NUMBER 13-13-00353-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE MATTER OF J. M. S. M., A CHILD

On appeal from the 357th District Court of 

of Cameron County, Texas.

ORDER ABATING APPEAL

Before Justices Rodriguez, Garza, and Perkes

Order Per Curiam

This cause is before the Court on appellant’s counsel’s failure to file the brief by 

January 2, 2014. The brief was originally due on November 1, 2013, and this Court 

granted counsel’s motion for extension of time and directed counsel to file the brief on or 

before January 2, 2014. On January 14, 2014, the Clerk of the Court notified appellant’s 

counsel that the brief had not been filed and requested a response concerning the failure 
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to file the brief within ten days. Counsel has nevertheless failed to file either a response 

or an appellate brief in this matter.

According to section 56.01(b) of the Texas Family Code, "the requirements 

governing [a juvenile] appeal are as in civil cases generally." TEX. FAM. CODE ANN. §

56.01(b) (Vernon 2002). Rule of Appellate Procedure 38.8(a)(1) provides that an 

appellate court may dismiss a civil appeal for want of prosecution if the appellant's brief 

is untimely and the appellant fails to provide a reasonable explanation. However, we 

decline to follow Rule 38.8(a)(1) because of the liberty interest at stake in a juvenile 

delinquency appeal. See TEX. R. APP. P. 38.8(a)(2) (when appellant's brief is late, 

appellate court may "decline to dismiss the appeal and give further direction to the case 

as it considers proper"); see also In re T.V., 8 S.W.3d 448, 449-50 (Tex. App.--Waco 

1999, order) (per curiam) (abating rather than dismissing appeal involving termination of 

parental rights when appellant's brief was overdue).

We have a duty to ensure that appellant’s rights are protected, particularly given 

that a juvenile is entitled to effective assistance of counsel. See In re M.A.D., 167 S.W.3d 

938, 939 (Tex. App.--Waco 2005, order); In re K.J.O., 27 S.W.3d 340, 342 (Tex. 

App.BDallas 2000, pet. denied). Accordingly, we ABATE and REMAND this matter for 

further proceedings pursuant to Rule 38.8(b)(2) and (3) of the Texas Rules of Appellate 

Procedure. Upon remand, the trial court shall utilize whatever means necessary to make 

appropriate findings and recommendations concerning the following: (1) whether 

appellant desires to prosecute this appeal; (2) why appellant's counsel has failed to file a 

brief and whether counsel has effectively abandoned the appeal; (3) whether appellant 
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has been denied effective assistance of counsel; (4) whether appellant's counsel should 

be removed; and (5) whether appellant is indigent and entitled to court-appointed counsel.

If the trial court determines that appellant does want to continue the appeal, that 

present counsel should be removed, and that appellant is indigent and entitled to 

court-appointed counsel, the trial court shall appoint new counsel to represent appellant 

in this appeal. If new counsel is appointed, the name, address, telephone number, and 

state bar number of said counsel shall be included in an order appointing counsel.

The trial court shall cause its findings and recommendations, together with any 

orders it may enter regarding the aforementioned issues, to be included in a supplemental 

clerk's record. Furthermore, the trial court shall cause a supplemental reporter's record 

of any proceedings to be prepared. The supplemental clerk's record and supplemental 

reporter's record, if any, shall be filed with the Clerk of this Court on or before the 

expiration of thirty days from the date of this order.

It is so ORDERED.

PER CURIAM

Delivered and filed the 

20th day of February, 2014.