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OPINION
No. 04-08-00139-CV
IN THE MATTER OF THE GUARDIANSHIP OF LEO E. HAHN,
an Incapacitated Person
From Probate Court No. 2, Bexar County, Texas
Trial Court No. 2007-PC-0408
Honorable Tom Rickhoff, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: November 5, 2008
AFFIRMED
This appeal arises from the probate court’s order, following a jury trial, declaring Leo E.
Hahn an incapacitated person and appointing a Guardian With Limited Authority of the Person of
Leo E. Hahn. Mr. Hahn’s court-appointed appellate attorney filed a brief containing a professional
evaluation of the record and demonstrating there are no arguable grounds to be advanced. The brief
meets the requirements of Anders v. California, 386 U.S. 738 (1967). Before addressing whether
the appeal is without merit, we must first decide whether the procedure outlined in Anders is
appropriate or required in appeals from court-ordered guardianships. We conclude that it is.
Under Anders, appointed appellate counsel must “master the trial record, thoroughly research
the law, and exercise judgment in identifying the arguments that may be advanced on appeal.”
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McCoy v. Court of Appeals, 486 U.S. 429, 438 (1988); see also Anders, 386 U.S. at 744-45. “If,
after a conscientious review of the record, counsel concludes that the case is wholly frivolous, he or
she may so advise the court of appeals and request permission to withdraw.” In re D.A.S., 973
S.W.2d 219, 297 (Tex. 1998); Anders, 386 U.S. at 744. However, a request to withdraw must be
accompanied by a brief referring to anything in the record that might arguably support the appeal.
Anders, 386 U.S. at 744. A copy of the brief must be furnished to the indigent client, and the court
must allot the client time to raise any issues he or she chooses. Id. After counsel files the Anders
brief, the appellate court must conduct a full examination of all proceedings to decide whether the
appeal is wholly frivolous. Id. If the court concludes the appeal is frivolous, it may grant appellate
counsel’s motion to withdraw. Id. However, if the court finds any of the legal issues arguable on
their merits, and therefore not wholly frivolous, it must either deny counsel’s request to withdraw
or appoint substitute counsel. Id.
“The purpose of Anders is twofold.” In re D.A.S., 973 S.W.2d at 297. “First, by requiring
counsel to conduct a thorough review of the record and to identify any arguable issues, the procedure
ensures that indigent criminal defendants receive substantially the same treatment as nonindigent
defendants.” Id. “Second, by providing the appellate court with a brief of any arguable issues,
Anders assists the appellate court in determining whether the appeal is indeed wholly frivolous.”
Id. “Moreover, Anders strikes an important balance between the criminal defendant’s constitutional
right to counsel on appeal and counsel’s obligation not to prosecute frivolous appeals.” Id.
Recently, Texas courts have applied Anders to civil cases. See In re D.A.S., 973 S.W.2d at
299 (applying Anders in context of civil juvenile delinquency adjudication); State of Tex. ex rel. Best
Int. & Prot. of L.E.H., 228 S.W.3d 219, 220 (Tex. App.—San Antonio 2007, no pet.) (applying
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Anders in context of temporary mental health services involuntary commitment); In re R.R., No. 04-
03-00096-CV, 2003 WL 21157944, at *4 (Tex. App.—San Antonio May 21, 2003, no pet.)
(applying Anders in context of termination of indigent parent’s parental rights). However, in D.A.S.,
the Texas Supreme Court cautioned that its opinion was “not intended to extend Anders to all cases
in which the Legislature provides the right to counsel on appeal.” Id. Therefore, in this appeal, we
must determine as an issue of first impression whether Anders should be extended to an appeal from
an order declaring an individual incapacitated and appointing a guardian. Our consideration of this
issue is guided by the factors the D.A.S. Court believed relevant when it faced the issue of whether
Anders should be applied to appeals from civil juvenile delinquency adjudications.
First, a person’s liberty interest is implicated in guardianship proceedings. A guardian of the
person is entitled to take charge of the person of the ward, and has the right to have physical
possession of the ward and to establish the ward’s legal domicile. See TEX . PROB. CODE ANN .
§ 767(a) (Vernon Supp. 2008). For this reason, “the probate code contains uniform, strict procedural
safeguards to protect a person’s liberty and property interests before a court may take the drastic
action of removing” a person’s ability to make his or her own legal decisions. Saldarriaga v.
Saldarriaga, 121 S.W.3d 493, 499 (Tex. App.—Austin 2003, no pet.). Second, the Texas
Legislature has mandated the appointment of an attorney to represent the interests of an individual
subject to a guardianship proceeding. See TEX . PROB. CODE ANN . § 646(a). Third, although the
Probate Code does not provide a statutory right to appointed counsel on appeal following the
appointment of a guardian, an “attorney ad litem must exhaust all remedies available to his client
and, if necessary, represent his client’s interest on appeal.” See Cahill v. Lyda, 826 S.W.2d 932, 933
(Tex. 1992). Finally, all attorneys, including those appointed to represent a person who is appealing
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an order appointing a guardian, are ethically bound to not file a frivolous pleading. Tex. Disciplinary
R. Prof’l Conduct 3.01, reprinted in TEX . GOV ’T CODE ANN ., tit. 2, subtit. G app. A (Vernon 2005)
(Tex. State Bar R. art. X, § 9). We conclude a “procedure akin to Anders is necessary . . . to provide
a procedural mechanism for counsel to fulfill [his] ethical obligations, to assist the court in deciding
appeals, and to provide consistent procedures for all indigent litigants in” appeals from an order
declaring an individual incapacitated and appointing a guardian. In re R.R., 2003 WL 21157944,
at *4. We therefore hold that when court-appointed counsel concludes an appeal from such an order
is frivolous, counsel should file a brief and a motion to withdraw in accordance with the procedures
specified in Nichols v. State, 954 S.W.2d 83 (Tex. App.—San Antonio 1997, no pet.) (setting forth
duties of counsel and appellate court in Anders appeals). Here, the procedures in Nichols have been
satisfied. Mr. Hahn was informed of his right to review the record. Counsel provided Mr. Hahn
with a copy of the brief and advised him of his right to file a pro se brief. Mr. Hahn filed a pro se
brief.
Because Mr. Hahn filed a pro se brief, we are faced with two options when an Anders brief
and a subsequent pro se brief are filed. Upon reviewing the entire record, we may determine (1) the
appeal is without merit and issue an opinion explaining that there is no reversible error or (2) there
are arguable grounds for appeal and remand the cause to the trial court for appointment of new
appellate counsel. Bledsoe v. State, 178 S.W.3d 824, 826-27 (Tex. Crim. App. 2005) (holding that
court of appeals may address merits of issues raised by pro se only after any arguable grounds have
been briefed by new counsel). Here, we have carefully reviewed the entire appellate record, and we
conclude there are no arguable grounds for appeal, there is no reversible error, and the appeal is
without merit. See id.
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Accordingly, we affirm the trial court’s judgment, and we GRANT appellate counsel’s
motion to withdraw. Nichols, 954 S.W.2d at 85-86.
Sandee Bryan Marion, Justice
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