




02-11-417-CV





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO.  02-11-00417-CV
 



IN RE J.R.J.  


 


RELATOR




 




 


 


 



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original proceeding
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OPINION
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I. 
Introduction
          In
this original proceeding, we address whether the trial court abused its
discretion by ordering Relator J.R.J.’s counsel not to file a notice of appeal
on Relator’s behalf unless Relator first communicated to counsel his desire to
appeal the judgment terminating Relator’s parental rights.  Because we hold
that the trial court abused its discretion and that Relator has no adequate
remedy by appeal, we conditionally grant the writ of mandamus.
II. 
Background
The
trial court signed a judgment on September 26, 2011, terminating Relator’s
parental rights to his three-year-old son.  Although represented by
court-appointed counsel, Relator did not appear at trial.  On September 27,
2011, Relator’s counsel filed a motion for substitution of counsel.  Counsel stated
in the motion that he is not on the Denton County Appellate Appointment list
and requested that appellate counsel be appointed for Relator.  Counsel also
acknowledged in the motion that he had not been able to contact Relator.  Department
of Family and Protective Services (the Department) opposed the motion to
substitute counsel, arguing at the September 29, 2011 hearing that appellate
counsel should not be appointed until Relator expressed a desire to appeal and
that a notice of appeal should not be filed until that time.  On October 6,
2011, the trial court entered an order denying the motion to substitute
counsel, finding that Relator’s counsel had no duty to file a notice of appeal
until hearing from Relator that he desired to appeal, and ordering Relator’s
counsel not to file a notice of appeal unless Relator first communicated his
desire to appeal.  A petition for a writ of mandamus and a motion for temporary
relief were filed in this court the next day; we requested a response and
issued an order staying the portions of the trial court’s October 6 order concerning
the notice of appeal.  Relator’s counsel thereafter timely filed a notice of
appeal in the trial court on October 10, 2011.
III. 
Standard of Review
Mandamus
relief is proper only to correct a clear abuse of discretion when there is no
adequate remedy by appeal.  In re Columbia Med. Ctr. of Las Colinas, 290
S.W.3d 204, 207 (Tex. 2009) (orig. proceeding).  A trial court clearly abuses
its discretion when it reaches a decision so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law.  Walker v. Packer, 827
S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).  We give deference to a
trial court=s factual determinations, but we review
the trial court=s legal determinations de
novo.  In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009)
(orig. proceeding).  A trial court abuses its discretion if it incorrectly
interprets or improperly applies the law.  In re Dep’t of Family &
Protective Servs., 273 S.W.3d 637, 642B43
(Tex. 2009) (orig. proceeding); Walker, 827 S.W.2d at 840.
Absent
extraordinary circumstances, mandamus will not issue unless relator lacks an
adequate remedy by appeal.  In re Van Waters & Rogers, Inc.,145
S.W.3d 203, 210B11 (Tex. 2004) (citing Walker,
827 S.W.2d at 839).  Whether a clear abuse of discretion can be adequately
remedied by appeal depends on a careful analysis of costs and benefits of
interlocutory review.  In re McAllen Med. Ctr., Inc., 275 S.W.3d 458,
464 (Tex. 2008) (orig. proceeding).  As this balance depends heavily on
circumstances, it must be guided by analysis of principles rather than simple
rules that treat cases as categories.  Id.  An appeal is inadequate for
mandamus purposes when parties are in danger of permanently losing substantial
rights, such as when the appellate court would not be able to cure the error,
the party=s ability to present a viable claim or
defense is vitiated, or the error cannot be made part of the appellate record. 
Van Waters & Rogers, Inc., 145 S.W.3d at 210B11; Walker,
827 S.W.2d at 843B44.
IV. 
Discussion
          Relator
contends in his second issue that the trial court abused its discretion by
ordering his counsel not to file a notice of appeal unless Relator first
communicated to counsel his desire to appeal the judgment terminating his
parental rights.
          Government
code section 22.221(a) provides that a court of appeals “may issue a writ of
mandamus and all other writs necessary to enforce the jurisdiction of the
court.”  Tex. Gov’t Code Ann. § 22.221(a) (West 2004).  As set forth below, disputes
concerning notices of appeal are among the instances in which courts of appeals
invoke their writ power to protect their jurisdiction.
For
example, Rick Smith, an inmate, filed a negligence suit against the Texas
Department of Criminal Justice–Institutional Division, and the trial court
dismissed the lawsuit as frivolous.  See In re Smith, 263 S.W.3d 93, 94
(Tex. App.—Houston [1st Dist.] 2006, orig. proceeding).  Smith tendered a
request for findings of fact and conclusions of law, a motion to reinstate, an
amended petition, and a notice of appeal to the district clerk, but the clerk
returned the documents, unfiled, to Smith with a handwritten notation that the
case was closed and that the documents were not timely.  Id. at 94, 95. 
The court held that the clerk had a mandatory, ministerial duty to file the
documents and to forward the notice of appeal to the court of appeals without
regard to their timeliness.  Id. at 95–96 & n.3.
Relying
in part on the First Court of Appeals’s opinion and in part on government code
section 22.221(a), the Waco Court of Appeals addressed a similar situation in In
re Smith, 270 S.W.3d 783, 785, 787 (Tex. App.—Waco 2008, orig.
proceeding).  There, the trial court rendered an order declaring Clifford Smith
to be a vexatious litigant.  Id. at 784.  After Smith tendered a letter
expressing his desire to appeal the vexatious litigant order, the district
clerk responded by letter that the clerk’s office would not file any documents
for Smith because of the trial court’s vexatious litigant order.  Id. at
784–85.  The court of appeals held that the letter constituted a notice of
