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It seems to me that with ever-increasing frequency appointed appellate counsel are preferring not to timely file the brief they were appointed by the court to prepare. And, instead of providing any reasonable explanation of the need for additional time, they either file no motion under Tex.R.App.P. 10.5(b) or merely say they are too busy to comply with Tex.R.App.P. 38.6(a) (which the courts accept as a reasonable explanation). While comments 3 and 7 to Tex.R.Discip.Cond. 3.02 and Tex.R.Discip.Cond. 1.01(b) come to mind, the path chosen by the courts in my cases follows Tex.R.App.P. 38.8 (b)(2) and (3). This results in the appellate clerk having to take time to notify counsel of their default. Interestingly, some of the courts do not use the ten day rule set forth in Rule 38.8(b)(2) but merely automatically specify a new deadline for the filing of the brief (a practice which encourages late filing). But, not infrequently, the appellant's attorney still takes no action and a hearing under (b)(3) is required. This results in issuance of a bench warrant and the other costs associated with the transportation and housing of the appellant by our sheriff, and of course, our time and the judge's time. Interestingly, the Tenth Court recently tried to streamline this procedure by suggesting we call up the inmate. I have cases where the procedure specified by Rule 38.8 has already taken more than 8 months extra time in getting an appellate brief filed (the appellant invariably says he desires to continue with the appeal).

Is this a problem elsewhere? I recognize that it is not really a problem in that this course guarantees the appellant remains incarcerated longer. But, I am growing tired of the (b)(3) hearings! Thus, I am considering preparing a form affidavit which sets out whether the appellant desires to prosecute his appeal, and whether appellate counsel has abandoned the appeal (or what else has caused the delay). I am unsure whether I can force the use of the affidavit, but something needs to be done to save expenses and minimize delay. Have you tried to address this issue in some better way than a hearing, findings, and supplemental record?
Posts: 2391 | Registered: February 07, 2001Reply With QuoteReport This Post
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Can't say it's much of a problem in the Fort Worth Court of Appeals.

The 2nd Court's requirements for a defense motion for extension are very loose. So a motion for extension requires no real effort.

My impression is that if a case has to be abated, the previously appointed appellate counsel is seldom allowed to stay on the case (and is not paid). Also, I suspect appellate counsel are told that squandering the trial court's time is not a good way to get future appointments.

Finally, the 2nd Court now regularly threatens (when granting an extension) to find appellate counsel in contempt if a brief is not filed on time.
Posts: 38 | Registered: January 09, 2003Reply With QuoteReport This Post
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