Summary
The Texas Court of Appeals, Third District, denied the appellant’s fourth motion for an extension of time to file an appellate brief. The court abated the appeal and remanded the cause to the trial court for a hearing under Texas Rule of Appellate Procedure 38.8 to determine whether the appellant wished to continue the appeal, whether he was indigent, and whether counsel had abandoned the appeal.
Topics
Practice areas
Questions Presented
- Whether appellant's fourth motion for an extension of time to file the appellate brief should be granted.
- What action is required under Texas Rule of Appellate Procedure 38.8(b) when an appellant's brief has not been filed and counsel may have abandoned the appeal.
Holdings
- The fourth motion for an extension of time was denied because the court had previously granted three extensions and expressly warned that no further extensions would be granted.
- The appeal must be abated and remanded to the trial court for a hearing to determine whether appellant still wishes to prosecute the appeal, whether appellant is indigent, and whether counsel has abandoned the appeal; if appellant wishes to appeal and is indigent, the trial court should enter appropriate orders to ensure adequate appellate representation.
Key quotations
“We abate the cause and remand it to the trial court to hold a hearing in accordance with rule 38.8 of the Rules of Appellate Procedure.” (2)
Factual background
Appellant's appellate brief was originally due on March 30, 2015. The court of appeals granted three extensions, ordered counsel to file the brief by October 9, 2015, and warned that no further extensions would be granted; counsel then requested a fourth extension to January 11, 2016.
Procedural history
The appeal originated in the District Court of Comal County, 274th Judicial District, in cause number CR2011-031. After appellant's brief was not filed by the court-ordered deadline, and counsel requested another extension, the court of appeals denied the motion and remanded for a Rule 38.8(b) hearing concerning appellant's desire to prosecute the appeal, indigence, and possible abandonment by counsel.
Remand instructions
The trial court must hold a hearing under Texas Rule of Appellate Procedure 38.8(b) to determine whether appellant still wishes to prosecute the appeal, whether appellant is indigent, and whether counsel has abandoned the appeal. If appellant wishes to appeal and is indigent, the trial court should enter appropriate orders to ensure adequate representation on appeal. The hearing record, including all findings and orders, must be forwarded to the appellate clerk as a supplemental record no later than February 8, 2016.