Has anyone ever filed this type of motion. I have an attorney who consistently refuses to file briefs. 2 due 5/6 - no MTE, Court on its own granted MTE to 7/6, but no brief but filed a late MTE. Court granted late MTE to 8/6 but still no brief. Another brief due 6/16, no MTE, Court on its own motion granted MTE to 7/31 - no brief or MTE filed. The only briefs I have gotten are 2 that were originally due 5/16, but counsel did file MTE and granted to 6/16. No briefs filed on 6/16. Court had to actually ORDER counsel to file briefs - and those got filed - of course counsel has not returned records, missing 6 pages of brief - requested that they be faxed to me and were not. Wrote letter to counsel requesting pages of brief with copy to Court today. I think the only way counsel is going to file briefs is if the Court actually orders him to do so. First brief I had from him was filed 11 weeks late. Thought maybe senidng a motion to dismiss would wake yup the Court to the constant refusal to obey the rules and their letters. Anybody else have any ideas? I have 2 or 3 more appeals by this same attorney that are just in the beginning stages of the appeal process, but I don't expect counsel's diligence will be any different.

Can't say that I've had this problem.

The 1st and the 14th seem to be pretty good about sending late brief letters.

I've got a case where the First Court sent an order of abatement, basically requiring this guy to explain why there's no brief.

If you like, I'll fax it to you. Maybe you can cannibalize it for your motion.

Would appreciate your order - the 11th Court sends the letter that says if brief is not filed will be a possibility of a show cause hearing, but apparently they never follow up on it. Just talked to JAS about it - he gave me some ideas if I decide to file the motion - probably will give it anoter week or so to see if the Court will follow up - but if not I am seriously considering this even though I know a dismissal is not what will happen. Just trying to find a way for the court to light a fire under this attorney. Our admin judge won't take him off the list - but maybe if the Court orders him to show cause and possibly request another attorney be appointed that will get the admin judge's attention. Fax 325-738-8558
Did find case Brager v. State, No. 0365-03, 2004 Tex. Crim. App. LEXIS 2203, 10/13/2004, but that was a pro se defendant. Language helpful, but probably best to file as a motion to abate and remand under TRAP 38.8(b) for a hearing on the cause to see if defendant wants to continue to pursue appeal.


Surprise - the two that the court extended 2 times - just got the briefs - Anders brief - on revocation of deferred and pleas of true to one violation. I guess it takes about 4 months to figure this out and file the anders briefs!!!!

Guess I only have to worry about the one that was due 7/31/08
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Sorry to be the bearer of bad news, but a state appellate court cannot dismiss a criminal case merely because the appellant's attorney won't file the brief.

"An appellant's failure to timely file a brief does not authorize either dismissal of the appeal or, except as provided in (4), consideration of the appeal without briefs." Tex. R. App. P. 38.8(b)(1).

Some appellate courts are more lenient than others in dealing with inattentive attorneys. The Seventh appears to be one of those more lenient districts.

I just sent the fax. Let me know if you don't get it.

It cites TRAP 42.3, 42.4, and 38.8(b)(4).

I would file a motion requesting an abatement and steal almost all of the language from the order I sent.

I would file it with the court and cc it to the appellant's attorney, the admin judge, and the trial judge.

Thanks - I got the fax. I think I will do that on the one that was due 7/31 - maybe next week - give the court a chance to act. (Believe all they will do is grant another extension on their own, if they do act) Apparently they see nothing wrong with the lack of respect to the court or the attorneys total incompetence - either way the judiciary could go a long way in policing the problems if they would.

The Seventh Court apparently gets tired of this problem in Ortiz by requiring the trial court to assist. My guess is trial judges would tire very quickly of having these types of hearings and start overseeing counsel's conduct a bit more.

I have brought this to the attention of judges, and some of the letters from the coa get sent to the judges. Not sure if a hearing would do much more.

quote:

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Originally posted by Martin Peterson:
The Seventh Court apparently gets tired of this problem in http://www.7thcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=12727 by requiring the trial court to assist. My guess is trial judges would tire very quickly of having these types of hearings and start overseeing counsel's conduct a bit more.

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If only. The 5th court does this quite frequently, and some serial offenders seem to skate no matter how many times the appointing judge has to hold a hearing. SB7 made did not improve things; indeed, in some ways it became worse.

OK. Then my only remaining comment is "what a waste, of both time and money and judicial resources and ....." After the hearings are the offenders generally found not to have rendered effective assistance?

Only in exceedingly rare situations have I seen a lawyer kicked off, and none recently. Some of the worst offenders in my recollection eventually drifted out of the practice area or died, I guess. The problem is that these cases are not on the court's nominal docket or jail chain, and the hearings ordered probably just don't cause enough trouble to goad the trial judge to action.

I've thought at times over the years that the appellate courts ought to have the power to order an evidentiary hearing of their own on matters like these, and remove counsel if called for, rather than relying on the trial courts.

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Amen on that! Just wonder if the appellate court judges would do so if they had the opportunity. It seems once a person is on the appointment list it takes an act of congress to get them off.

You would think the appellate courts would take advantage of that. It cannot be easy to be a court dependent upon another court to determine who practices in your court. As uneasy as trial judges were prior to SB7, the appellate judges are worse off. Certainly, there are logistical hurdles, who would pay, etc. And maybe an appellate judge could poke lots of holes in my idea. Just thinking out loud.