Anders v. California, 386 U.S. 738 (1967). 1

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,911

IN RE DAVID SCHULMAN

ON APPLICATION FOR WRIT OF MANDAMUS

IN CAUSE N0. 07-07-0066-CR FROM THE

SEVENTH COURT OF APPEALS 

WILLIAMSON COUNTY

COCHRAN, J., delivered the opinion of the unanimous Court.

OPINION

Mr. David Schulman, the appointed appellate attorney for Marlyn Solanas, filed an

application for a writ of mandamus with this Court claiming that the Seventh Court of

Appeals violated a ministerial duty when it ordered him to file a motion to withdraw as

counsel along with his Anders brief. That brief concludes, as all Anders briefs conclude, 1

that his client’s appeal is “frivolous,” but Mr. Schulman argues that, while counsel for the
In re Schulman Page 2

defense may file an Anders brief, he is not obligated to simultaneously file a motion to

withdraw from representation. This is backwards. Under both Supreme Court and Texas

precedent, when counsel files a motion to withdraw because he believes the appeal is

frivolous, he may simultaneously file an Anders brief. An Anders brief may not be filed

without a motion to withdraw, as the sole purpose of an Anders brief is to explain and

support the motion to withdraw. The court of appeals did not err, much less violate a

ministerial duty. We therefore deny relief on this application for a writ of mandamus.

I.

Pursuant to a plea bargain, Marlyn Solanas pled guilty to intoxication manslaughter

in Williamson County. She was sentenced to ten years’ confinement and a $2,500 fine, but

the trial court placed her on community supervision. Over a year later, the State filed a

motion to revoke, alleging that she had violated terms of her community supervision. Ms.

Solanas pled “True” to the State’s allegations, and the trial judge revoked her community

supervision and sentenced her to ten years’ imprisonment. 

Ms. Solanas filed a timely notice of appeal and Relator, Mr. David Schulman, was

appointed to represent her. The appeal was transferred to the Seventh Court of Appeals in

Amarillo. On May 8, 2007, Mr. Schulman filed an Anders brief with the court of appeals and

mailed a copy of this brief to Ms. Solanas, informing her of his actions and of her right to

review the record of the proceedings and submit a pro se brief if she so desired. 

Mr. Schulman did not simultaneously file a motion to withdraw as counsel with the
In re Schulman Page 3

 T EX. CODE CRIM. PROC. art. 26.04(j)(2); see also TEX. R. APP. P. 6.5 (“An appellate 2

court may, on appropriate terms and conditions, permit an attorney to withdraw from

representing a party in the appellate court.”).

See Ex parte Owens, 206 S.W.3d 670 (Tex. Crim. App. 2006) (holding that the filing of 3

an Anders brief in the court of appeals does not relieve defense counsel of the duty to inform a

defendant that he has a right to file a pro se petition in the Court of Criminal Appeals). 

 Mr. Schulman also advised the court of appeals that “in at least two-thirds of the case[s] 4

in which the undersigned has filed an Anders brief during his career, he has subsequently been

contacted by those clients seeking advice on procedural questions pertaining to either the Anders

brief or the appeal in general.”

court of appeals, although the clerk of the court informed him that he was required to do so.

Instead, he filed a document entitled “Response to Clerk’s Instructions Regarding Motion

to Withdraw.” He explained that, under Article 26.04(j)(2) of the Code of Criminal

Procedure, he was required to “represent the defendant until charges are dismissed, the

defendant is acquitted, appeals are exhausted, or the attorney is relieved of his duties by the

court or replaced by other counsel after a finding of good cause is entered on the record.”2

Mr. Schulman also stated that he was required to inform his client of her right to file a pro

se petition for discretionary review to this Court even though he filed an Anders brief. He 3

noted that prior cases also implied that he must continue to answer questions posed by his

client that “are reasonably related to this case and/or the procedures to be followed in seeking

further review.” Mr. Schulman argued that, from a moral standpoint, “his duty to assist [his

client] is not and cannot be extinguished by the filing of an Anders brief.” Finally, Mr. 4

Schulman lamented that “the procedures used in the various Courts of Appeals regarding this

issue are wholly inconsistent. Some courts of appeals require counsel to file a motion to
In re Schulman Page 4

Solanas v. State, No. 07-07-0066-CR (Tex. App.– Amarillo, May 25, 2007) (per curiam 5

order) (not designated for publication).

