Prince v. Texas Department of Family and Protective Services

On July 29, 2009, the trial court signed a final order in the above cause numbers, terminating appellant’s parental rights to three children. Appellant was found to be indigent and had appointed counsel at the trial level. On August 21, appellant filed her notice of appeal, motion for new trial, and statement of points on appeal. Trial counsel also filed a motion to withdraw along with the notice of appeal and other documents. On August 24, appellant filed an affidavit of indigence on appeal and a motion for extension of time to file the notice of appeal, which this Court granted. The trial court held a hearing on appellant’s motion for new trial on August 28, and signed an order overruling the motion. On September 9, the court signed an order explaining that trial counsel had been discharged from the case on August 20 but temporarily reinstated for the hearing on the motion for new trial. The court then discharged trial counsel from the cause. Appellate counsel was appointed on October 15. On December 11, we received notification from the court reporter and the trial court clerk’s office that the trial court had not held a hearing under section 263.405 of the family code and, thus, that there had been no finding made as to whether the appeal was frivolous. See Tex. Fam. Code Ann. § 263.405 (West 2008). The reporter also stated that he had not received a written request or payment for the record.

Section 263.405 requires that a party who seeks to appeal from a termination order must file a motion for new trial or statement of points on which she intends to appeal.*fn1 Id. § 263.405(b). If the party wishes to obtain a free record for her appeal, “[t]he trial court shall hold a hearing not later than the 30th day after the date the final order is signed to determine” whether the motion for new trial should be granted, whether the party is indigent, and whether her appeal is frivolous. Id. § 263.405(d) (emphasis added). The statute further requires that “[t]he appellate record must be filed in the appellate court not later than the 60th day after the date the final order is signed by the trial judge, unless the trial court, after a hearing, grants a new trial or denies a request for a trial court record at no cost.” Id. § 263.405(g) (emphasis added).*fn2