                             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
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



                                             2
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.




                                              3