Id. at 4. 6

Anders, 386 U.S. at 744. Anders was not the first Supreme Court opinion dealing with 7

the appointed attorney’s duty of zealous representation on appeal or of his obligation to file a

motion to withdraw as counsel when he determines that an appeal would be frivolous. In Ellis v.

withdraw, some take no position, others do not require counsel to withdraw.” He requested

that the Seventh Court of Appeals abandon its “policy” of requiring an attorney who files an

Anders brief to simultaneously file a motion to withdraw as counsel. 

After receiving Mr. Schulman’s response, the court of appeals entered an order

requesting him to reconsider his refusal to file a motion to withdraw and afforded him

additional time to do so. The court noted that Mr. Schulman’s response was “very 5

principled,” but his “insistence on his duty to represent Appellant after the filing of an

Anders brief is misplaced and is, in fact, an impediment to this Court’s role in reviewing an

Anders appeal.” Instead of complying with the court’s order, Mr. Schulman filed an 6

application for writ of mandamus and/or prohibition with this Court. We entered an order

granting Mr. Schulman’s motion to stay the proceedings and affording the court of appeals

an opportunity to respond. The Office of the Attorney General of Texas filed a response on

behalf of the court of appeals. We filed and set this matter for consideration.

II.

A criminal defense attorney’s duty is to zealously represent the interests of his client

on appeal. If the appointed attorney finds the “case to be wholly frivolous, after a 7
In re Schulman Page 5

United States, 356 U.S. 674 (1958), decided nine years before Anders, the Supreme Court stated:

If counsel is convinced, after conscientious investigation, that the appeal is

frivolous, of course, he may ask to withdraw on that account. If the court is

satisfied that counsel has diligently investigated the possible grounds of appeal,

and agrees with counsel’s evaluation of the case, then leave to withdraw may be

allowed and leave to appeal may be denied. 

Id. at 675.

Anders, 386 U.S. at 744; see also McCoy v. Court of Appeals of Wisconsin, District I, 8

486 U.S. 429, 437 (1988) (stating that both retained and appointed appellate attorneys have a

“duty to withdraw” as counsel when they conclude that an appeal would be frivolous, but noting

that appointed counsel “is presented with a dilemma because withdrawal is not possible without

leave of court, and advising the court of counsel’s opinion that the appeal is frivolous would

appear to conflict with the advocate’s duty to the client. It is well settled, however, that this

dilemma must be resolved by informing the court of counsel’s conclusion.”); Wilson v. State, 40

S.W.3d 192, 196 (Tex. App.– Texarkana 2001) (“Under Anders and its progeny, if an appointed

attorney concludes that his client's appeal is without merit, he must (1) so inform the court, (2)

seek permission to withdraw, and (3) file a brief ‘referring to anything in the record that might

arguably support the appeal.’”) (quoting McCoy and Anders).

See Anders, 386 U.S. at 744. As the Supreme Court explained, the attorney’s motion to 9

withdraw 

must, however, be accompanied by a brief referring to anything in the record that

might arguably support the appeal. A copy of counsel’s brief should be furnished

the indigent and time allowed him to raise any points that he chooses; the court–

not counsel–then proceeds, after a full examination of all the proceedings, to

decide whether the case is wholly frivolous. If it so finds it may grant counsel’s

request to withdraw and dismiss the appeal insofar as federal requirements are

concerned, or proceed to a decision on the merits, if state law so requires.

