


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-06-00350-CV
 
In the
Interest of K.D., a Child
 
 
 
 

From the County Court
Hill County, Texas
Trial Court No. 42255
 

ORDER

 




            Before the Court are (1) a motion by
Appellant Fleasha Hurt’s appointed counsel to withdraw from representing Hurt
following this Court’s recent affirmance of a decree terminating Hurt’s
parental rights and (2) a motion to extend the time for filing a motion for
rehearing.  See In re K.D., No. 10-06-00350-CV, 2007 WL 2446755 (Tex. App.—Waco Aug. 29, 2007, no pet. h.) (mem. op.).  We will deny both motions.
            An indigent person such as Hurt has a statutory
right to appointed counsel and a right to effective representation of counsel
in a suit filed by the State for termination of parental rights.  See Tex. Fam. Code Ann. § 107.013(a)(1)
(Vernon Supp. 2006); In re M.S., 115 S.W.3d 534, 544 (Tex. 2003); In
re K.K., 180 S.W.3d 681, 684 (Tex. App.—Waco 2005, order, no pet.) (per
curiam).  These rights also apply to a direct appeal.  K.K., 180 S.W.3d at
684; In re E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order, no
pet.) (per curiam); In re T.V., 8 S.W.3d 448, 449-50 (Tex. App.—Waco 1999,
order) (per curiam), disp. on merits, 27 S.W.3d 622 (Tex. App.—Waco 2000,
no pet.).
            The right to counsel in parental-rights
termination cases is of a different species than that applicable in criminal
cases, although courts frequently refer to criminal decisions in defining the
scope of this right.  See, e.g., Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 31-32, 101 S. Ct. 2153, 2162, 68 L. Ed. 2d 640 (1981); M.S., 115 S.W.3d at 544-45
& nn.32-39; E.L.Y., 69 S.W.3d at 839-42.  We do so here to aid in
our determination of the scope of the right to appellate counsel once a court
of appeals has rendered an opinion and judgment affirming a termination decree.
            We begin with the proposition that a
criminal appellant has no constitutional right to assistance of counsel to
pursue discretionary review in the Court of Criminal Appeals after this Court
affirms the conviction.  See Ross v. Moffitt, 417 U.S. 600, 618-19, 94  S. Ct. 2437, 2447-48, 41 L. Ed. 2d 341 (1974); Ex parte Owens, 206
S.W.3d 670, 673 (Tex. Crim. App. 2006).  However, “[c]ounsel may not deny the
defendant the right or opportunity to avail himself of discretionary review,
but counsel need not discuss the merits of such review because a defendant has
no right to counsel for discretionary review.”  Owens, 206 S.W.3d at 673
(quoting Ex parte Wilson, 956 S.W.2d 25, 27 (Tex. Crim. App. 1997) (per
curiam)).
            With this understanding, the Court of
Criminal Appeals in Wilson defined the scope of counsel’s
responsibilities after an intermediate court of appeals affirms a conviction.
            The scope of the duty attached to
counsel is governed by the right to which that duty attaches.  The right to
counsel on an appeal of right, under Art. 26.04, ends with the conclusion of
the direct appeal.  That means counsel on appeal must inform a defendant of the
result of the direct appeal and the availability of discretionary review.  But,
because there is no right to counsel on discretionary review, the duty of
counsel ends there.  While it may be wiser to give more complete information to
a defendant, it is neither constitutionally nor statutorily required.
 
