in the Matter of J. J. H. ( 2017 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER OF ABATEMENT
Appellate case name: In the matter of J. J. H.
Appellate case number: 01-17-00188-CV
Trial court case number: 12-CJV-017462
Trial court: County Court at Law No 4 of Fort Bend County
Appellant, J.J.H., a juvenile, had been previously adjudicated of delinquent
conduct for offenses which could require sex offender registration — two counts of
indecency with a child by exposure under Texas Family Code Ann. § 54.04 — and the
county court at law, sitting as a juvenile court, had entered an agreed order deferring sex
offender registration on December 10, 2012. On March 6, 2017, the county court at law
signed a sex offender registration order after deferral order requiring appellant to register
as a sex offender for ten years under Texas Code of Criminal Procedure Article 62.351 et
seq. Appellant’s pro bono counsel, Jennifer Gaut, timely filed a notice of appeal on
March 6, 2017.
J.J.H.’s appellate brief was originally due on May 11, 2017. On May 12, 2017,
appellant’s pro bono counsel, Jennifer Gaut, filed a motion requesting a 60-day extension
of time to file appellant’s brief to July 11, 2017. The Clerk of this Court granted the
motion extending the deadline to file appellant’s brief to July 11, 2017, but warned
counsel that no further extensions would be granted absent extraordinary circumstances.
On July 11, 2017, appellant’s counsel filed a second and final extension request
requesting an additional twenty days to file appellant’s brief until July 31, 2017. The
Clerk of this Court granted the motion extending the deadline to file appellant’s brief to
July 31, 2017, but warned counsel that no further extensions would be granted.
Because appellant’s brief was not timely filed by July 31, 2017, the Clerk of this
Court sent appellant a late-brief notice on August 10, 2017, notifying counsel that the
time for filing appellant’s brief had expired. The Clerk’s notice further warned counsel
that, unless the brief was filed within ten days of that notice, this appeal may be
dismissed for want of prosecution. Counsel again failed to respond and, to date, no brief
has been filed on behalf of appellant. Although juvenile delinquencies are civil appeals,
according to the clerk’s record, the trial court had granted appellant’s appointed trial
counsel’s motion to withdraw, and granted pro bono appellate counsel’s motion for a free
appellate record because appellant was indigent, all on March 6, 2017. Also, because the
sex offender registration order arises under Code of Criminal Procedure Article 62.351 et
seq., the Court construes this as a criminal appeal for late-brief abatement purposes. See
TEX. R. APP. P. 2, 38.8(b)(2).
Accordingly, the Court sua sponte abates the appeal and remands the case to the
trial court for further proceedings. The trial court shall immediately conduct a hearing at
which a representative of the Fort Bend County District Attorney’s Office and appellant’s
counsel, Jennifer Gaut, shall be present. Appellant shall also be present for the hearing in
person or, if appellant is incarcerated, at the trial court’s discretion, appellant may
participate in the hearing by closed-circuit video teleconferencing.1
This Court directs the trial court to:
(1) determine whether appellant wishes to prosecute the appeal;
(2) if appellant wishes to prosecute the appeal, determine whether appellant is still
indigent;
(3) if appellant is indigent, determine whether good cause exists to relieve
Jennifer Gaut of her duties as appellant’s counsel;
a. if good cause exists to remove counsel, enter a written order relieving
Jennifer Gaut of her duties as appellant’s counsel, and appoint substitute
appellate counsel at no expense to appellant;
b. if good cause does not exist to remove counsel, provide a final deadline
by which Jennifer Gaut must file an appellant’s brief in this Court,
which shall be no more than 20 days from the date of the hearing;
(4) if appellant is not indigent and Jennifer Gaut does not intend to represent
appellant on appeal,
a. determine whether appellant has retained an attorney to represent
appellant on appeal, and, if so, obtain the name, address, and
telephone number of retained counsel;
b. if appellant has not retained counsel, admonish appellant of the
dangers and disadvantages of self-representation, and
i. determine whether appellant has knowingly and intelligently
1
Any such teleconference must use a closed-circuit video teleconferencing system that
provides for a simultaneous compressed full motion video and interactive communication
of image and sound between the trial court, appellant, and any attorneys representing the
State or appellant. On request of appellant, appellant and appellant’s counsel shall be
able to communicate privately without being recorded or heard by the trial court or the
attorney representing the State.
waived appellant’s right to counsel; and
ii. determine whether any decision by appellant to proceed pro se is
in the best interest of appellant, the State, and the administration
of justice;
iii. if appellant does not wish to proceed pro se, provide a deadline
by which appellant must hire an attorney;
(5) make any other findings and recommendations the trial court deems
appropriate; and
(6) enter written findings of fact, conclusions of law, and recommendations as to
these issues, separate and apart from any docket sheet notations.
See TEX. CODE CRIM. PROC. ANN. art. 1.051(a), (c), (d)(1), (f), 26.04 (West 2016); TEX.
R. APP. P. 38.6(a); cf. TEX. CODE CRIM. PROC. ANN. art. 1.051(g).
The trial court shall have a court reporter, or court recorder, record the hearing.
Any hearing shall be conducted within 20 days of the date of this Order. The trial court
clerk is directed to file a supplemental clerk’s record including the trial court’s findings,
recommendations, and orders with this Court no later than 30 days from the date of this
order. The court reporter is directed to file the supplemental reporter’s record of the
hearing, if any, no later than 30 days from the date of this order. If the hearing is
conducted by video teleconference, an electronic copy of the hearing shall be filed in this
Court no later than 30 days from the date of this order.
The appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket when the
supplemental clerk’s record and, if any, a supplemental reporter’s record, complying with
this Order is filed with this Court.
It is so ORDERED.
Judge’s signature: /s/ Laura C. Higley
Acting individually
Date: November 16, 2017