appeal and that the district clerk abused its discretion by refusing to file
the letter.  Id. at 786–87.  Importantly, however, the court also held
as follows:
Any
contention that Smith’s notice of appeal does not comply with the requirements
of the appellate rules is for this Court to determine once that document has
been filed by Respondent and forwarded to this Court in the customary manner
Respondent and other trial court clerks forward notices of appeal to this
Court.
Id. at
787 (citing Smith, 263 S.W.3d at 95, and In re Washington, 7
S.W.3d 181, 182 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding)). 
Similarly, the Dallas Court of Appeals granted a petition for writ of mandamus
directing the trial court to order the district clerk to file a notice of
appeal, effectively vacating the trial court’s previous order that the clerk
not file any further documents from a particular litigant.  In re Miller,
No. 05-98-01120-CV, 1998 WL 880959, at *1 (Tex. App.—Dallas Dec. 18, 1998,
orig. proceeding) (not designated for publication).
          In
the criminal case of Whitsitt v. Ramsay, the trial court ordered the
district clerk to “hold in abeyance any further preparation of the attempted
appeal by the defendant” because the trial court questioned whether the
defendant should have been permitted to appeal given a prior waiver of the
right to appeal.  See 719 S.W.2d 333, 334 (Tex. Crim. App. 1986) (orig.
proceeding).  Whitsitt contended by mandamus that “the trial court exceeded its
authority by interfering with the appellate process.”  Id.  The court of
criminal appeals agreed and ordered the trial court to vacate its order
instructing the clerk to “hold” the notice of appeal.  Id.
          Finally,
in the criminal case of In re Sistrunk, 142 S.W.3d 497, 499 (Tex.
App.—Houston [14th Dist.] 2004, orig. proceeding), Sistrunk pleaded guilty to
manslaughter, but the victim’s family members were unhappy with the
plea-bargained sentence and filed a notice of appeal.  The trial court ordered
the parties to brief the propriety of the family members’ attempted appeal, and
the district attorney sought mandamus relief and argued that the trial court
was acting without jurisdiction.  Id. at 500.  Granting mandamus relief,
the court wrote, “If there is a question concerning the right to appeal certain
matters, it is a matter within the jurisdiction of the court of appeals to
decide and not within the jurisdiction of the trial court to decide.”  Id.
at 500–01.  The court also stated that “whether or not a notice of appeal is
proper or effective” is a question for the court of appeals and that the trial
court had “no authority to determine whether the notice of appeal filed by the [family
members] is proper or effective because that determination lies within the
court of appeals’ jurisdiction.”  Id. at 501.
          Here,
the trial court ordered Relator’s counsel not to file a notice of appeal until
Relator communicated to counsel his desire to appeal.  In doing so, the trial
court agreed with, and took affirmative action to implement, the Department’s
argument that a notice of appeal should not be filed until Relator expressed a
desire to appeal.  But the question of whether Relator’s counsel has the
authority to file a notice of appeal is one for this court, not the trial
court.[1]  See Smith, 270
S.W.3d at 787; see also Whitsitt, 719 S.W.2d at 334; Sistrunk,
142 S.W.3d at 500–01.  Therefore, the trial court abused its discretion by
ordering Relator’s counsel not to file a notice of appeal.  And Relator has no
adequate remedy by appeal because Relator might permanently lose the right to
appeal the termination of his parental rights if the trial court’s order is not
vacated.  See Van Waters & Rogers, Inc.,
145 S.W.3d at 210B11; Walker, 827
S.W.2d at 843B44; In re Prof’l Pharmacy II, No.
02-10-00163-CV, 2010 WL 3718946, at *4 (Tex. App.—Fort Worth Sept. 23, 2010,
orig. proceeding) (mem. op.) (holding appellate remedy inadequate because party
would lose substantial right to a jury trial); see also Tex. Fam. Code
Ann. §
109.002(b) (West Supp. 2011) (granting parties the ability to appeal a parental
rights termination order).
          The
Department argues that Relator’s counsel, through this original proceeding, is
attempting “to implement a nonsensical application of the appellate process,
one that would make an appeal automatic.”  But our holding should not
be interpreted to in any way disturb the well-settled principle that the
decision to appeal belongs to the litigant, not to the lawyer.  See, e.g.,
Jones v. Banner Creamery, 214 S.W.2d 487, 488 (Tex. Civ. App.—Eastland
1948, no writ) (“An attorney does not have the right to appeal a case against
the wishes or instructions of his client.”).  It always has been and always
will be that the client must decide whether to appeal a judgment.  But to the
extent there is a factual dispute concerning the lawyer’s authority to file a
notice of appeal on a client’s behalf because the client may not have expressed
a desire to appeal, the dispute must be resolved by the court of appeals,
typically after an abatement, a limited remand to the trial court for an
evidentiary hearing, and the filing of supplemental findings of fact or
conclusions of law.  See generally In re M.E.-M.N., 342 S.W.3d 254,
258–59 (Tex. App.—Fort Worth 2011, pet. denied) (describing abatement and
remand procedure used in termination appeal after the appellant did not timely
file her appellant’s brief); Taylor v. Tex. Dep’t of Family & Protective
Servs., No. 03-09-00684-CV, 2010 WL 5129126, at *1 (Tex. App.—Austin Dec.
17, 2010, no pet.) (mem. op.) (dismissing appeal after evidentiary hearing and
determination that the appellant abandoned the appeal).  The trial court does
not, however, have the authority to interfere with our jurisdiction by prohibiting
a party from filing a notice of appeal.  See Smith, 270 S.W.3d at 787.  We
sustain Relator’s second issue.[2]
IV. 
Conclusion
          Having
held that the trial court abused its discretion, we conditionally grant the
petition for writ of mandamus and direct the trial court to vacate the portion
of its October 6, 2011 order prohibiting Relator’s counsel from filing a notice
of appeal.  The writ will issue only if the trial court fails to comply within
ten days.  Our October 7, 2011 temporary stay order will be automatically
lifted upon the trial court’s compliance with our order.
 
