In The 

Court of Appeals 

Seventh District of Texas at Amarillo

No. 07-16-00410-CV 

IN THE INTEREST OF X.H., A CHILD 

 

 

On Appeal from the 140th District Court 

Lubbock County, Texas 

Trial Court No. 2015-515,369, Honorable Jim Bob Darnell, Presiding 

 

February 6, 2017 

 

ABATEMENT AND REMAND 

 

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ. 

In this appeal, the mother of X.H.1challenges the trial court’s order terminating 

her parental rights. Appellee is the Texas Department of Family and Protective 

Services. 

On January 25, 2017, the mother’s court-appointed appellate counsel filed an

Anders2brief and a copy of a letter from counsel to the mother. According to the letter, 

 

1

To protect the child’s privacy, we will refer to the parent as “the mother” and the 

child by his initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P.

9.8(b).

2 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).
2

counsel provided the mother a copy of her brief and the record and notified the mother 

of her right to file a pro se response to counsel’s brief. In her brief, counsel discussed 

potential appellate issues but concluded no arguable error was shown. 

Pursuant to our obligations when appointed counsel files an Anders brief, we 

have reviewed the appellate record brought forward. See In re P.M., No. 15-0171, 2016 

Tex. LEXIS 236, at *8, n.10 (Tex. Apr. 1, 2016) (per curiam) (application of Anders

procedures in parental-rights termination cases, citing In re D.A.S., 973 S.W.2d 296, 

297 (Tex. 1998)); In re A.W.T., 61 S.W.3d 87, 88-89 (Tex. App.—Amarillo 2001, no pet.) 

(per curiam) (termination case); see also In re Schulman, 252 S.W.3d 403, 407 (Tex. 

Crim. App. 2008); Stafford v. State, 813 S.W.2d 503, 510 (Tex. Crim. App. 1991); High 

v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). After doing so, we are not yet 

satisfied that the appeal is wholly frivolous. See In re D.A.S., 973 S.W.2d at 297 

(Anders analysis “assists the appellate court in determining whether the appeal is 

indeed wholly frivolous”); High, 573 S.W.2d at 811 (“in the last analysis, it is up to the 

court, not counsel, ‘after a full examination of all proceedings, to decide whether the 

case is wholly frivolous’”) (quoting Anders, 386 U.S. at 744); see also Penson v. Ohio,

488 U.S. 75, 82, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988) (Anders brief serves valuable 

purpose of assisting court in determining both that counsel has conducted the required 

detailed review of case and that “appeal is indeed so frivolous that it may be decided 

without an adversary presentation”). The record reveals a matter, not mentioned in 

counsel’s Anders brief, on which we require further briefing. 

After the associate judge signed an order terminating her parental rights, the 

mother requested a de novo hearing before the referring district court. TEX. FAM. CODE 
3

ANN. § 201.2042 (West 2014).3 When the district court convened its de novo hearing, 

the proceeding began with the court asking counsel for the Department if she had 

“additional evidence to present.” Counsel stated she had no additional evidence and 

requested a ruling based on “the review of the transcript that has been provided to the 

Court . . . .” The mother’s counsel requested that the Department be required to 

present its case for termination anew. Counsel expressed her client’s desire that the 

Department “have to proceed in presenting all the evidence against her to prove to this 

Court by clear and convincing evidence” that termination was proper. Counsel 

continued, “So we would ask that the Department start this hearing by calling its first 

witness to proceed as if we were starting over.”

The court responded:

The Court will deny that request. The Court has notified the attorneys that 

the Court would allow any additional evidence or testimony to be 

presented after--at this point in time because the Court has reviewed the 

transcripts. And the Court is of the opinion that it’s not necessary to hear 

the evidence over again.

The mother then presented the brief testimony of two witnesses. Following 

argument, the court rendered judgment “affirm[ing]” the associate judge’s termination of 

the mother’s parental rights. 

