                                 NO. 07-07-0320-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL A

                                  AUGUST 24, 2007

                        ______________________________


                             DAMON COX, APPELLANT

                                          V.

                          ANGELA SIMMONS, APPELLEE

                      _________________________________

                 FROM THE COUNTY COURT OF GRAY COUNTY;

                NO. 4585; HONORABLE RICHARD D. PEET, JUDGE

                        _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                            ABATEMENT AND REMAND


      Appellant, Damon Cox, proceeding pro se, appeals the entry of a Family Violence

Protective Order issued pursuant to Chapter 85 of the Texas Family Code on application

of Appellee, Angela Simmons.1 Pending before this Court is Cox’s “Notice of Extinuating


      1
       Section 81.009 of the Texas Family Code permits an appeal from the rendition of
a protective order.
(sic) Circumstances and Case History,” wherein he requests the appointment of counsel

to “handle any further proceedings in this matter.”2


       Whether an indigent appellant is entitled to appointed counsel to prosecute an

appeal concerning the rendition of a family violence protection order has not yet been

decided by the courts of this State. The issue was discussed, however, in Striedel v.

Striedel, 15 S.W.3d 163, 167 (Tex.App.–Corpus Christi 2000, no pet.), wherein the

appellate court reversed the entry of a protection order on grounds unrelated to the

appointment of counsel. In that case the court expressed concern regarding the trial

court’s failure to consider appointment of counsel for the appellant upon his filing of an

affidavit of indigency. The court recommended that in the event of a retrial, the trial court

“give additional consideration to appellant’s right to appointed counsel.” Id.


       In arriving at its recommendation, the Corpus Christi Court of Appeals discussed the

factors set out in Lassiter v. Department of Soc. Servs. of Durham County, N.C., 452 U.S.

18, 27-33, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). In determining when the right to

appointed counsel may be invoked in a civil proceeding, the Supreme Court balanced the

factors set out in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18

(1976), against the general presumption that there is a right to appointed counsel only in

those situations where the indigent, if unsuccessful, may lose his personal freedom.



       2
        Cox notes that his attorney of record appointed to handle allegations concerning
the violation of the protective order is Joshua Woodburn.

                                             2
Lassiter, 452 U.S. at 27. Those factors include: (1) the private interest that will be affected

by the official action; (2) the risk of an erroneous deprivation of a private interest through

the procedures used, and the probable value, if any, of additional or substitute procedural

safeguards; and (3) the Government’s interest, including the function involved and the

fiscal and administrative burdens that the additional or substitute procedural requirement

would entail.


       The Legislature vests a district judge with discretion to appoint counsel to a civil

litigant who makes an affidavit that he is too poor to employ counsel. Tex. Gov’t Code Ann.

§ 24.016 (Vernon 2004). The Supreme Court has recognized that in some exceptional

cases, considering the public and private interests at stake, the effective administration of

justice is best served by appointing counsel to represent an indigent civil litigant. See

Travelers Indem. Co. of Connecticut v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996). See

also Knie v. Piskun, 23 S.W.3d 455, 461 (Tex.App.–Amarillo 2000, pet. denied).


       Where incarceration is a possible result of a contempt proceeding, an indigent

respondent is entitled to the appointment of counsel. See Tex. Fam. Code Ann. §

157.163(b) (Vernon 2002). See also Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997);

Ex parte Keene, 909 S.W.2d 507, 508 (Tex. 1995) (applying former § 14.32(f)). When the

issue of indigency is raised, the trial court is obligated to inform the respondent of that right.

Ex parte Walker, 748 S.W.2d 21, 22 (Tex.App.–Dallas 1988, no writ). Additionally, unless




                                                3
such advice is given, a party’s failure to request counsel is not a waiver of his constitutional

right to assistance of counsel. Id.


       Furthermore, in a suit brought by a governmental entity to terminate parental rights

of an indigent parent, that parent has a statutory right to appointed counsel. See Tex.

Fam. Code. Ann. § 107.013(a)(1) (Vernon Supp. 2006). See also In re M.S., 115 S.W.3d

534, 544 (Tex. 2003). Additionally, juveniles who may be found to be delinquent and

subjected to loss of liberty also have the right to appointed counsel. See In re Gault, 387

U.S. 1, 41, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re D.A.S., 973 S.W.2d 296, 298 (Tex.

1998); Matter of R.S.C., 940 S.W.2d 750, 751-52 (Tex.App.–El Paso 1997, no writ). The

Legislature has mandated that indigent juveniles receive the assistance of appointed

counsel on appeal. Tex. Fam. Code Ann. §§ 51.10(f)(2) and 56.01(d)(3) (Vernon 2002 &

Supp. 2006).


       An application for court-ordered mental health services also triggers the

appointment of counsel for a proposed patient. Tex. Health & Safety Code Ann. §

574.003(a) (Vernon 2003). This Court, relying on Heryford v. Parker, 396 F.2d 393 (10th

Cir. 1968), noted that in mental health proceedings, the State undertakes to act in parens

patriae, thereby imposing on the State a duty to accord due process, which necessarily

includes the duty to ensure that a person subjected to such proceedings is afforded the

opportunity of legal counsel at every step therein, including on appeal. State for Best

Interest & Protection of Ortiz, 640 S.W.2d 67 (Tex.App.–Amarilllo 1982, no writ).


                                               4
       Ultimately, the decision on whether due process requires the appointment of

counsel for an indigent party to a proceeding involving a family violence protective order

is a matter for the trial court to determine in its discretion on a case by case basis. That

determination would, of course, be subject to appellate review. Therefore, we abate this

appeal and remand the cause to the trial court to utilize whatever means it finds necessary

to determine:


       (1) whether Cox is indigent; and
       (2) whether, based on the authorities cited herein, Cox should be afforded
       the assistance of appointed counsel in prosecuting this appeal.


The trial court shall enter an order either granting or denying Cox’s request for appointment

of counsel. If counsel is appointed to represent Cox, counsel’s name, address, telephone

number, and state bar number shall be provided to the Clerk of this Court. The trial court’s

order shall be included in a supplemental clerk’s record to be filed with the Clerk of this

Court on or before Monday, September 17, 2007. Pending the filing of the supplemental

clerk’s record, or until further order of this Court, all appellate deadlines are suspended.


       It is so ordered.


                                                  Per Curiam




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