COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00417-CV
IN RE J.R.J. RELATOR
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ORIGINAL PROCEEDING
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OPINION
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I. Introduction
In this original proceeding, we address whether the trial court abused its
discretion by ordering Relator J.R.J.’s counsel not to file a notice of appeal on
Relator’s behalf unless Relator first communicated to counsel his desire to appeal
the judgment terminating Relator’s parental rights. Because we hold that the trial
court abused its discretion and that Relator has no adequate remedy by appeal,
we conditionally grant the writ of mandamus.
II. Background
The trial court signed a judgment on September 26, 2011, terminating
Relator’s parental rights to his three-year-old son. Although represented by court-
appointed counsel, Relator did not appear at trial. On September 27, 2011,
Relator’s counsel filed a motion for substitution of counsel. Counsel stated in the
motion that he is not on the Denton County Appellate Appointment list and
requested that appellate counsel be appointed for Relator. Counsel also
acknowledged in the motion that he had not been able to contact Relator.
Department of Family and Protective Services (the Department) opposed the
motion to substitute counsel, arguing at the September 29, 2011 hearing that
appellate counsel should not be appointed until Relator expressed a desire to
appeal and that a notice of appeal should not be filed until that time. On October
6, 2011, the trial court entered an order denying the motion to substitute counsel,
finding that Relator’s counsel had no duty to file a notice of appeal until hearing
from Relator that he desired to appeal, and ordering Relator’s counsel not to file a
notice of appeal unless Relator first communicated his desire to appeal. A petition
for a writ of mandamus and a motion for temporary relief were filed in this court the
next day; we requested a response and issued an order staying the portions of the
trial court’s October 6 order concerning the notice of appeal. Relator’s counsel
thereafter timely filed a notice of appeal in the trial court on October 10, 2011.
III. Standard of Review
Mandamus relief is proper only to correct a clear abuse of discretion when
there is no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas,
290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding). A trial court clearly abuses
its discretion when it reaches a decision so arbitrary and unreasonable as to
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amount to a clear and prejudicial error of law. Walker v. Packer, 827 S.W.2d 833,
839 (Tex. 1992) (orig. proceeding). We give deference to a trial court=s factual
determinations, but we review the trial court=s legal determinations de novo. In re
Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). A
trial court abuses its discretion if it incorrectly interprets or improperly applies the
law. In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642B43 (Tex.
2009) (orig. proceeding); Walker, 827 S.W.2d at 840.
Absent extraordinary circumstances, mandamus will not issue unless relator
lacks an adequate remedy by appeal. In re Van Waters & Rogers, Inc.,145
S.W.3d 203, 210B11 (Tex. 2004) (citing Walker, 827 S.W.2d at 839). Whether a
clear abuse of discretion can be adequately remedied by appeal depends on a
careful analysis of costs and benefits of interlocutory review. In re McAllen Med.
Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). As this balance
depends heavily on circumstances, it must be guided by analysis of principles
rather than simple rules that treat cases as categories. Id. An appeal is
inadequate for mandamus purposes when parties are in danger of permanently
losing substantial rights, such as when the appellate court would not be able to
cure the error, the party=s ability to present a viable claim or defense is vitiated, or
the error cannot be made part of the appellate record. Van Waters & Rogers, Inc.,
145 S.W.3d at 210B11; Walker, 827 S.W.2d at 843B44.
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IV. Discussion
Relator contends in his second issue that the trial court abused its discretion
by ordering his counsel not to file a notice of appeal unless Relator first
communicated to counsel his desire to appeal the judgment terminating his
parental rights.
Government code section 22.221(a) provides that a court of appeals ―may
issue a writ of mandamus and all other writs necessary to enforce the jurisdiction
of the court.‖ Tex. Gov’t Code Ann. § 22.221(a) (West 2004). As set forth below,
disputes concerning notices of appeal are among the instances in which courts of
appeals invoke their writ power to protect their jurisdiction.
For example, Rick Smith, an inmate, filed a negligence suit against the
Texas Department of Criminal Justice–Institutional Division, and the trial court
dismissed the lawsuit as frivolous. See In re Smith, 263 S.W.3d 93, 94 (Tex.
