Samuel Rickie Hernandez, Jr. and Various Jewelry v. State of Texas

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER ON MOTION
Appellate case name: Samuel Ricki Hernandez, Jr. v. The State of Texas
Appellate case number: 01-16-00105-CV
Trial court case number: 13-CV-0806
Trial court: 122nd District Court of Galveston County
On February 9, 2016, appellant, Samuel Ricki Hernandez, Jr., proceeding pro se
and incarcerated, filed a notice of appeal from the trial court’s January 8, 2016 order
granting the State’s motion for summary judgment in this civil asset forfeiture case. On
April 26, 2016, because there was no reporter’s record and the appellant is a pro se
inmate who was deemed indigent for purposes of the appellate filing and record fees, this
Court ordered the trial clerk to mail the clerk’s record to appellant. On May 5, 2016, the
trial clerk confirmed that the clerk’s record was delivered to appellant on May 2, 2016.
On June 6, 2016, appellant filed this motion for the appointment of appellate
counsel, pursuant to 28 U.S.C. § 1915(e)(1), which only permits a federal trial court to
appoint counsel to certain indigent civil litigants. Appellant claims that he needs counsel
because, among other things, he was granted in forma pauperis status here, this case
involves complex issues, and he was diagnosed in 2009 as mildly mentally retarded.
Because this Court lacks authority to appoint counsel, the Court construes this
motion to seek abatement of this appeal for the trial court to consider whether to appoint
appellate counsel. See Reed v. Tex. Dep’t of Crim. Justice-Instit. Div., No. 01-02-00734-
CV, 2003 WL 21545122, at *1 (Tex. App.—Houston [1st Dist.] July 10, 2003, no pet.)
(mem. op.) (construing motion for appointment of counsel as request to abate for trial
court to appoint appellate counsel). With rare exceptions not present here, there is no
statutory requirement for a Texas trial court to appoint counsel in civil cases. See Gibson
v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003) (providing for appointed counsel in
“juvenile delinquency cases, in parental termination cases, and in cases in which
application for court-ordered mental health services has been made.”). Also, the trial
court has the discretion to appoint counsel for an indigent civil litigant, but only upon a
proper request. See TEX. GOV’T CODE ANN. § 24.016 (West Supp. 2015) (stating that
“[a] district judge may 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.”).
Here, however, the clerk’s record, filed in this Court on April 12, 2016, does not
contain any application for court-ordered mental health services, the only potentially-
applicable statutory exception here, which deals with involuntary civil commitments to a
mental health facility. See TEX. MENTAL HEALTH CODE ANN. § 574.001(a) (West Supp.
2015) (“A county or district attorney or other adult may file a sworn written application
for court-ordered mental health services.”). Also, while appellant filed a “Declaration of
Inability to Pay Cost[s]” in this Court on March 4, 2016, that was filed after appellant’s
notice of appeal was filed and he requested indigence for appellate cost purposes. The
clerk’s record does not contain any affidavit by appellant requesting the appointment of
trial counsel filed before summary judgment was granted on January 8, 2016.
Furthermore, appellant has not shown the “exceptional circumstances” necessary in this
civil asset forfeiture case, which was decided by the trial court’s granting the State’s
motion for summary judgment without a hearing, that would warrant abating this case for
the trial court to consider whether to appoint appellate counsel. See Wigfall v. Tex. Dep't
of Crim. Justice, 137 S.W.3d 268, 274–75 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
(citations omitted).
Accordingly, appellant’s motion to abate for the appointment of appellate counsel
is denied. See Gibson, 102 S.W.3d at 712. However, because appellant’s brief was due
by June 6, 2016, the same date that appellant’s motion for the appointment of appellate
counsel was filed, the Court construes the pro se appellant’s motion to include a request
for a thirty-day extension of time and sua sponte grants appellant an extension of time to
file his appellate brief with the Clerk of this Court within 30 days of the date of this
order. See TEX. R. APP. P. 38.6(d).
It is so ORDERED.
Judge’s signature: /s/ Laura Carter Higley
 Acting individually
Date: June 16, 2016
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