Counsel has indicated a desire to withdraw from her representation of the mother 

in this appeal. Finding good cause, we grant counsel’s request; she is relieved of her 

 

3

In her written request for a de novo hearing the mother specified the issues to 

be presented to the referring court. See TEX. FAM. CODE ANN. § 201.015(b). She 

challenged each of the statutory predicate findings for termination made by the 

associate judge as well as his best interest finding.
4

duties. See TEX. FAM. CODE ANN. § 107.016(2) (West 2014);4see also Stafford, 813 

S.W.2d at 511 (“if the Court of Appeals does find that there are arguable grounds, the 

appellate court must then guarantee appellant’s right to counsel by ensuring that 

another attorney is appointed to represent appellant on appeal” (emphasis in original)). 

We abate the appeal and remand the cause to the 140th District Court of 

Lubbock County. On remand, the district court shall appoint new counsel to represent 

the mother in this appeal. See In re P.M., 2016 Tex. LEXIS 236, at *8 (“An appellate 

court must ordinarily refer the matter of appointment of replacement counsel to the trial 

court”). The district court shall cause the name, email and postal addresses, telephone 

number, and state bar number of the newly-appointed counsel to be included in a 

supplemental record. The record of that appointment shall be filed with the Clerk of this 

Court on or before February 17, 2017.

Additionally, the district court shall order the newly-appointed counsel to file an 

appellant’s brief, according to the Texas Rules of Appellate Procedure, addressing the 

issue whether the mother was denied a proper de novo hearing before the referring 

district court,5and addressing any other arguably meritorious ground counsel sees for 

 

4 Counsel’s request that she be allowed to withdraw from her representation of 

the mother was included in her prayer for relief in the Anders brief. She did not file a 

motion to withdraw. We disapprove of this procedure. Counsel filing an Anders brief in

a parental rights termination case should file a motion to withdraw, just as in a criminal 

case. See In re Schulman, 252 S.W.3d at 404, 407-08. The court will determine the 

disposition to be made of the motion to withdraw. As the court noted in In re P.M., 2016 

Tex. LEXIS 236, at *8, an “Anders motion to withdraw” filed in the court of appeals may 

be premature. In this case, the motion would not have been premature, and would have 

been granted.

5 By way of example only and not as a limitation on counsel’s briefing, counsel 

may want to consider whether authorities such as AG v. Orr, 989 S.W.2d 464, 467-468 
5

reversal or modification of the district court’s judgment. If counsel contends the court 

erred in any respect, counsel shall address the subject of harm.

Absent a request for extension from newly-appointed counsel, the mother’s brief 

shall be filed no later than twenty days from the date of newly-appointed counsel’s 

appointment. A response brief may be filed by the Department within twenty days after 

the filing of the mother’s brief.6

It is so ordered.

Per Curiam

 

(Tex. App.—Austin 1999, no pet.); Woodard v. Office of the AG of Tex., No. 01-07-

00954-CV, 2009 Tex. App. LEXIS 2090, at *5 (Tex. App.—Houston [1st Dist.] Mar. 26, 

2009, no pet.) (mem. op.); and 22-360A William V. Dorsaneo III, Larry L. Martin, and 

Nicholas V. Rothschild, TEXAS LITIGATION GUIDE § 360A.10[4][b] (Lexis 2016) describe 

the correct de novo hearing procedure before a referring court in a child protection case. 

6

The notice of appeal in this case was filed November 4, 2016. See In re L.S.,

No. 02-16-00197-CV, 2016 Tex. App. LEXIS 10027, at *1 (Tex. App.—Fort Worth Sept. 

8, 2016, no pet.) (mem. op.) (referring to appeals such as this as “ultra-accelerated,”

citing TEX. R. JUD. ADMIN. 6.2(a) (“In an appeal of a suit for termination of the parentchild relationship . . . appellate courts should, so far as reasonably possible, ensure that 

the appeal is brought to final disposition” within 180 days after the notice of appeal is 

filed)). Extensions of time cannot be liberally granted.