### NUMBER 13

- 13

- 00499

- CV



## COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

IN THE INTEREST OF C.T., A/K/A B.B.T., A CHILD

On appeal from the 377th District Court

of Victoria County, Texas

.



## ORDER

Before Chief Justice Valdez and Justices Rodriguez and Garza

Order Per Curiam

This is an accelerated parental termination case. See T EX

. R. A PP

. P. 28.4. The

trial court terminated the parental rights of appellant K.T. to C.T.

, a/k/a B.B.T., a child.

K.T. appeal ed the judgment ; however, K.T.’s court

- appointed appellate counsel , Mark

A . Davis, did not timely file a brief. O n November 15, 2013, we aba ted the appeal and

remanded to the trial court to hold a hearing to determine : (1) whether K.T. desires to

prosecute this appeal; (2) why counsel has failed to file a brief or motion to withdraw ; (3)

whether K.T. has been denied effective assistance of counsel; (4) whether K.T. should2

be appointed new counsel ; and (5) any other issu es to ensure an expeditious resolution.

A hearing was held and the trial court made the following findings of fact:

(1) Based on prior contacts by K.T. with Hon. Mark Davis, K.T. does desire to prosecute this appeal.

(2) Hon. Mark Davis has not filed a brief based on K.T. telling him he was terminated many times, K.T. disagreeing with his brief, and being advised she was getting counsel in the Dallas/Ft. Worth area.

(3) The Trial Court does not have any information to indicate that K.T. is no longer indigent, nor that she wants to proceed pro se.

(4) Hon. Mark Davis has a brief that he can file based upon his determination of appropriate argument to assert, but appears to be in conflict with argument K.T. wants to assert.

(5) Due to the appellate time frame, [Davis’s] being unable to locate K.T.

at this time, and assuming this complies with Rules of Professional Responsibility, the Trial Court recommends that Hon. Mark Davis: be required to continue as K.T.'s court

- appointed attorney; be ordered to

file the brief that he has prepared asserting the grounds that he ethically believes warrant review, identify K.T.'s disagreement and identify, if able, the arguments K.T. wanted to assert.

We agree with the trial court’s recommendation. We note that t he appointment of

an a ttorney for indigent parents contesting the termination of their pa rental rights is

manda tory, T EX

. F AM

. C ODE A NN

. § 107.013 (West Supp. 2012) ; however, i n the criminal

context, courts have held that appellants do not have the right to choose their own

appointed counsel . U nless an appellant waives h er right to counsel and elects to

proceed pro se, or otherwise shows adequate reason for the appointment of new

counsel, s he is not entitled to discharge h er counsel but must accept the counsel

appointed by t he trial court. Thomas v. State , 550 S.W.2d 64, 68 (Tex. Crim. App.

1977).

Due to the nature of a termination hearing and the right of an indigent parent to3

have appointed counsel, we hereby LIFT t he previously

- imposed abatement,

REINSTATE the appeal, and ORDER K.T.’s court

- appointed appella te counsel, Mark A.

Davis, to file with the Clerk of this Court the brief that he has prepared asserting the

grounds that he eth ically believes warrant review. The brief must identify the areas of

K.T.'s disagreement a nd identify, if possible , the arguments K.T. wanted to assert. We

note that over 75 days of the total 180 days in which this type of appeal is to be

disposed ha ve already passed. See T EX

. R. J UD

. A DMIN . 6.2(a), reprinted in T EX

. G OV ’ T

C ODE A NN

. , tit. 2, subtit. F app

. (West Supp. 2012). Accordingly, we ORDER counsel to

file appellant’s brief as directed herein within TEN days of the date of this order.

It is so ORDERED.

PER CURIAM

Order d elivered and filed the

4th day of December

, 201 3

.