App.—Houston [1st Dist.] 2006, orig. proceeding). Smith tendered a request for
findings of fact and conclusions of law, a motion to reinstate, an amended petition,
and a notice of appeal to the district clerk, but the clerk returned the documents,
unfiled, to Smith with a handwritten notation that the case was closed and that the
documents were not timely. Id. at 94, 95. The court held that the clerk had a
mandatory, ministerial duty to file the documents and to forward the notice of
appeal to the court of appeals without regard to their timeliness. Id. at 95–96 &
n.3.
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Relying in part on the First Court of Appeals’s opinion and in part on
government code section 22.221(a), the Waco Court of Appeals addressed a
similar situation in In re Smith, 270 S.W.3d 783, 785, 787 (Tex. App.—Waco 2008,
orig. proceeding). There, the trial court rendered an order declaring Clifford Smith
to be a vexatious litigant. Id. at 784. After Smith tendered a letter expressing his
desire to appeal the vexatious litigant order, the district clerk responded by letter
that the clerk’s office would not file any documents for Smith because of the trial
court’s vexatious litigant order. Id. at 784–85. The court of appeals held that the
letter constituted a notice of appeal and that the district clerk abused its discretion
by refusing to file the letter. Id. at 786–87. Importantly, however, the court also
held as follows:
Any contention that Smith’s notice of appeal does not comply
with the requirements of the appellate rules is for this Court to
determine once that document has been filed by Respondent and
forwarded to this Court in the customary manner Respondent and
other trial court clerks forward notices of appeal to this Court.
Id. at 787 (citing Smith, 263 S.W.3d at 95, and In re Washington, 7 S.W.3d 181,
182 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding)). Similarly, the Dallas
Court of Appeals granted a petition for writ of mandamus directing the trial court to
order the district clerk to file a notice of appeal, effectively vacating the trial court’s
previous order that the clerk not file any further documents from a particular
litigant. In re Miller, No. 05-98-01120-CV, 1998 WL 880959, at *1 (Tex. App.—
Dallas Dec. 18, 1998, orig. proceeding) (not designated for publication).
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In the criminal case of Whitsitt v. Ramsay, the trial court ordered the district
clerk to ―hold in abeyance any further preparation of the attempted appeal by the
defendant‖ because the trial court questioned whether the defendant should have
been permitted to appeal given a prior waiver of the right to appeal. See 719
S.W.2d 333, 334 (Tex. Crim. App. 1986) (orig. proceeding). Whitsitt contended by
mandamus that ―the trial court exceeded its authority by interfering with the
appellate process.‖ Id. The court of criminal appeals agreed and ordered the trial
court to vacate its order instructing the clerk to ―hold‖ the notice of appeal. Id.
Finally, in the criminal case of In re Sistrunk, 142 S.W.3d 497, 499 (Tex.
App.—Houston [14th Dist.] 2004, orig. proceeding), Sistrunk pleaded guilty to
manslaughter, but the victim’s family members were unhappy with the plea-
bargained sentence and filed a notice of appeal. The trial court ordered the
parties to brief the propriety of the family members’ attempted appeal, and the
district attorney sought mandamus relief and argued that the trial court was acting
without jurisdiction. Id. at 500. Granting mandamus relief, the court wrote, ―If
there is a question concerning the right to appeal certain matters, it is a matter
within the jurisdiction of the court of appeals to decide and not within the
jurisdiction of the trial court to decide.‖ Id. at 500–01. The court also stated that
―whether or not a notice of appeal is proper or effective‖ is a question for the court
of appeals and that the trial court had ―no authority to determine whether the
notice of appeal filed by the [family members] is proper or effective because that
determination lies within the court of appeals’ jurisdiction.‖ Id. at 501.
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Here, the trial court ordered Relator’s counsel not to file a notice of appeal
until Relator communicated to counsel his desire to appeal. In doing so, the trial
court agreed with, and took affirmative action to implement, the Department’s
argument that a notice of appeal should not be filed until Relator expressed a
desire to appeal. But the question of whether Relator’s counsel has the authority
to file a notice of appeal is one for this court, not the trial court.1 See Smith, 270
S.W.3d at 787; see also Whitsitt, 719 S.W.2d at 334; Sistrunk, 142 S.W.3d at
500–01. Therefore, the trial court abused its discretion by ordering Relator’s
counsel not to file a notice of appeal. And Relator has no adequate remedy by
appeal because Relator might permanently lose the right to appeal the termination
of his parental rights if the trial court’s order is not vacated. See Van Waters &
Rogers, Inc., 145 S.W.3d at 210B11; Walker, 827 S.W.2d at 843B44; In re Prof’l
Pharmacy II, No. 02-10-00163-CV, 2010 WL 3718946, at *4 (Tex. App.—Fort
Worth Sept. 23, 2010, orig. proceeding) (mem. op.) (holding appellate remedy
inadequate because party would lose substantial right to a jury trial); see also Tex.
