in the Matter of D. L. C. ( 2005 )

NO. 07-05-0337-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

NOVEMBER 8, 2005

______________________________

IN THE MATTER OF D.L.C. _________________________________

FROM THE COUNTY COURT OF SWISHER COUNTY;

NO. 387; HONORABLE HAROLD KEETER, JUDGE _______________________________

Before QUINN, C.J., and REAVIS and HANCOCK, JJ.

ON ABATEMENT AND REMAND

Appellant D.L.C., a juvenile, appeals the trial court's Order of Adjudication and Disposition (TYC Committment) which found that D.L.C. had engaged in delinquent conduct and placed him with the Texas Youth Commission for an indeterminate sentence not to exceed his 21^st birthday. D.L.C. timely filed a notice of appeal on September 23, 2005. By letter, dated September 26, this court notified D.L.C. that the $125 filing fee had not been paid. In response, on October 10, D.L.C. filed with this court Appellant's Motion for Extension of Time to File Appeal Fee and an Affidavit of Inability to Pay Costs.

Section 56.01(b) of the Texas Family Code provides that the requirements governing a juvenile appeal are as in civil cases generally. Tex. Fam. Code Ann. § 56.01(b) (Vernon 2002). Texas Rule of Appellate Procedure 20.1(c)(1) and (3) ⁽¹⁾ requires that an affidavit of indigence be filed in the trial court with or before the notice of appeal, but allows the appellate court to extend the deadline if, within 15 days of the filing of the notice of appeal, the appellant files a motion to extend time that complies with Rule 10.5(b). Were this a regular appeal, we would be compelled to find that, because appellant had failed to comply with Rule 20.1(c)(1) and (3), he was not entitled to proceed on appeal without advance payment of costs. See Holt v. F.F. Enters., 990 S.W.2d 756, 759 (Tex.App.-Amarillo 1998, pet. denied). However, the Texas Supreme Court has held that Rule 20.1 does not apply to appeals under the Juvenile Justice Code. See In the Matter of K.C.A., 36 S.W.3d 501, 502 (Tex. 2000). Rather, the provisions of the Texas Family Code apply and a finding of indigence can be predicated on either a hearing or an affidavit by the child's parent. Id. at 503. The appropriate forum for such a determination is the trial court. In the Matter of L.P., 51 S.W.3d 855, 855 (Tex.App.-Houston [1^st Dist.] 2001, no pet.) (citing In the Matter of K.C.A., 36 S.W.3d at 503).

Therefore, we abate the appeal and remand the matter to the trial court. Upon remand, the judge of the court shall immediately cause notice to be given of and conduct a hearing to determine whether the juvenile is indigent.

In support of its determination, the trial court shall prepare and file written findings of fact and conclusions of law and cause them to be included in a supplemental clerk's record. The hearing proceedings shall be transcribed and included in a supplemental reporter's record. These supplemental records shall be submitted to the clerk of this court no later than December 5, 2005.

Per Curiam

1. Further reference to Texas Rules of Appellate Procedure will be by reference to "Rule __."

appealable." (Emphasis added). Given the trial court's use of each word or phrase italicized, we cannot but hold that the trial court intended to render an appealable judgment and actually disposed of all claims and parties. Thus, the "Final Summary Judgment" indeed was final.

Issue Two - Render an Agreed Summary Judgment

Next, the Clients allege that a summary judgment cannot be rendered by agreement if the terms of Rule 11 are unsatisfied. And, because those terms were not met at bar, the trial court erred in purporting to render the judgment upon the agreement of the parties. We sustain the issue.

Rule 11 of the Texas Rules of Civil Procedure states that "[u]nless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record." Tex. R. Civ. P. 11. Moreover, until all the terms of a judgment have been definitely agreed upon by all the parties and those terms are either reduced to writing, signed, and made a part of the record or made in open court and entered of record, the trial court is not authorized to render a judgment by agreement. Matthews v. Looney, 132 Tex. 313, 123 S.W.2d 871, 873 (1939); McIntyre v. McFarland, 529 S.W.2d 857, 859 (Tex. Civ. App.-Tyler 1975, no writ). The purpose of these rules is to remove from "the fallibility of human recollection" agreements of counsel which affect the interests of their clients. Matthews v. Looney, 123 S.W.2d at 873, quoting, Wyss v. Bookman, 235 S.W. 567 (Tex. Comm'n App. 1921) (judgm't adopted). And, that purpose is no less applicable here.

The record before us illustrates that the trial court granted the Attorneys' motion for summary judgment not due to its merit but because counsel for the Clients allegedly agreed, at the hearing on said motion, that summary judgment was proper. ⁽³⁾ Furthermore, the agreement was neither written nor entered of record. Instead, the trial court was left to reconstruct it based upon his memory. So, given the absence of any written record of the accord and its propensity to touch the suit, the trial court lacked authority to act upon it. And, because that unrecorded agreement formed the basis of its decision to grant summary judgment, entry of the judgment was impermissible under Rule 11, Matthews, and McIntyre.

Our disposition of issue two relieves us from having to consider the remaining issues raised by the Clients. Accordingly, we reverse the final summary judgment and remand the cause to the trial court.

Brian Quinn

Chief Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2006).

2.

We note that in referring to the claims being denied, the decree simply stated "plaintiff" in the singular. However, we view this as a typographical error given the trial court's reference to "plaintiffs" plural when ordering that they "take nothing" and in levying court costs. It, no doubt, intended to use the plural "plaintiffs" throughout the judgment.

3.

During the hearing, the trial judge candidly admitted that he did not peruse the summary judgment motion in depth. Rather, he relied upon the alleged agreement between counsel to enter summary judgment.