IN THE
TENTH COURT OF APPEALS
No. 10-16-00329-CV
IN THE MATTER OF A.J., A JUVENILE,
From the 272nd District Court
Brazos County, Texas
Trial Court No. 418-J-15
ORDER
By late December of 2016, the docketing statement in this appeal had not been filed
with this Court, the appellate filing fees had not been paid, and the reporter’s record had
not been requested. In early December, by letters dated December 5 and December 6,
2016, the Clerk of this Court had warned appellant’s counsel that 1) the appeal would
proceed on the clerk’s record alone if a reporter’s record was not requested within 21
days from the date of the letter; and 2) the appeal would be abated to the trial court to
determine whether appellant was receiving effective assistance of counsel if the
docketing statement was not filed and the fees were not paid or an affidavit of indigence
containing the information required to be considered by subsection (m) of section 56.01
of the Texas Family Code was not filed within 14 days from the date of the letter.
The deadline established by the Court in both letters passed without notice from
appellant’s counsel whether the reporter’s record had been requested, without the
docketing statement being filed with this Court, and without the appellate fees being paid
or an affidavit of indigence being filed with this Court. No explanation or excuse was
offered to the Court by appellant’s counsel for these inactions. No communication,
whatsoever, came from appellant’s counsel. We had no choice but to abate this appeal to
the trial court to determine why counsel had not responded to the Clerk’s letters and had
not taken the actions requested.
DOCKETING STATEMENT AND RECORD
The trial court conducted an abatement hearing and found that:
A copy of the file stamped Docketing Statement was presented during the
hearing, and it shows that it was filed with the Brazos County District
Clerk’s Office on December 5, 2016….[Counsel] filed his request to have the
court reporter transcribe the reporter’s record on January 5, 2017.
When counsel does not communicate with the Court, we have no reason to know
that he has filed any documents. We are unable to review what may have been filed
somewhere other than with this Court. We certainly do not expect counsel to file
documents we request to be filed here with a different court. And when the Rules of
Appellate Procedure provide that a docketing statement must be “file[d] in the appellate
court,” TEX. R. APP. P. 32.1, it would make no sense for this Court to expect the docketing
statement to be filed in the trial court. Counsel has regularly practiced before this Court
and should know this rule. Further, in the Clerk’s letter dated December 5, 2016, the
Clerk asked counsel to request the record “and simultaneously notify us of that
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request….” Counsel has yet to file with this Court a docketing statement or a notification
that he requested the reporter’s record as requested by this Court.
FEES AND INABILITY TO PAY COSTS
Further, we have no resolution as to whether appellate fees would be paid or an
affidavit of inability to pay costs containing the information required to be considered by
subsection (m) of section 56.01 of the Texas Family Code would be filed. The trial court
found that
During the hearing, [counsel] stated that appellant’s mother was reluctant
to sign an affidavit of indigence, and it caused him to miss the deadlines.
During the abatement hearing, counsel additionally asked the trial court to grant
some sort of request for the mother to be held indigent based on a previous indigence
finding by the juvenile referee. (“I’ve asked the Court to just grant that based on the
previous indigency finding by the Juvenile Referree (sic).”). Supp. R.R. p. 7. Reviewing
the record we have, a juvenile referee did not find appellant’s mother to be indigent as to
the payment of costs, only that she was “financially unable to employ an attorney to
represent the child.” C.R. p. 44. Nevertheless, the trial court “signed that order.” Supp.
R.R. p. 7.
We do not have a copy of the trial court’s order or the document presented to the
trial court by counsel at the hearing.
REFEREE
As a result of the foregoing, it has come to our attention that a referee heard the
State’s motion to modify the original disposition order pertaining to this juvenile. The
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referee signed the Order Modifying Disposition and it is from this order that the appellant
appeals. According to the Family Code, after a hearing conducted by a referee, the referee
transmits written findings and recommendation to the juvenile court judge and the
juvenile court judge “shall adopt, modify, or reject the referee’s recommendations not
later than the next working day after the day that the judge receives the
recommendations.” TEX. FAM. CODE ANN. § 54.10(d) (West xxxx). The failure of the
juvenile court judge to act within the statute’s timeframe “results in release of the child
by operation of law….” Id. The order adopting the referee’s recommendation in the
clerk’s record in this appeal is not signed. Thus, it appears the trial court did not adopt
the referee’s order modifying the appellant’s disposition. Accordingly, because of this
failure, it appears the child may have been released, and this appeal may be moot.
ORDERS
This appeal is reinstated.
Appellant ‘s counsel is ORDERED to file a docketing statement with this Court,
as is required by the Rules of Appellate Procedure, within 7 days from the date of this
order. Appellant’s counsel is ORDERED to file a copy of counsel’s request for the
reporter to file the reporter’s record within 7 days from the date of this order. If either of
these items are not filed within the specified time period, this appeal will be abated to the
trial court to initiate contempt proceedings against appellant’s counsel.
The trial court clerk is ORDERED to file a supplemental clerk’s record containing
the order and request referenced in the supplemental reporter’s record of the abatement
hearing held on January 5, 2017, page 7, within 7 days from the date of this order.
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Depending on what was requested and what was ordered, further orders from this Court
regarding appellant’s inability to pay costs may be forthcoming.
The parties are ORDERED to file a response within 14 days from the date of this
order as to whether this appeal is moot due to the juvenile court judge having not adopted
the referee’s Order Modifying Disposition signed on August 29, 2016.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Appeal reinstated
Order issued and filed February 15, 2017
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