Id. In Texas, an Anders brief need not specifically advance “arguable” points of error if counsel

conscientious examination of it, he should so advise the court and request permission to

withdraw.” It is the motion to withdraw that is required in this situation. The so-called 8

“Anders” brief accompanies the motion to withdraw as an assurance to the appellate court

that the attorney has indeed made a thorough and conscientious examination of the record,

has provided the appellate court with the appropriate facts of the case and its procedural

history, and has pointed out any potentially plausible points of error. In Anders, the 9
In re Schulman Page 6

finds none, but it must provide record references to the facts and procedural history and set out

pertinent legal authorities. See Hawkins v. State, 112 S.W.3d 340, 343-44 (Tex. App.–Corpus

Christi 2003, no pet.).

Id. at 742-43. In Anders, the appointed appellate attorney wrote the court of appeals the 10

following letter:

I will not file a brief on appeal as I am of the opinion that there is no merit

to the appeal. I have visited and communicated with Mr. Anders and have

explained my views and opinions to him . . . . He wishes to file a brief in this

matter on his own behalf.

Id. at 742.

Id. at 742-44. 11

McCoy, 486 U.S. at 436 (citing ABA Standards for Criminal Justice, Commentary to 12

4–3.9 (2d ed. 1980)). The Supreme Court then quoted the Seventh Circuit:

A lawyer, after all, has no duty, indeed no right, to pester a court with frivolous

arguments, which is to say arguments that cannot conceivably persuade the court,

so if he believes in good faith that there are no other arguments that he can make

Supreme Court held that the appellate attorney could not fulfill his obligation to represent his

client by filing a letter merely stating that he has concluded that the appeal is frivolous.10

Such a “no-merit letter,” setting out nothing more than a “bare conclusion,” is not enough

to assure the appellate courts that the attorney has made a thorough review of the record and

the applicable law, but has nonetheless concluded that there is no plausible basis for appeal.11

The attorney’s duty to withdraw is based upon his professional and ethical

responsibilities as an officer of the court not to burden the judicial system with false claims,

frivolous pleadings, or burdensome time demands. The Supreme Court has stated,

Neither paid nor appointed counsel may deliberately mislead the court with

respect to either the facts or the law, or consume the time and the energies of

the court or the opposing party by advancing frivolous arguments. An

attorney, whether appointed or paid, is therefore under an ethical obligation to

refuse to prosecute a frivolous appeal.12
In re Schulman Page 7

on his client's behalf he is honorbound to so advise the court and seek leave to

withdraw as counsel.

Id. (quoting United States v. Edwards, 777 F.2d 364, 365 (7 Cir.1985) (emphasis added)).

th

As Professors Dix and Dawson have explained in their treatise,

States have a legitimate interest in being able to develop and implement

procedures which identify frivolous appeals and permit resolution of them without

the cost of providing the defendant-appellant with counsel’s help in preparing and

submitting a full merits brief. Such procedures must also, of course, protect other

appellants with nonfrivolous appeals from being denied their right to full

assistance of counsel in pursuing those nonfrivolous appeals.

42 GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE AND

PROCEDURE § 24.148, at 327 (2d ed. 2001).

See Johnson v. State, 885 S.W.2d 641, 647 n.1 (Tex. App.–Waco 1994, pet. ref’d),

13

modified by Wilson v. State, 955 S.W.2d 693 (Tex. App.– Waco 1997, no pet.) (“After

concluding that the appeal is frivolous, the attorney is under a duty to request permission from

this court to withdraw from the appeal”; stating that an Anders brief is “a brief in support of the

motion to withdraw”).

See Anders, 386 U.S. at 745 (noting that the Anders brief would “induce the court to 14

pursue all the more vigorously its own review because of the ready references not only to the

record, but also to the legal authorities as furnished by counsel.”); High v. State, 573 S.W.2d 807,

811 (Tex. Crim. App. [panel op.] 1978) (by filing an Anders brief “which supplies ready

references to the record and legal authorities, counsel aids the reviewing court in studying a cold

Counsel’s obligation to his client is to seek leave to withdraw as counsel. His

obligation to the appellate courts is to assure them, through the mechanism of an Anders

brief, that, after thorough investigation and research, his request is well founded.13

The Anders brief reflects the fact that the appointed attorney has adequately

researched the case before requesting to withdraw from further representation. It also sets

out the attorney’s due diligence investigation on behalf of his client. It has an additional use

for the appellate courts: it provides them with a roadmap for their review of the record

because the court itself must be assured that the attorney has made a legally correct

determination that the appeal is frivolous. It has an additional use for the defendant: it

14
In re Schulman Page 8

record.”).

