Interest of B v. a Child ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
July 23, 2019
No. 04-18-00857-CV
INTEREST OF B.V., A CHILD,
Appellant
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 2016-PA-00239
Honorable Karen H. Pozza, Judge Presiding
ORDER
Sitting: Sandee Bryan Marion, Chief Justice
Irene Rios, Justice
Liza A. Rodriguez, Justice
By order dated March 5, 2019, we abated this appeal to the trial court to consider its
discretionary authority to grant appellant’s request for appointed counsel. See In re K.B.B., No.
12-16-00248-CV, 2017 WL 787094, at *3 (Tex. App.—Tyler Mar. 1, 2017, pet. denied) (noting
Texas Family Code “appear[s] to permit, in a private termination suit, permissive appointment of
an attorney ad litem for a parent”); In re B.C.T., No. 11-12-00359-CV, 2013 WL 1932914, at *1
(Tex. App.—Eastland May 9, 2013, pet. denied) (“Although a trial court may appoint an attorney
ad litem to represent an indigent parent in a termination proceeding that is brought by a party
other than a governmental entity, no statutory mandate exists when the suit is brought by a
private party rather than a governmental entity.”); In re D.L.S., No. 02-10-00366-CV, 2011 WL
2989830, at *2 (Tex. App.—Fort Worth July 21, 2011, no pet.) (“Texas Family Code section
107.021(a) provides only for discretionary appointments in private termination suits.”); In re
G.J.P., 314 S.W.3d 217, 222 n.3 (Tex. App.—Texarkana 2010, pet. denied) (“Under present
statutory authority, such an appointment is discretionary under Section 107.021 of the Texas
Family Code.”); In re J.C., 250 S.W.3d at 489 (noting appellate court abated the cause to the trial
court to consider the availability, if any, of discretionary appointment of counsel); see also
Lassiter v. Dep’t of Social Services, 452 U.S. 18, 32 (1981) (leaving the decision whether due
process requires appointment of counsel for indigent parents in termination proceedings to be
decided by the trial court and subject to appellate review). On March 7, 2019, the trial court
signed an order appointing counsel to represent appellant “on the appeal of this case.”
On July 17, 2019, this court issued its opinion and judgment. Appellant’s appointed
attorney has now filed an expedited motion for clarification of the order appointing him. The
motion notes the right to appointed counsel extends to proceedings in the Texas Supreme Court.
In re P.M., 520 S.W.3d 24, 27 (Tex. 2016). However, counsel is unclear whether his
appointment extends to the filing of a motion for rehearing in this court and a petition for review
in the Texas Supreme Court. It is therefore ORDERED that this appeal is ABATED to the trial
court to clarify its order regarding whether its appointment extends to the filing of a motion for
rehearing in this court and a petition for review in the Texas Supreme Court. It is FURTHER
ORDERED that the trial court cause a supplemental clerk’s record containing its clarification
order to be filed in this court no later than ten days from the date of this order. On its own
motion, this court extends the deadline for filing a motion for rehearing in this appeal to fifteen
days after this court reinstates this appeal on our docket.
_________________________________
Sandee Bryan Marion, Chief Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 23rd day of July, 2019.
___________________________________
Keith E. Hottle,
Clerk of Court