IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
SEPTEMBER 30, 2003
______________________________
VAN HOOLEY AND ANGELA HOOLEY, INDIVIDUALLY AND D/B/A VAN HOOLEY CONSTRUCTION, APPELLANTS
V.
THE ESTATE OF WELDON MCCLURE, DECEASED, APPELLEE
_________________________________
FROM THE COUNTY COURT AT LAW OF RANDALL COUNTY;
NO. 2899-L; HONORABLE JAMES ANDERSON, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINIONAppellants Van Hooley and Angela Hooley, individually and d/b/a Van Hooley Construction, filed a Motion to Dismiss Appeal on September 26, 2003.
No decision of this Court having been delivered to date, we grant the motion. Accordingly, the appeal is dismissed. No motion for rehearing will be entertained and our mandate will issue forthwith. Tex. R. App. P. 42.1. All costs herein having been paid, no order pertaining to costs is made.
James T. Campbell
Justice
ourt for further proceedings per Texas Rule of Appellate Procedure 38.8(b)(2). February 11th passed, and appellant again filed no brief. As before, he sought, for the third time, an additional 60-day extension. The reason purportedly justifying it was no different from the others, i.e. counsel "had insufficient time to complete Appellant's brief due to his heavy hearing and trial schedule." Yet, the nature of this allegedly "heavy hearing and trial schedule" or the matter, number of cases, and the like comprising it has never been explained. This is of import for simply stating that one is too busy to attend to pending legal business does not justify delay. Curry v. Clayton, 715 S.W.2d 77, 79 (Tex. App.-Dallas 1986, no writ).
Consequently, we deny the request for an additional extension of the deadline. So too do we abate this appeal and remand the cause to the 252nd District Court of Jefferson County (trial court) for further proceedings. Upon remand, the trial court shall immediately cause notice of a hearing to be given and, thereafter, conduct a hearing to determine the following:
1. whether appellant desires to prosecute the appeal;
2. whether appellant is indigent and entitled to appointed counsel; and,
3. whether appellant has been denied the effective assistance of counsel due to appellate counsel's failure to timely file an appellate brief. See Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 834-35, 83 L. Ed.2d 821, 828 (1985) (holding that an indigent defendant is entitled to the effective assistance of counsel on the first appeal as of right and that counsel must be available to assist in preparing and submitting an appellate brief).
We further direct the trial court to issue findings of fact and conclusions of law addressing the foregoing subjects. Should the trial court find that appellant desires to pursue this appeal, is indigent, has appointed counsel, and has been denied effective assistance of counsel, then we further direct it to appoint new counsel to assist in the prosecution of the appeal. The name, address, phone number, telefax number, and state bar number of the new counsel who will represent appellant on appeal must also be included in the court's findings of fact and conclusions of law. Furthermore, the trial court shall also cause to be developed 1) a supplemental clerk's record containing the findings of fact and conclusions of law and 2) a reporter's record transcribing the evidence and argument presented at the aforementioned hearing. Additionally, the trial court shall cause the supplemental clerk's record to be filed with the clerk of this court on or before March 19, 2004. Should additional time be needed to perform these tasks, the trial court may request same on or before March 19, 2004.
It is so ordered.
Per Curiam
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2004).