See Anders, 386 U.S. at 744 (noting that the attorney must furnish his indigent client 15

with a copy of the Anders brief referring to anything in the record that might arguably support the

appeal,” and that defendant may “raise any points that he chooses” in a pro se brief). 

Anders, 386 U.S. at 745. 16

See Jeffrey v. State, 903 S.W.2d 776, 779-80 (Tex. App.–Dallas 1995, no pet.) 17

(discussing Anders procedure and stating that “[i]f an attorney believes the appeal is frivolous, he

must withdraw from representing the appellant. To withdraw from representation, the appointed

attorney must file a motion to withdraw accompanied by a brief showing the appellate court that

the appeal is frivolous.”) (citations omitted).

Smith v. Robbins, 528 U.S. 259, 276 (2000). 18

Id. 19

 High v. State, 573 S.W.2d 807, 813 (Tex. Crim. App. [panel op.]1978) (adopting the 20

Anders procedure and suggesting that the Supreme Court mandated that particular procedure for

provides him with appropriate citations to the record if he wishes to exercise his right to file

a pro se brief. And it has an additional use for the appointed attorney: it protects him 15

“from the constantly increasing charge that he was ineffective and had not handled the case

with that diligence to which an indigent defendant is entitled.” Despite its helpfulness to 16

all concerned, the Anders brief is only the proverbial “tail”; the motion to withdraw is “the

dog.” 

17

Of course, the Anders procedure is not constitutional dogma. It is “merely one method

of satisfying the requirements of the Constitution for indigent criminal appeals.” Texas is 18

free to adopt other procedures as long as they meet federal constitutional requirements.

19

Although Texas may choose to adopt a different mechanism for dealing with frivolous

appeals, it has thus far followed the Anders procedure. 

20
In re Schulman Page 9

federal constitutional purposes); see also Stafford v. State, 813 S.W.2d 503, 509-11 (Tex. Crim.

App. 1991). In this Court’s most recent cases, Ex parte Owens, 206 S.W.3d 670 (Tex. Crim.

App. 2006), and Meza v. State, 206 S.W.3d 684 (Tex. Crim. App. 2006), we have continued to

apply the Anders brief procedures. 

See Stafford, 813 S.W.2d at 510. A defendant who fails to keep his attorney informed 21

of his current address forfeits the right to receive a copy of the Anders brief and the right to file a

pro se brief. Gonzales v. State, 903 S.W.2d 404, 405 (Tex. App.–Texarkana 1995, no pet.).

See Johnson v. State, 885 S.W.2d 641, 647 n.1 (Tex. App.–Waco 1994, pet. ref’d),

22

modified by Wilson v. State, 955 S.W.2d 693 (Tex. App.– Waco 1997, no pet.) (noting that

“[a]lthough a variety of methods of demonstrating that the client has been informed of his pro-se

rights have been utilized and accepted by the courts, we believe that the best approach is to

provide this court a copy of a letter sent to the defendant with the attorney's brief in support of

the motion to withdraw in which counsel has outlined the defendant’s pro-se rights and the steps

necessary to exercise those rights.”).

Under the newly revised Rule 25.2 of the Texas Rules of Appellate Procedure and the

revised Certificate of Appeal form, the defendant will have been informed of his right to file a

pro se PDR at the time that he makes a decision to file a notice of appeal. TEX. R. APP. P.

25.2(d), (e), (h); Appendix (Certification of Defendant’s Right of Appeal). This information will

be repeated at the time that counsel sends the defendant a copy of the court of appeals’s opinion

if the defendant has kept the attorney informed of his then-current mailing address. TEX. R. APP.