Fam. Code Ann. § 109.002(b) (West Supp. 2011) (granting parties the ability to
appeal a parental rights termination order).
1
We are aware that, generally, a court of appeals may only enforce or
protect its jurisdiction by issuing a writ ―after appellate jurisdiction has been
invoked and thus becomes active.‖ In re Brown, No. 07-11-00397-CV, 2011 WL
5105457, at *1 (Tex. App.—Amarillo Oct. 27, 2011, orig. proceeding) (citing
Winfrey v. Chandler, 159 Tex. 220, 318 S.W.2d 59, 61 (1968), and Bush v. Vela,
535 S.W.2d 803, 804 (Tex. Civ. App.—Corpus Christi 1976, orig. proceeding)).
This case is different, though, because the trial court entered an order prohibiting
Relator’s counsel from invoking our appellate jurisdiction.
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The Department argues that Relator’s counsel, through this original
proceeding, is attempting ―to implement a nonsensical application of the appellate
process, one that would make an appeal automatic.‖ But our holding should not
be interpreted to in any way disturb the well-settled principle that the decision to
appeal belongs to the litigant, not to the lawyer. See, e.g., Jones v. Banner
Creamery, 214 S.W.2d 487, 488 (Tex. Civ. App.—Eastland 1948, no writ) (―An
attorney does not have the right to appeal a case against the wishes or
instructions of his client.‖). It always has been and always will be that the client
must decide whether to appeal a judgment. But to the extent there is a factual
dispute concerning the lawyer’s authority to file a notice of appeal on a client’s
behalf because the client may not have expressed a desire to appeal, the dispute
must be resolved by the court of appeals, typically after an abatement, a limited
remand to the trial court for an evidentiary hearing, and the filing of supplemental
findings of fact or conclusions of law. See generally In re M.E.-M.N., 342 S.W.3d
254, 258–59 (Tex. App.—Fort Worth 2011, pet. denied) (describing abatement
and remand procedure used in termination appeal after the appellant did not
timely file her appellant’s brief); Taylor v. Tex. Dep’t of Family & Protective Servs.,
No. 03-09-00684-CV, 2010 WL 5129126, at *1 (Tex. App.—Austin Dec. 17, 2010,
no pet.) (mem. op.) (dismissing appeal after evidentiary hearing and determination
that the appellant abandoned the appeal). The trial court does not, however, have
the authority to interfere with our jurisdiction by prohibiting a party from filing a
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notice of appeal. See Smith, 270 S.W.3d at 787. We sustain Relator’s second
issue.2
IV. Conclusion
Having held that the trial court abused its discretion, we conditionally grant
the petition for writ of mandamus and direct the trial court to vacate the portion of
its October 6, 2011 order prohibiting Relator’s counsel from filing a notice of
appeal. The writ will issue only if the trial court fails to comply within ten days.
Our October 7, 2011 temporary stay order will be automatically lifted upon the trial
court’s compliance with our order.
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.
DELIVERED: December 15, 2011
2
In light of our disposition of Relator’s second issue, we need not address
and express no opinion concerning his first issue: whether the trial court abused
its discretion by finding that his counsel had no duty to file a notice of appeal until
Relator communicated to counsel his desire to appeal. See Tex. R. App. P. 47.1.
We also do not reach the question of the trial court’s refusal to substitute appellate
counsel for Relator because Relator has not assigned that question as an issue in
this original proceeding, nor has he briefed whether he established good cause for
the substitution. See Tex. Fam. Code Ann. § 107.016 (West Supp. 2011) (listing
conditions upon which appointed counsel in termination case may withdraw or be
replaced upon finding of good cause); Tex. R. Civ. P. 10 (requiring showing of
good cause for withdrawal of counsel). We do note, however, the trial court’s
apparent agreement on the record at the hearing to substitute appellate counsel in
the event of an appeal.
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