By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2003 Case Summaries 2002 Case Summaries 2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
When mother signed notice of appeal she may seek dismissal of the appeal [In re R.R.J.] (04-1-06).
On December 10, 2003, the Dallas Court of Appeal dismissed an appeal on request of the respondent's mother when the mother had signed the original notice of appeal.
04-1-06. In the Matter of R.R.J., UNPUBLISHED, No. 05-03-00676-CV, 2003 WL 22903117, 2003 Tex.App.Lexis ___ (Tex.App.-Dallas 12/10/03) Texas Juvenile Law (5th Ed. 2000).
Facts: This is an appeal of a dispositional hearing order regarding a delinquent child. In this case, the mother of the appellant signed the notice of appeal filed on May 5, 2003. Thereafter, the Court received a June 3, 2003 letter from appellant's mother asking the Court to dismiss the appeal. In a letter dated June 4, 2003, the Court informed appellant's mother that her June 3, 2003 letter requesting dismissal did not meet the requirements of the rules of appellate procedure.
On July 15, 2003, the clerk's record was filed in this appeal. The record shows that appellant was represented by attorney Jeff L. Pierce. Such record does not contain any order allowing counsel Pierce to withdraw from this case. Section 56.01(f) of the family code states, "If the child and his parent, guardian, or guardian ad litem express a desire to appeal, the attorney who represented the child before the juvenile court shall file a notice of appeal with the juvenile court and inform the court whether that attorney will handle the appeal." In a letter dated July 28, 2003, the Court instructed counsel Pierce to file an amended notice of appeal on behalf of appellant, within ten days of the date of the letter, if the appellant wants to pursue the appeal. Alternatively, the letter instructed counsel to file a "motion to dismiss this appeal bearing the signature of appellant, his parent or guardian, and counsel's signature within ten (10) days of the date of the letter," if appellant and his parent or guardian do not wish to pursue the appeal.
Counsel has not responded to the Court's July 28, 2003 letter. Additionally, the brief was due to be filed in this appeal on August 14, 2003 and has not been filed.
By order dated August 21, 2003, we directed the trial court to conduct a hearing to determine whether or not appellant and his parent or guardian desire to pursue this appeal, and if there is a desire to pursue an appeal, why an amended notice of appeal and a brief have not been filed in this appeal, and we abated this appeal.
Held: Appeal dismissed.
Opinion Text: We REINSTATE this appeal. On November 24, 2003, the trial court filed the following findings with this Court:
On the 6th day of November, 2003, the Court
conducted an inquiry pursuant to the order of the Fifth Court of Appeals. The
child's mother was present. The court makes the following findings:
1. Child's right to appeal has not been waived in accordance with section 51.09
of the Family Code.
2. Child is not prohibited from appealing the trial court's order because of
section 56.01(n) of the Family Code.
3. Child's mother does not desire to proceed with the appeal.
4. Inasmuch as the parents do not intend to appeal, this Court recommends the
appeal be dismissed.
There is no indication in the record that appellant desires to appeal his dispositional hearing order. Appellant's brief was due to be filed on August 14, 2003 and has not been filed. The trial court has determined that appellant's mother, who filed the notice of appeal, does not desire to pursue this appeal. Accordingly, on the Court's own motion, we DISMISS this appeal for want of prosecution. See Tex.R.App. P. 42.3(b).
[Editor's Comment: In this case the mother, not the child, was permitted to seek dismissal of the appeal because the mother signed the notice of appeal. Section 56.01(c)(1) provides that an appeal may be taken "by or on behalf of a child…." Had counsel filed notice of appeal on behalf of the child, or by the child pro se, then only the child and counsel under Section 51.09 could have waived prosecution of the appeal.]
2003 Case Summaries 2002 Case Summaries 2001 Case Summaries 2000 Case Summaries 1999 Case Summaries