P. 48.4.

Some courts of appeals have even implemented a helpful procedure in which they

reiterate the appellant’s right to file a pro se PDR and set out the time line for doing so in their

opinion. See, e.g., Glover v. State, No. 06-07-00060-CR, 2007 Tex. App. LEXIS 9162 (Tex.

App.– Texarkana, Nov. 20, 2007, pet. ref’d) (not designated for publication). In Glover, an

Anders case, the Texarkana Court of Appeals agreed with appellate counsel that there were no

Although the defense attorney is required to file a motion to withdraw at the same time

that he files an Anders brief, the court of appeals will not grant that motion until: 

(1) the attorney has sent a copy of his Anders brief to his client along with a letter

explaining that the defendant has the right to file a pro se brief within thirty

days, and he has ensured that his client has, at some point, been informed of

his right to file a pro se PDR;21

(2) the attorney has informed the court of appeals that he has performed the above

duties;22
In re Schulman Page 10

arguable points of error and noted:

Since we agree this case presents no reversible error, we also, in accordance with

Anders, grant counsel’s request to withdraw from further representation of Glover

in this case. No substitute counsel will be appointed. Should Glover wish to seek

further review of this case by the Texas Court of Criminal Appeals, Glover must

either retain an attorney to file a petition for discretionary review or Glover must

file a pro se petition for discretionary review. Any petition for discretionary

review must be filed within thirty days from the date of either this opinion or the

last timely motion for rehearing that was overruled by this Court. See TEX. R.

APP. P. 68.2. Any petition for discretionary review must be filed with this Court,

after which it will be forwarded to the Texas Court of Criminal Appeals along

with the rest of the filings in this case. See TEX. R. APP. P. 68.3. Any petition for

discretionary review should comply with the requirements of Rule 68.4 of the

Texas Rules of Appellate Procedure. See TEX. R. APP. P. 68.4.

Id. at *7-8 n.1. While this advisory by the court of appeals is not required, it is commendable.

See Johnson, 885 S.W.2d at 647 n.3 (adopting a thirty-day time period in which the 23

defendant may file a pro se responsive brief). This brief is not one subject to the requirements of

TEX. R. APP. P. 74 because its purpose is not to permit the court of appeals to decide the case on

the merits; it is intended only to alert the appellate court to any matters that the defendant

believes might be arguable in a brief on the merits. Wilson v. State, 955 S.W.2d 693, 696-97

(Tex. App.–Waco 1997, no pet.) (concluding that “the pro se response need not comply with the

rules of appellate procedure in order to be considered. Rather, the response should identify for

the court those issues which the indigent appellant believes the court should consider in deciding

whether the case presents any meritorious issues.”). Thus, the defendant’s pro se “brief” is not

an example of a forbidden hybrid representation because the pro se filing is not a merits brief, it

is merely an informal opportunity for the indigent defendant to present what he believes are

claims or issues or areas of procedural or substantive concern that arguably deserve a full merits

brief by a second attorney. See Bledsoe v. State, 178 S.W.3d 824, 827 (Tex. Crim. App. 2005).

Stafford, 813 S.W.2d at 510-11. 24

(3) the defendant has had time in which to file a pro se response; and 23

(4) the court of appeals has itself reviewed the record, the Anders brief, and any

pro se brief. 

24

After the completion of these four steps, the court of appeals will either agree that the appeal

is wholly frivolous, grant the attorney’s motion to withdraw, and dismiss the appeal, or it will
In re Schulman Page 11

Id. 25

See Tellez v. State, 880 S.W.2d 247, 248 (Tex. App.– El Paso 1994, no pet.) (per

26

curiam) (in its review, appellate court found arguable error regarding voluntariness of confession,

therefore it abated the appeal and remanded it to the trial court for appointment of new counsel);

see generally, DIX & DAWSON, supra note 12, at §§ 24.149-24.156.

