accordance with the procedure[] specified in Nichols v. State, 954 S.W.2d 83 (Tex. App.—San Antonio 1997, no pet.)." R.R., 2003 WL 21157944, at *4. In Nichols, we explained that "[w]hen an appointed attorney determines there are no nonfrivolous grounds for appeal, the attorney has a duty to request permission to withdraw as counsel." 954 S.W.2d at 85. "The motion to withdraw must also be accompanied by an exhibit showing that counsel provided the appellant with a copy of the Anders brief and informed the appellant that he or she has a right to review the record and file a pro se brief." Id. at 85-86.
Thus, to comply with the procedure set out in Nichols, appellant's court-appointed attorney must (1) file a motion to withdraw, and (2) this motion to withdraw must be accompanied by an exhibit showing that the attorney has provided appellant with a copy of the Anders brief and informed appellant that she has a right to review the record and file a pro se brief. See Nichols, 954 S.W.2d at 85; Bruns v. State, 924 S.W.2d 176, 177 n.1 (Tex. App.—San Antonio 1996, no pet.) ("If a court-appointed attorney determines an appeal to be frivolous, the attorney shall file a motion requesting permission to withdraw. Accompanying that motion shall be an Anders brief and an exhibit showing the attorney sent a copy of the motion and brief to the defendant and informed him of his right to review the record and file a pro se brief.").
We, therefore, ORDER appellant's court-appointed attorney to file a motion to withdraw in accordance with the procedure specified in Nichols no later than seven (7) days from the date of this order. We FURTHER ORDER appellant's court-appointed attorney to file an amended brief containing the attorney's signature and a certificate of service no later than seven (7) days from the date of this order.
______________________
Karen Angelini, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said court on this 5th day of November, 2013.
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Keith E. Hottle
Clerk of Court