Opinion
NO. 03-19-00363-CV
10-30-2019
Michele Shimek, Appellant v. Texas Comptroller of Public Accounts, Appellee
FROM THE 98TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-15-001681
THE HONORABLE DUSTIN M. HOWELL, JUDGE PRESIDINGORDER
PER CURIAM
Appellant's brief on appeal was originally due on July 26, 2019. On counsel's motion, the time for filing was extended to August 22, 2019. In the motion for extension of time, which was filed by appellant's counsel, Alfonso Kennard, Jr. and Daniel J. Salas, counsel represented to the Court that appellant's "new counsel," Logan Howard, was involved with several other unrelated litigation matters and caring for a parent in the intensive-care unit, and that these matters would prevent him from timely filing the brief. Kennard and Salas represented that they were filing the motion for extension of time at Howard's request. Kennard and Salas did not file a motion to withdraw as appellant's counsel, nor did they file a motion to withdraw and substitute Howard as appellant's counsel. See Tex. R. App. P. 6.5.
On August 20, 2019, Howard filed a motion to withdraw as appellant's counsel. In his motion, Howard indicated that appellant's current counsel, Kennard and Salas, had not made any attempts to communicate with him about the representation of appellant in this matter, nor had he requested that they file a motion for extension of time on his behalf as they asserted in that motion. Howard stated he was not made aware of his supposed representation of appellant until August 19, 2019. Howard indicated that he had conferred with appellant and she did not object to his withdrawal. In addition, in the certificate of conference, he noted that he had also conferred with Kennard and with appellee's counsel, and they did not oppose the motion. The Court granted Howard's motion to withdraw.
On October 11, 2019, this Court sent a notice to appellant's counsel informing counsel that appellant's brief was overdue and that a failure to file a satisfactory response by October 21, 2019, would result in the dismissal of this appeal for want of prosecution. On October 21, 2019, appellant filed a pro se motion for extension of time, requesting an additional 180 days to file her brief. In the motion, appellant states that her counsel "will not respond to emails, voice messages, or return phone calls," that she never implied or stated that Howard was retained as her counsel, and that she has made numerous attempts but has been unable to retrieve her case file from Kennard and Salas.
The Clerk of this Court has attempted to contact Kennard and Salas to inquire about the status of their representation, but Kennard and Salas have not responded to the Court's communication attempts. The Court cautions Kennard and Salas that the Texas Disciplinary Rules of Professional Conduct govern their relationship with appellant, including their responsibilities under Rule 1.01 and Rule 1.03. See Tex. Disciplinary Rules Prof'l Conduct R. 1.01(b)-(c) (requiring competent and diligent representation), R. 1.03(a) (requiring lawyer to keep client reasonably informed about status of matter and to promptly comply with reasonable requests for information), reprinted in Tex. Gov't Code, tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9).
The Court orders Alfonso Kennard, Jr. and Daniel J. Salas to respond to the Court no later than November 12, 2019, by filing either a motion for extension of time or a brief accompanied by a motion for extension of time, or if they no longer intend to represent appellant, a motion to withdraw that complies with Texas Rule of Appellate Procedure 6.5. If Kennard and Salas do not respond by that date, they may be required to show cause why they should not be held in contempt of court.
It is ordered on October 30, 2019. Before Chief Justice Rose, Justices Triana and Smith