See Smith v. Robbins, 528 U.S. 259, 280-84 (2000). 27

 Application for Writ of Mandamus at 3 (citing to his Response to Clerk’s Instructions 28

Regarding Motion to Withdraw). Relator states that he must “continue to offer answers to

questions posed by Appellant that are reasonably related to this case and/or procedure to be

followed in seeking further review. ¶ Finally, from a moral standpoint, the undersigned suggests

that his duty to assist Appellant is not and cannot be extinguished by the filing of an Anders

brief.”

determine that there may be plausible grounds for appeal. If the court of appeals decides 25

that there are any colorable claims for appeal, it will: (1) grant the original attorney’s motion

to withdraw; and (2) abate the case and send it back to the trial court to appoint a new

attorney with directions to file a merits brief.26

III.

This particular procedure, though not required by the federal constitution, seems to 27

work relatively well in Texas. We see no reason to change it at this time. And under this

procedure, the Seventh Court of Appeals appropriately ordered the Relator, Mr. Schulman,

to file a motion to withdraw as a condition precedent to filing his Anders brief. 

The Relator, in his application for a writ of mandamus, argues that he should not be

required to file a motion to withdraw because he still had “legal and moral duties to his

client.” He argues that the discussion in Anders concerning the requirement that an 28
In re Schulman Page 12

Id. at 9. 29

 Smith v. Robbins, 528 U.S. 259, 265 (2000). 30

Id.

31

appointed attorney who finds that any appeal would be frivolous must file a motion to

withdraw was “obiter dicta, having no import to the core holding of the case.” We are 29

unable to find any authority from any jurisdiction for the proposition that the Supreme

Court’s discussion of the requirement that counsel file a motion to withdraw is mere obiter

dicta. Instead, in Smith v. Robbins, the Supreme Court drew back from the proposition that

the “Anders brief” procedure was a constitutional requirement. It concluded that “[t]he

procedure we sketched in Anders is a prophylactic one; the States are free to adopt different

procedures, so long as those procedures adequately safeguard a defendant’s right to appellate

counsel.”30

The Relator correctly notes that there is a need for uniform procedures for those cases

in which an Anders brief is filed, especially as the Texas Rules of Appellate Procedure do

not provide any explicit guidance. The Anders procedure is simply one judicially created,

prophylactic means that the Supreme Court suggested to safeguard a defendant’s

constitutional right to appellate counsel. The Texas Legislature is free to adopt other means 31

should it so chose, and the courts of Texas could implement an alternate procedure should

it prove more beneficial and appropriate. But in the meantime, we will continue to adhere

to the original rationale and procedural guidelines set out in Anders.
In re Schulman Page 13

See, e.g., Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim. App. 2006) (holding that

32

“the courts of appeals have jurisdiction and authority to grant a motion to withdraw that

accompanies an Anders brief whenever, as here, they find that appellate counsel has exercised

professional diligence in assaying the record for error, and they agree that the appeal is frivolous.

In such circumstances the court of appeals should grant the motion to withdraw. If, on the other

hand, they believe either that appellate counsel has not adequately discharged his constitutional

duty to review the record for any arguable error, or that the appeal is not wholly frivolous,

notwithstanding appellate counsel’s efforts, they must then abate the appeal and return the cause

to the trial court for the appointment of new appellate counsel[.]”); Stafford v. State, 813 S.W.2d

503, 511 (Tex. Crim. App. 1991) (“After an attorney files a proper Anders brief (which should be

filed with a request for withdrawal from the case) and the appellant is afforded an opportunity to

respond, the Court of Appeals–not the attorney–must conduct its own investigation of the record

to discover if there are arguable grounds. If grounds are deemed arguable, the Court of Appeals

then must abate the appeal and remand the case to the trial court with orders to appoint other

counsel to present those and any other grounds that might support the appeal. As we read

Anders, counsel filing a frivolous brief must be allowed to withdraw from the case and

consequently cannot be ordered to argue grounds that she had previously determined to be

without merit.”) (footnote omitted); In re J.L.M, ___ S.W.3d __, No. 12-07-00013-CV, 2008

Tex. App. LEXIS 658 *3 (Tex. App.– Tyler, January 31, 2008, no pet. h.) (noting that appellate

counsel filed Anders brief and “moved for leave to withdraw. We carried the motion with our

consideration of the merits. Having done so and finding no reversible error, Appellant’s

counsel’s motion for leave to withdraw is hereby granted and the trial court’s judgment is

affirmed.”); Morales v. State, No. 11-06-00241-CR, 2007 Tex. App. LEXIS 5010 * 2 (Tex.

