in the Interest of KRH-B, a Child ( 2021 )

IN THE
TENTH COURT OF APPEALS
No. 10-20-00269-CV
IN THE INTEREST OF KRH-B, A CHILD
From the 220th District Court
Hamilton County, Texas
Trial Court No. FM06819
ABATEMENT ORDER
We are now at the point in this appeal for briefing on the merits. It has been a
challenge to bring it this far when appellant is in prison and does not have an attorney.
The challenge began with misinterpreting appellant’s attempt to appeal a custody order
for a rehearing in a prior mandamus proceeding by appellant. It moved into difficulties
securing a “reporter’s record” because the trial court recorded the proceeding
electronically rather than using a court reporter to stenographically record the
proceeding. Once we obtained this record in a manner which complied with the Rules
of Appellate procedure, we ordered appellant to request a copy of the appellate record if
he needed it and a briefing schedule would be set. We noted that if appellant did not
request the record, the brief was due in 30 days. Approximately two weeks after this
order was issued, appellant notified the Court that his prison address had changed and,
because he had been in a transient state for two and a half months, requested that we
send him any legal documents this Court had sent him in the last three months. This was
the second time appellant had been moved within the prison system within the last three
months.
Early in the process of shepherding this case to the point of briefing on the merits,
appellant requested that we appoint counsel for him. We declined his request because
appellate courts have no jurisdiction to appoint counsel. However, we noted that once
we obtained the appellate record, we might “sua sponte, or on appellant’s motion, abate
the appeal for the trial court to consider whether appointment of counsel is appropriate.”
Recognizing this Court’s difficulty in communicating with appellant and to keep this
appeal proceeding forward, we have reviewed the record, and we believe it is time to
implement the abatement procedure we previously contemplated.
The legislature has authorized courts to “…appoint counsel to attend to the cause
of a party who makes an affidavit that he is too poor to employ counsel to attend to the
cause.” TEX. GOV’T CODE § 24.016. And specifically, in family law cases, the legislature
has given courts discretion to appoint counsel for indigent parents in private termination
or custody suits. TEX. FAM. CODE § 107.021.
Accordingly, given the unique difficulties in this particular case, we ABATE this
appeal to the trial court to determine whether to appoint counsel to represent appellant
in this appeal. So that the trial court will have sufficient time to bench warrant the
appellant to the proceeding, if the trial court determines that is necessary, this proceeding
In the Interest of KRH-B Page 2
is abated for 28 days. If additional time is needed to consider the motion for the
appointment of counsel previously filed as well as supplemental information filed related
to the motion, if any, the trial court should notify this Court and the abatement period
will be extended.
PER CURIAM
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Order issued and filed December 1, 2021
[RWR]
In the Interest of KRH-B Page 3