in the Interest of J. L. G., Jr. v. Department of Family and Protective Services

COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

ORDER OF ABATEMENT

Appellate case name: In the Interest of J.L.G., Jr., A Child Appellate case number: 01-17-00129-CV Trial court case number: 2014-06119J Trial court: 315th District Court of Harris County

On February 20, 2017, appellant, J.L.G., proceeding pro se, filed a notice of appeal from the “Permanency Hearing Order Before Final Order,” signed on January 31, 2017. Because this order appeared to be a non-appealable temporary order, the Clerk of this Court sent a notice to appellant on March 14, 2017, notifying him that, among other things, his appeal was subject to dismissal unless he requested a supplemental clerk’s record be filed containing an appealable final order. On March 15, 2017, the district clerk filed a supplemental clerk’s record in this Court attaching, among other things, an “Agreed Decree for Termination,” signed on February 24, 2017. This termination decree appears to be an appealable order.

Because appellant’s notice of appeal, filed on February 20, 2017, was prematurely filed for a non-appealable order, the Court deems it to have been filed on February 24, 2017, the date the appealable order, the termination decree, was signed. See TEX. R. APP. P. 27.1(a), 27.2. As this appeal now involves the termination of the parent-child relationship, this Court is required to bring the appeal to final disposition within 180 days of the date the notice of appeal was filed, so far as reasonably possible. See TEX. ST. JUD. ADMIN. R. 6.2(a) (West Supp. 2016). Thus, the Clerk of this Court is directed to note in this Court’s records that the notice of appeal was filed on February 24, 2017, and that the compliance deadline has been changed from August 18, 2017 to August 23, 2017.

On March 6, 2017, appellant filed a pro se affidavit of indigency in this Court. Under the Texas Family Code, the trial court is responsible for appointing counsel to represent an indigent parent, like J.L.G., in a parental termination suit, after determining that the parent is indigent, and appointed counsel is to remain as counsel for the duration

of the suit and for any subsequent appeal, unless permitted to withdraw. See TEX. FAM. CODE ANN. § 107.013(a)(1), (d), (e) (West Supp. 2016).

Although the clerk’s record contains an order, signed on September 28, 2015, granting a motion to withdraw filed by appellant’s prior counsel, John S. Maisel, there does not appear to be a subsequent order appointing counsel for appellant. Because this Court lacks authority to appoint counsel, the Court construes the appellant’s affidavit of indigency as a motion to abate this appeal for the trial court to consider whether to appoint appellate counsel, and grants it. See, e.g., Reed v. Tex. Dep’t of Crim. Justice- Instit. Div., No. 01-02-00734-CV, 2003 WL 21545122, at *1 (Tex. App.—Houston [1st Dist.] July 10, 2003, no pet.) (mem. op.) (construing motion for appointment of counsel as request to abate for trial court to appoint appellate counsel).

Accordingly, the Court sua sponte abates this appeal for the trial court to hold a hearing to determine whether appellant, J.L.G., is indigent, after filing the attached appellant’s affidavit of indigency in the trial court and, if so, to enter an order appointing appellate counsel. See TEX. FAM. CODE ANN. §§ 107.013, 107.016(2) (West Supp. 2016); In re M.V.G., 285 S.W.3d 573, 575–76 (Tex. App.—Waco 2009, order). Any hearing shall be conducted within 15 days of this Order and the district clerk shall file a supplemental clerk’s record containing any orders within 20 days of the date of this Order.

The appeal is abated, treated as a closed case, and removed from this Court’s active docket. The appeal will be reinstated on this Court’s active docket when the supplemental clerk’s record complying with this Order is filed with this Court.

It is so ORDERED.

Judge’s signature: /s/ Laura Carter Higley 

Date: March 21, 2017