App.– Eastland, June 28, 2007, no pet. h.) (not designated for publication) (“Appellant’s courtappointed counsel has filed a motion to withdraw. The motion is supported by a brief in which

counsel professionally and conscientiously examines the record and applicable law and states that

he has concluded that the appeal is frivolous. . . . Counsel has provided appellant with a copy of

the brief and advised appellant of his right to review the record and file a response to counsel’s

brief. A response has not been filed. Court-appointed counsel has complied with the

requirements of Anders”).

Relator and some courts of appeals may share in some confusion concerning the

distinction between the filing of a motion to withdraw and the granting of that motion.

Under the Anders procedure, the motion to withdraw will not be granted until the appellate

court decides whether the appeal is, in fact, wholly frivolous, or whether there are any

arguable claims of merit. In either event, the motion to withdraw will then be granted and 32

either the appeal will be dismissed or the case abated to the trial court for appointment of
In re Schulman Page 14

 The duty to send the client a copy of the court of appeals’s decision is an informational 33

one, not a representational one. It is ministerial in nature, does not involve legal advice, and

exists after the court of appeals has granted counsel’s motion to withdraw. This informational

duty could have been placed upon the appellate courts themselves, but because counsel is usually

better informed about his former client’s whereabouts, it has been placed on his shoulders. If,

however, the client has not kept counsel informed of his current address, then counsel cannot be

held responsible for his client’s failure to timely receive a copy of the appellate opinion or notice

of his right to timely file a pro se PDR. 

 As explained in note 22, supra, the trial court’s certification of the right to appeal now 34

includes an advisory concerning the appellant’s right to file a pro se PDR. This is not an instance

in which the trial judge is giving legal advice to the defendant, he is merely informing that person

of his statutory right to appeal. The same is true when appellate counsel sends his now-former

client a copy of the court of appeals’s opinion and the required information concerning the

appellant’s statutory right to file a pro se PDR. Of course, as we stated in Ex parte Owens, 206

S.W.3d 670, 674 n.4 (Tex. Crim. App. 2006), “[t]here is no particular reason that counsel filing

an Anders brief cannot alert his client to the client’s right to file a petition for discretionary

review at the same time that he informs his client of his rights to file a pro se appellate brief[.]”

 New TEX R. APP. P. 48.4, entitled Opinion Sent to Criminal Defendant, states, 35

In criminal cases, the attorney representing the defendant on appeal shall, within

five days after the opinion is handed down, send his client a copy of the opinion

and judgment, along with notification of the defendant’s right to file a pro se

petition for discretionary review under Rule 68. This notification shall be sent

certified mail, return receipt requested, to the defendant at his last known address.

The attorney shall also send the court of appeals a letter certifying his compliance

with this rule and attaching a copy of the return receipt within the time for filing a

motion for rehearing. The court of appeals shall file this letter in its record of the

appeal.

Id. This rule applies when appellate counsel files an Anders brief as well as when he files a

merits brief. Again, this duty is informational, not representational.

new counsel. Counsel’s duties to his client are not extinguished until that time. Until his

Anders motion to withdraw is granted, counsel represents his client, must send his client a

copy of the Anders brief, must inform him of his right to file a pro se response, must respond

to his client’s questions, must send him a copy of the decision by the court of appeals, must 33

ensure that his client has been informed of his right to file a pro se PDR, and so forth. But 34 35
In re Schulman Page 15

the court of appeals cannot proceed in an orderly way in the Anders situation until and unless

counsel has filed a motion to withdraw. 

Because the Seventh Court of Appeals was correct in its Order that Mr. Schulman

must file a motion to withdraw before that court can proceed further in this appeal, we deny

mandamus relief.

Delivered: April 30, 2008

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