Wilson,
956 S.W.2d at 27.  The Court of Criminal Appeals has recently re-affirmed the
scope of counsel’s duty in the context of an Anders[1]
appeal.  See Owens, 206 S.W.3d at 674.
            The review available in the Supreme
Court in a parental-rights termination appeal is similar to the discretionary
review available in the Court of Criminal Appeals in criminal appeals.  Compare
Tex. Fam. Code Ann. § 109.002
(Vernon 2002), § 263.405 (Vernon Supp. 2006); Tex.
Gov’t Code Ann. § 22.001 (Vernon 2004); and Tex. R. App. P. 53.1 with Tex. Code Crim. Proc. Ann. art. 44.45(b) (Vernon 2006) and Tex. R. App. P. 68.1.  However, the respective
statutes governing appointment of counsel are quite different.
            Section 107.013 of the Family Code
provides for the appointment of counsel for an indigent parent “[i]n a suit”
filed by the State for termination of parental rights.  Tex. Fam. Code Ann. § 107.013(a)(1).  Section 107.013 does
not place any particular restrictions on the appointment or the length of
appointment.  Conversely, article 26.04 of the Code of Criminal Procedure
provides that appointed counsel shall “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.”  Tex. Code Crim. Proc. Ann. art.
26.04(j)(2) (Vernon Supp. 2006) (emphasis added).
            In light of the express language of
article 26.04, the Court of Criminal Appeals thus concluded that appointed
counsel’s representation “ends with the conclusion of the direct appeal.”  Wilson, 956 S.W.2d at 27; accord Owens, 206 S.W.3d at 673-74.
            Because there is no statutory
limitation on the duration of the representation in a parental-rights
termination appeal, we look instead to the trial court’s order appointing
counsel.  Here, the order appointing trial counsel for Hurt provided that the
appointment would “remain in effect during the pendency of this suit or until
further order of this Court.”  When trial counsel sought to withdraw for the
appointment of appellate counsel, the order permitting the withdrawal and
appointing new counsel did not expressly modify the scope or duration of the
appointment.  Therefore, we presume that the originally stated scope of
representation (i.e., “during the pendency of this suit”) remained in
effect with the appointment of appellate counsel.
            Applying this construction to the
order appointing Hurt’s appellate counsel, we hold that counsel is obligated to
continue representing Hurt until “this suit” is concluded, including
representation in this Court and in the Supreme Court.
            Counsel also requests an extension of
time for Hurt to file a motion for rehearing.  With regard to a motion for
rehearing, counsel states that he:
does not believe there is a credible basis on
which to proceed further either with a request for rehearing in this cause, or
for further relief in the Supreme Court of Texas, and has so personally advised
the client via a lengthy telephone conversation on September 8, 2007, followed
by two confirming letters via US mail.
 
This is in essence a contention that there is no
arguable basis for seeking rehearing in this Court or review in the Supreme
Court (i.e., an Anders contention).  See Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); see also E.L.Y.,
69 S.W.3d at 841.
            We hold that the motion-for-rehearing
phase of a direct appeal is not the proper stage for raising an Anders
contention.  If counsel truly believed that Hurt’s appeal presented no arguable
grounds for reversal, then counsel could have filed an Anders brief.  See
E.L.Y., 69 S.W.3d at 841.
            Nevertheless, if counsel believes
there are no arguable grounds for review in the Supreme Court, counsel should
file appropriate motions[2] with
the Supreme Court urging this position.  Otherwise, counsel should file a
petition for review as directed by Hurt.  See Tex. Disciplinary R. Prof’l Conduct 1.02(a)(1) (“a lawyer
shall abide by a client’s decisions . . . concerning the objectives and general
methods of representation”), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A. (Vernon 2005)
(Tex. State Bar R. art. X, § 9).
            For the foregoing reasons, we deny
counsel’s motion to withdraw and the motion for an extension of time to file a
motion for rehearing.[3]
PER CURIAM
 
Before Chief Justice
Gray,
Justice
Vance, and
Justice
Reyna
Motions denied
Order issued and filed
October 5, 2007
Publish




[1]
              Anders v. California,
386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967).


[2]
              Arguably, such motions may
include a motion for an extension of time to file the petition for review and
an Anders-style motion to withdraw accompanied by a supporting brief.  Cf.
In re E.L.Y., 69 S.W.3d 838, 839-40 (Tex. App.—Waco 2002, order, no pet.).


[3]
              We also note that, based on
the date of this Court’s judgment affirming the termination decree, any
petition for review must be filed with the Supreme Court on or before Monday,
October 15, 2007 and any extension must be filed on or before Tuesday, October
30, 2007.  See Tex. R. App. P. 53.7(a)(1),
(f).


