                                    NO. 07-04-0261-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                  AUGUST 23, 2004
                           ______________________________

        IN THE INTEREST OF S.D.S., G.R.R., J.R.R. AND E.M.R., CHILDREN

                         _________________________________

              FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;

                NO. 32,803; HON. PHIL N. VANDERPOOL, PRESIDING
                        _______________________________

                             ABATEMENT AND REMAND
                        __________________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

       This case is an appeal of a final order terminating the parent-child relationship. The

clerk’s record was filed on June 2, 2004, and the reporter’s record was filed on June 22,

2004. Thus, appellants’ briefs were due on July 12, 2004, since this is an accelerated

case. However, no brief or extension of time to file appellants’ briefs was filed on that date.

So, this Court notified counsel for appellants, by letter on August 16, 2004, that neither the

brief nor an extension of time to file same had been filed. We also admonished counsel

for appellants that if they did not respond to the court’s letter by August 26, 2004, the

appeal would be subject to dismissal. On August 18, 2004, counsel for appellant Filemon

Sanchez notified this court that under Texas Family Code section 263.405(g), the filing of

an appellant’s brief is “discretionary and is not required unless the court of appeals
determines that the brief would be of assistance in resolving the matters presented on

appeal.” Attorneys for appellants Johnny Sanchez and Cassandra Ramirez have not

responded to the August 16, 2004 letter.

       Accordingly, we abate this appeal and remand the cause to the 223rd District Court

of Gray County (trial court). Upon remand, the trial court shall immediately cause notice

of a hearing to be given and, thereafter, conduct a hearing to determine the following:

       1.     whether appellants desire to prosecute the appeal;

       2.     whether appellants are indigent and entitled to appointed counsel; and,

       3.     whether appellants have been denied the effective assistance of
              counsel due to appellate counsel’s failure to timely file an appellate
              brief. See Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 834-35,
              83 L.Ed.2d 821, 828 (1985) (holding that an indigent defendant is
              entitled to the effective assistance of counsel on the first appeal as of
              right and that counsel must be available to assist in preparing and
              submitting an appellate brief).

       Should the trial court find that appellants desire to pursue this appeal, are indigent,

and have been denied effective assistance of counsel, then we further direct it to appoint

new counsel to assist them in the prosecution of the appeal. We further direct the trial

court to issue findings of fact and conclusions of law addressing the foregoing subjects.

The name, address, phone number, telefax number, and state bar number of the new

counsel who will represent appellants on appeal must also be included in the trial court’s

findings of fact and conclusions of law. Furthermore, the trial court shall also cause to be

developed 1) a supplemental clerk’s record containing the findings of fact and conclusions

of law and 2) a reporter’s record transcribing the evidence and argument presented at the

aforementioned hearing. Additionally, the trial court shall cause the supplemental clerk’s

record to be filed with the clerk of this court on or before September 22, 2004. Should

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additional time be needed to perform these tasks, the trial court may request same on or

before September 22, 2004.

      It is so ordered.

                                               Per Curiam




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