in Re Commitment of Richard Garcia ( 2013 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-13-00235-CV
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IN RE COMMITMENT OF RICHARD GARCIA
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On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 12-10-10400 CV
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ORDER
On May 15, 2013, Richard Garcia’s retained counsel, Scott Pawgan, filed a
notice of appeal on behalf of the appellant. The appellant failed to make payment
arrangements for the reporter’s record. On August 29, 2013, we notified the
parties that appeal would be submitted on the clerk’s record alone. We issued a
late brief notice on November 7, 2013. On November 27, 2013, appellate counsel
filed a motion to withdraw. Some of the required information has been omitted
from the motion. See Tex. R. App. P. 6.5 (a)(2)-(4), (b); see also Tex. R. App. P.
10.1 (a)(5). On November 27, 2013, counsel filed a motion to abate the appeal for
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a determination of the appellant’s indigence. No affidavit of indigence has been
filed. See Tex. R. App. P. 20.1 (a)(2). Garcia has a statutory right to counsel. See
Tex. Health & Safety Code Ann. § 841.144 (West 2010).
It is, therefore, ORDERED that the appeal is abated and the case is
remanded to the trial court for a hearing at which a representative of the State,
counsel for the appellant, and the appellant shall be present in person. The trial
court shall determine why counsel for the appellant failed to obtain and file an
affidavit of indigence from his client and why counsel failed to communicate with
the Court of Appeals before the deadlines for filing the record and the appellant’s
brief expired. The trial court shall determine whether counsel should be permitted
to withdraw. If the trial court permits counsel to withdraw, the trial court shall
determine whether the appellant is indigent. See Tex. R. App. P. 20.1(b). If the
appellant is indigent, the trial court shall appoint counsel and order that the
reporter’s record be prepared without prepayment from the appellant personally.
See Tex. Health & Safety Code Ann. §§ 841.005, 841.146(c) (West 2010).
The record of the hearing, including any orders and findings of the trial
court, shall be filed with the Court of Appeals on or before January 6, 2014.
ORDER ENTERED December 5, 2013.
PER CURIAM
Before McKeithen, C.J., Kreger and Horton, JJ.
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