EX PARTE F.T.K.

No. 13-16-00535-CV.

EX PARTE F.T.K.

Court of Appeals of Texas, Thirteenth District, Corpus Christi, Edinburg.


Attorney(s) appearing for the Case

Daniel Olds , for Texas Dept of Public Safety, Appellant.

Floyd Thomas Killough, N. Chad Morgan , for Floyd Thomas Killough, Appellee.

Before Justices Rodriguez, Contreras>, and Longoria.


ORDER

PER CURIAM

Appellant, the Texas Department of Public Safety, has appealed an order of expunction.2 Appellant's brief has been filed, but the appellee F.T.K. has not yet filed his brief in this matter. Appellee's appointed counsel, the Honorable Chad Morgan, has filed a motion to withdraw as counsel on grounds that he was not appointed for purposes of the appeal.

Adequate reason for the discharge of counsel and appointment of new counsel rests within the sound discretion of the trial court. Carroll v. State, 176 S.W.3d 249, 255 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd). In those circumstances where the appointment of substitute counsel may be necessary, an appellate court, when faced with a motion to withdraw, should abate the proceeding to the trial court for determination of this issue. Accordingly, we ABATE the appeal and REMAND the cause to the trial court for further proceedings consistent with this order.

Expunction proceedings are authorized by Chapter 55 of the Texas Code of Criminal Procedure and are considered civil causes of action, not criminal. See Ex parte Wilson, 224 S.W.3d 860, 861 (Tex. App.-Texarkana 2007, no pet.); Pitts v. State, 113 S.W.3d 393, 395 (Tex. App.-Houston [1st Dist.] 2003, no pet.). As a general rule, expunction proceedings are not exceptional cases requiring trial courts to appoint counsel for indigent litigants. Ex parte Munoz, 139 S.W.3d 349, 352 (Tex. App.-San Antonio 2004, no pet.); Pitts v. State, 113 S.W.3d at 393.

Upon remand, the trial court shall determine whether appellant's court-appointed attorney should remain as appellant's counsel; and, if not, whether appellant is entitled to new appointed counsel. If the trial court determines that there is no reason to discharge appellant's current appointed attorney and appoint substitute counsel, the court shall enter an order to that effect. If the trial court determines that new counsel should be appointed, the name, address, telephone number, email address, and state bar number of newly appointed counsel shall be included in the order appointing counsel. The trial court shall further cause its order to be included in a supplemental clerk's record to be filed with the Clerk of this Court on or before the expiration of thirty days from the date of this order.

IT IS SO ORDERED.

FootNotes


1. Justice Dori Contreras, formerly Dori Contreras Garza. See TEX. FAM. CODE ANN. § 45.101 et seq. (West, Westlaw through 2015 R.S.).
2. This appeal was transferred to this Court from the Tenth Court of Appeals by order of the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 22.220(a) (West, Westlaw through 2015 R.S.); (delineating the jurisdiction of appellate courts); TEX. GOV'T CODE ANN. § 73.001 (West, Westlaw through 2015 R.S.) (granting the supreme court the authority to transfer cases from one court of appeals to another at any time that there is "good cause" for the transfer).

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