 
ANNE GARDNER
JUSTICE
 
PANEL: 
DAUPHINOT, GARDNER,
and MCCOY, JJ.
 
DELIVERED:  December 15,
2011




[1]We are aware that,
generally, a court of appeals may only enforce or protect its jurisdiction by
issuing a writ “after appellate jurisdiction has been invoked and thus becomes
active.”  In re Brown, No. 07-11-00397-CV, 2011 WL 5105457, at *1 (Tex.
App.—Amarillo Oct. 27, 2011, orig. proceeding) (citing Winfrey v. Chandler,
159 Tex. 220, 318 S.W.2d 59, 61 (1968), and Bush v. Vela, 535 S.W.2d
803, 804 (Tex. Civ. App.—Corpus Christi 1976, orig. proceeding)).  This case is
different, though, because the trial court entered an order prohibiting
Relator’s counsel from invoking our appellate jurisdiction.


[2]In light of our
disposition of Relator’s second issue, we need not address and express no
opinion concerning his first issue:  whether the trial court abused its
discretion by finding that his counsel had no duty to file a notice of appeal
until Relator communicated to counsel his desire to appeal.  See Tex. R.
App. P. 47.1.  We also do not reach the question of the trial court’s refusal
to substitute appellate counsel for Relator because Relator has not assigned
that question as an issue in this original proceeding, nor has he briefed
whether he established good cause for the substitution.  See Tex. Fam.
Code Ann. § 107.016 (West Supp. 2011) (listing conditions upon which appointed
counsel in termination case may withdraw or be replaced upon finding of good
cause); Tex. R. Civ. P. 10 (requiring showing of good cause for withdrawal of
counsel).  We do note, however, the trial court’s apparent agreement on the
record at the hearing to substitute appellate counsel in the event of an
appeal. 


