Opinion
08-23-00149-CV
01-03-2024
IN THE MATTER OF N.I.T., A JUVENILE, Appellant.
Appeal from the 327th District Court of El Paso County, Texas (TC# 2200939)
Before Alley, C.J., Palafox and Soto, JJ.
ORDER
PER CURIAM
Appellant is a juvenile represented by appointed counsel. Appellant's trial counsel filed a notice of appeal on May 10, 2023. Trial counsel then filed an Anders brief and a motion to withdraw. See Anders v. California, 386 U.S. 738 (1967).
This Court struck Appellant's Anders brief, concluding that appellate counsel who served as trial counsel should not file an Anders brief because a conflict arises in assessing their own effectiveness. Elia Garcia, the appointed appellate counsel in this cause, has not yet entered an appearance or filed a brief. On December 20, 2023, this Court sent notice to Appellant and counsel notifying her that the brief was overdue. As of this date, Appellant has not filed a motion for extension of time, a brief, or otherwise responded to this Court's notice.
Pursuant to section 56.01of the Texas Family Code, an appeal from an order of a juvenile court is generally governed by the rules of civil cases. Tex. Fam. Code Ann. § 56.01(b) ("The requirements governing an appeal are as in civil cases generally."). When an appellant's brief is late in a civil case, the appellate court may "decline to dismiss the appeal and give further direction to the case as it considers proper[.]" Tex.R.App.P. 38.8(a)(2). Because of the unique concerns and criminal nature of juvenile delinquency adjudications, we conclude that an abatement is proper. See In re M.A.D., 167 S.W.3d 938, 939 (Tex. App.-Waco 2005, no pet.) (declining to dismiss a juvenile delinquency appeal and remanding because of the "liberty interest at stake").
We adopt the procedure for criminal cases as set out in Texas Rule of Appellate Procedure 38.8(b). Tex.R.App.P. 38.8(b). This cause is thus abated and remanded to the trial court for it to conduct a hearing to determine whether Appellant wishes to continue this appeal, and if so, whether Ms. Garcia is to proceed with the same on Appellant's behalf or whether Appellant is entitled to appointment of new counsel. The trial court shall make appropriate findings and conclusions and forward the same to the District Clerk of El Paso County on or before January 23, 2024. The District Clerk shall prepare and forward a supplemental clerk's record containing the trial court's findings and forward the same to this Court on or before February 2, 2024. A transcription of the hearing shall be prepared, certified, and filed with this Court on or before February 2, 2024.
IT IS SO ORDERED.