                                  MEMORANDUM OPINION
                                          No. 04-09-00757-CV

                   IN THE INTEREST OF D.S., A.G., and M.M., Minor Children

                      From the 198th Judicial District Court, Kerr County, Texas
                                      Trial Court No. 08-539-B
                             Honorable Charles Sherrill, Judge Presiding

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Karen Angelini, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: August 31, 2010

           Ottis Sutton appeals the trial court’s order finding that his appeal of the order terminating

his parental rights to his daughter, D.S., would be frivolous. 1 See TEX. FAM. CODE ANN.

§ 263.405(g) (Vernon 2008). Following a jury trial, the trial court terminated the parent-child

relationship between Sutton and D.S. Sutton timely filed a motion for new trial and statement of

appellate points containing twenty-seven issues for appeal, along with an affidavit of indigence.

See id. § 263.405(b), (e) (Vernon 2008). Following a hearing on the motion, the trial court

denied the motion for new trial, sustained Sutton’s affidavit of indigence, and ruled that the

appeal was frivolous. See id. § 263.405(d) (Vernon 2008). Because the trial court found the

1
  Mina Flanagan also appeals from the same termination proceeding; however, she does not dispute the frivolous
finding and raises only one issue related to the assessment of attorney’s fees. Flanagan’s complaint will be
addressed along with Sutton’s once the full reporter’s record has been filed.
                                                                                      04-09-00757-CV


appeal frivolous, Sutton was not entitled to a free copy of the record from the termination trial.

After reviewing the record currently before us, we are unable to determine whether the trial court

abused its discretion in finding the appeal frivolous. Accordingly, a review of the reporter’s

record from the underlying termination proceeding is necessary to determine whether the trial

court abused its discretion. In re T.C., 299 S.W.3d 828, 828 (Tex. App.—San Antonio 2009, no

pet.).

         Accordingly, it is ordered that the court reporter shall, on or before thirty (30) days from

the date of this opinion and order, and without cost to Sutton, prepare and file the reporter’s

record containing all of the evidence admitted at the termination trial. See TEX. R. APP. P.

34.6(d).



                                                   Phylis J. Speedlin, Justice




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