Opinion
04-24-00666-CV
12-05-2024
IN THE INTEREST OF B.C.A., R.G.A., AND J.J.A., Children
From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 2023-PA-00615 Honorable Charles E. Montemayor, Judge Presiding
ORDER
PER CURIAM
This is an accelerated appeal of an order terminating appellant B.A.'s parental rights which must be disposed of by this court within 180 days of the date the notice of appeal is filed. Tex. R. Jud. Admin. 6.2. On November 25, 2024, we abated this appeal and remanded this matter to the trial court for appointment of new appellate counsel to represent B.A.
On November 26, 2024, B.A.'s appointed trial counsel contacted this court by telephone and reported that B.A. is deceased. In response to an inquiry from this court, the trial court clerk noted that on October 4, 2024, appellee the Texas Department of Family and Protective Services filed a motion in the trial court representing that B.A. died on September 29, 2024. The October 4, 2024 motion is included in the clerk's record currently before this court.
"If a party to a civil case dies after the trial court renders judgment but before the case has been finally disposed of on appeal, the appeal may be perfected, and the appellate court will proceed to adjudicate the appeal as if all parties were alive." Tex.R.App.P. 7.1(a)(1). "However, Rule 7.1 does not dispense with the requirement of an existing actual controversy and generally an appeal will be allowed to proceed on the death of a party only if the judgment affects the parties' property rights as opposed to purely personal rights." In re S.R.F., No. 04-21-00049-CV, 2021 WL 3742680, at *1 (Tex. App.-San Antonio Aug. 25, 2021, pet. denied) (mem. op.) (internal quotation marks omitted). "Conservatorship and possessory rights regarding children are considered personal rights; thus, the death of a party during an appeal of an order concerning child custody will generally moot the appeal." Id. at *2 (dismissing father's appeal from termination order as moot when father died during the appeal).
The judgment at issue in this case terminated B.A.'s parental rights to his children, but it does not appear to contain any provisions that affected B.A.'s property rights. Accordingly, we LIFT our November 25, 2024 abatement and ORDER B.A.'s appointed trial counsel, Mr. Wayne Ted Wood, and the Texas Department of Family and Protective Services to file, by December 16, 2024, either: (1) a motion to dismiss this appeal as moot; or (2) a response explaining why the appeal should not be dismissed as moot. In light of the unique circumstances presented by this case, Mr. Wood and the Department may confer with one another and file a joint motion or response signed by both Mr. Wood and the Department's counsel.
It is so ORDERED.