Opinion
01-23-00836-CV
02-22-2024
In the matter E. L.
313th District Court of Harris County, Trial court case number: 2023-00735J
ORDER
Sarah Beth Landau, Judge
After this appeal was set for submission on February 28, 2024, appellant E.L.V., a juvenile, filed a voluntary motion to dismiss the appeal. Because it appears appellant no longer desires to appeal, this appeal is withdrawn from submission. However, appellant's voluntary motion to dismiss is denied without prejudice to refiling.
The motion is filed under the wrong Rule of Appellate Procedure. This is an appeal from the juvenile court's order waiving jurisdiction and transferring appellant to the district court for prosecution as an adult. Appeals in juvenile proceedings are governed by the rules for civil appeals. See Tex. Fam. Code § 56.01(b). Consequently, this appeal is governed by Texas Rule of Appellate Procedure 42.1, which states the requirements for voluntary dismissals in civil cases. See Tex. R. App. P. 42.1(a)(1). It is not governed by Rule 42.2, which states the requirements for voluntary dismissals in criminal cases. See Tex. R. App. P. 42.2(a). Appellant's motion incorrectly relies on Rule 42.2.
Additionally, in juvenile cases, Family Code section 51.09 allows waiver of the right to appeal if: "(1) the waiver is made by the child and the attorney for the child; (2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it; (3) the waiver is voluntary; and (4) the waiver is made in writing or in court proceedings that are recorded." Tex. Fam. Code § 51.09. Although the motion is signed by both appellant and appellant's attorney, the motion does not include any affirmative statement that appellant and appellant's attorney have been informed of and understand the right and the possible consequences of waiving the right to appeal. See id.; see also In re G.M., No. 01-22-00842-CV, 2023 WL 414594, at *1 (Tex. App.-Houston [1st Dist.] Jan. 26, 2023, no pet.) (mem. op.); In re E.J.E., 557 S.W.3d 615, 617 (Tex. App.-El Paso 2017, op. on motion).
For these reasons, appellant's voluntary motion to dismiss is not compliant with the rules.
Appellant should refile a compliant motion on or before March 22, 2024.
It is so ORDERED.