                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-16-00329-CV

                    IN THE MATTER OF A.J., A JUVENILE,


                          From the 272nd District Court
                              Brazos County, Texas
                             Trial Court No. 418-J-15


                                       ORDER

      By late December of 2016, the docketing statement in this appeal had not been filed

with this Court, the appellate filing fees had not been paid, and the reporter’s record had

not been requested. In early December, by letters dated December 5 and December 6,

2016, the Clerk of this Court had warned appellant’s counsel that 1) the appeal would

proceed on the clerk’s record alone if a reporter’s record was not requested within 21

days from the date of the letter; and 2) the appeal would be abated to the trial court to

determine whether appellant was receiving effective assistance of counsel if the

docketing statement was not filed and the fees were not paid or an affidavit of indigence

containing the information required to be considered by subsection (m) of section 56.01

of the Texas Family Code was not filed within 14 days from the date of the letter.
        The deadline established by the Court in both letters passed without notice from

appellant’s counsel whether the reporter’s record had been requested, without the

docketing statement being filed with this Court, and without the appellate fees being paid

or an affidavit of indigence being filed with this Court. No explanation or excuse was

offered to the Court by appellant’s counsel for these inactions. No communication,

whatsoever, came from appellant’s counsel. We had no choice but to abate this appeal to

the trial court to determine why counsel had not responded to the Clerk’s letters and had

not taken the actions requested.

DOCKETING STATEMENT AND RECORD

        The trial court conducted an abatement hearing and found that:

        A copy of the file stamped Docketing Statement was presented during the
        hearing, and it shows that it was filed with the Brazos County District
        Clerk’s Office on December 5, 2016….[Counsel] filed his request to have the
        court reporter transcribe the reporter’s record on January 5, 2017.

        When counsel does not communicate with the Court, we have no reason to know

that he has filed any documents. We are unable to review what may have been filed

somewhere other than with this Court. We certainly do not expect counsel to file

documents we request to be filed here with a different court. And when the Rules of

Appellate Procedure provide that a docketing statement must be “file[d] in the appellate

court,” TEX. R. APP. P. 32.1, it would make no sense for this Court to expect the docketing

statement to be filed in the trial court. Counsel has regularly practiced before this Court

and should know this rule. Further, in the Clerk’s letter dated December 5, 2016, the

Clerk asked counsel to request the record “and simultaneously notify us of that


In the Matter of A.J., a Juvenile                                                     Page 2
request….” Counsel has yet to file with this Court a docketing statement or a notification

that he requested the reporter’s record as requested by this Court.

FEES AND INABILITY TO PAY COSTS

        Further, we have no resolution as to whether appellate fees would be paid or an

affidavit of inability to pay costs containing the information required to be considered by

subsection (m) of section 56.01 of the Texas Family Code would be filed. The trial court

found that

        During the hearing, [counsel] stated that appellant’s mother was reluctant
        to sign an affidavit of indigence, and it caused him to miss the deadlines.

        During the abatement hearing, counsel additionally asked the trial court to grant

some sort of request for the mother to be held indigent based on a previous indigence

finding by the juvenile referee. (“I’ve asked the Court to just grant that based on the

previous indigency finding by the Juvenile Referree (sic).”). Supp. R.R. p. 7. Reviewing

the record we have, a juvenile referee did not find appellant’s mother to be indigent as to

the payment of costs, only that she was “financially unable to employ an attorney to

represent the child.” C.R. p. 44. Nevertheless, the trial court “signed that order.” Supp.

R.R. p. 7.

        We do not have a copy of the trial court’s order or the document presented to the

trial court by counsel at the hearing.

REFEREE

        As a result of the foregoing, it has come to our attention that a referee heard the

State’s motion to modify the original disposition order pertaining to this juvenile. The


In the Matter of A.J., a Juvenile                                                     Page 3
referee signed the Order Modifying Disposition and it is from this order that the appellant

appeals. According to the Family Code, after a hearing conducted by a referee, the referee

transmits written findings and recommendation to the juvenile court judge and the

juvenile court judge “shall adopt, modify, or reject the referee’s recommendations not

later than the next working day after the day that the judge receives the

recommendations.” TEX. FAM. CODE ANN. § 54.10(d) (West xxxx). The failure of the

juvenile court judge to act within the statute’s timeframe “results in release of the child

by operation of law….” Id. The order adopting the referee’s recommendation in the

clerk’s record in this appeal is not signed. Thus, it appears the trial court did not adopt

the referee’s order modifying the appellant’s disposition. Accordingly, because of this

failure, it appears the child may have been released, and this appeal may be moot.

ORDERS

        This appeal is reinstated.

        Appellant ‘s counsel is ORDERED to file a docketing statement with this Court,

as is required by the Rules of Appellate Procedure, within 7 days from the date of this

order. Appellant’s counsel is ORDERED to file a copy of counsel’s request for the

reporter to file the reporter’s record within 7 days from the date of this order. If either of

these items are not filed within the specified time period, this appeal will be abated to the

trial court to initiate contempt proceedings against appellant’s counsel.

        The trial court clerk is ORDERED to file a supplemental clerk’s record containing

the order and request referenced in the supplemental reporter’s record of the abatement

hearing held on January 5, 2017, page 7, within 7 days from the date of this order.

In the Matter of A.J., a Juvenile                                                       Page 4
Depending on what was requested and what was ordered, further orders from this Court

regarding appellant’s inability to pay costs may be forthcoming.

        The parties are ORDERED to file a response within 14 days from the date of this

order as to whether this appeal is moot due to the juvenile court judge having not adopted

the referee’s Order Modifying Disposition signed on August 29, 2016.


                                           PER CURIAM

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Appeal reinstated
Order issued and filed February 15, 2017




In the Matter of A.J., a Juvenile                                                   Page 5
