Ex Parte N.C. ( 2017 )

IN THE
TENTH COURT OF APPEALS
No. 10-14-00102-CV
EX PARTE N.C.
From the 12th District Court
Walker County, Texas
Trial Court No. 26744
ORDER
On October 25, 2017 we dismissed N.C.’s appeal of the denial of an expunction
order because there was no final appealable order to appeal. Ex parte N.C., No. 10-14-
00102-CV, 2017 Tex. App. LEXIS 9998 (Tex. App.—Waco Oct. 25, 2017, no pet. h.) (mem.
op.). Based on the history of the proceeding, on remand from the Texas Supreme Court,
the trial court had appointed N.C. an attorney. The appointed attorney filed a motion to
withdraw and an Anders-type brief in support of the motion. Anders v. California, 386 U.S.
738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Anders is applicable in criminal cases when
counsel is appointed to represent indigent persons. Id. It has been utilized in some civil
proceedings when indigent persons are represented by appointed counsel. See e.g., In re
E.L.Y., 69 S.W.3d 838, 841 (Tex. App.—Waco 2002, order) (applying Anders to termination
appeal). In the motion and brief in support of the motion to withdraw, the appointed
attorney had otherwise complied with the Anders requirements; but we had to dismiss
the appeal because there was no final appealable order. Thus, because we dismissed the
appeal for lack of jurisdiction, rather than affirming the judgment for lack of a meritorious
issue to appeal, we did not grant the appointed attorney’s motion to withdraw. N.C. has
now filed a pro se motion for extension of time to file a motion for rehearing. The initial
question we face is whether we should allow N.C. to file a motion given that we did not
grant his appointed counsel’s motion to withdraw.
We believe that in the unusual circumstances of this appeal, it is appropriate for
the Court to allow N.C. to file his own motion for rehearing, and thus appropriate for
N.C. to file a motion for extension of time to file his motion for rehearing. N.C.’s motion
for a 45 day extension of time to file a motion for rehearing is granted. N.C.’s motion for
rehearing is due on December 27, 2017.
We warn N.C. that failure to timely file a motion for rehearing after being granted
an extension to file it may create the situation where a subsequent petition for review
cannot be timely filed because the timeliness of the petition for review is determined by
a date after which the opinion is issued or the last timely filed motion for rehearing is
denied. TEX. R. APP. P. 53.7.
PER CURIAM
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Motion granted
Order issued and filed November 15, 2017
Ex parte N.C. Page 2