Concurring Opinion Filed July 24, 2019.




                                                                 In The
                                          Court of Appeals
                                   Fifth District of Texas at Dallas
                                                       No. 05-19-00161-CV


                         IN THE INTEREST OF T.R.N. AND A.R.N., CHILDREN


                                On Appeal from the 305th Judicial District Court
                                             Dallas County, Texas
                                    Trial Court Cause No. JC-17-00385-X

                                           CONCURRING OPINION
                                                   Opinion by Justice Carlyle
          I write with full recognition of the important process due to a person whose parental rights

have been terminated. For that reason, I concur in the opinion, judgment, and order we issue today.

My concern is the uneven application of rules on motions to withdraw when a court of appeals

affirms after an attorney files an Anders brief.

          We correctly rely on In re P.M. to deny a court-appointed attorney’s unopposed motion to

withdraw because that case says Family Code section 107.016(3)(B) 1 means the attorney must

continue representation until “the date all appeals in relation to any final order terminating parental

rights are exhausted or waived.” 520 S.W.3d 24, 27–28 (Tex. 2016) (per curiam). P.M. instructs




     1
       In 2017, the legislature added subpart (2), and moved former subpart (2) (which P.M. considered) to now-subpart (3) without change. See
Act of May 31, 2017, 85th Leg., R.S., ch. 317, § 9 (H.B. 7) (eff. Sept. 1, 2017).
that “appointed counsel’s obligations can be satisfied by filing a petition for review that satisfies

the standards for an Anders brief.” Id.

           P.M. requires more extensive representation to indigent people represented in the

termination of parental rights (TPR) context than those in the criminal context. In criminal cases,

the court of criminal appeals tells us part of “appointed counsel’s duty to withdraw is based upon

his professional and ethical responsibilities as an officer of the court not to burden the judicial

system with false claims, frivolous pleadings, or burdensome time demands.” Kelly v. State, 436

S.W.3d 313, 318 (Tex. Crim. App. 2014). In criminal cases, “the purpose of the Anders brief is to

satisfy the appellate court that the appointed counsel’s motion to withdraw is, indeed, based upon

a conscientious and thorough review of the law and facts,” making “the Anders brief . . . only the

proverbial tail while the motion to withdraw is the dog.” Id. (cleaned up).2

           The court of criminal appeals tells us: “We hold that the courts of appeals have jurisdiction

and authority to grant a motion to withdraw that accompanies an Anders brief whenever, as here,

they find that appellate counsel has exercised professional diligence in assaying the record for

error, and they agree that the appeal is frivolous.” Meza v. State, 206 S.W.3d 684, 689 (Tex. Crim.

App. 2006) (remanding for the court of appeals to consider counsel’s Anders motion to withdraw);

see also Meza v. State, No. 10-05-00037-CR (Tex. App.—Waco Nov. 1, 2006) (order on remand

granting counsel’s motion to withdraw because counsel exercised diligence in analyzing the record

and the court agreed with counsel’s conclusion that there were no non-frivolous issues to be raised

on appeal). Finally, the court of criminal appeals makes very clear that criminal defendants have

no right for appointed counsel to file a petition for discretionary review after a court of appeals

affirms their conviction after appellate counsel filed an Anders brief. Kelly, 436 S.W.3d at 319–


     2
       Metzler, Theodore, Cleaning Up Quotations, 18 J. of App. Prac. & Process 143 (2017) (discussing and explaining the “cleaned up”
parenthetical, a way to shorten unnecessarily lengthy citations); see Cadena Comercial USA Corp. v. Tex. Alcohol & Beverage Comm’n, 518
S.W.3d 318, 341 n.18 (Tex. 2017) (Willett, J., dissenting); see also United States v. Reyes, 866 F.3d 316, 321 (5th Cir. 2017); Robinson v. Home
Owners Mgmt. Enters., Inc., 549 S.W.3d 226, 231 (Tex. App.—Ft. Worth 2018, pet. filed).

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20; Ex parte Owens, 206 S.W.3d 670, 674 & n.28 (Tex. Crim. App. 2006); Meza, 206 S.W.3d at

688.

       Given that the courts imported the Anders process into the TPR context, it is curious indeed

that the supreme court chose not to follow the very clear court-of-criminal-appeals precedents. See

In re D.A.S., 973 S.W.2d 296, 298–99 (Tex. 1998) (extending Anders procedures to juvenile cases,

which are “quasi-criminal in nature”); P.M., 520 S.W.3d at 27–28 & n.10.

       The statutes the two high courts interpreted do not immediately appear to justify P.M.

diverging from Kelly. The supreme court in P.M. dealt with the following language:

       [A]n attorney appointed under this subchapter to serve as an attorney ad litem for a
       parent or an alleged father continues to serve in that capacity until the earliest of:
       (A) the date the suit affecting the parent-child relationship is dismissed; (B) the date
       all appeals in relation to any final order terminating parental rights are exhausted
       or waived; or (C) the date the attorney is relieved of the attorney’s duties or replaced
       by another attorney after a finding of good cause is rendered by the court on the
       record.

TEX. FAM. CODE § 107.016(3). In Kelly, the court of criminal appeals dealt with the following

language:

       An attorney appointed under this article shall: . . . (2) represent the defendant until
       charges are dismissed, the defendant is acquitted, appeals are exhausted, or the
       attorney is permitted or ordered by the court to withdraw as counsel for the
       defendant after a finding of good cause is entered on the record.

TEX. CODE CRIM. PROC. art. 26.04(j)(2).

       Both laws first provide for representation until the litigation is terminated, in the criminal

context by acquittal or dismissal and in the family context by dismissal. Second, the Family Code

provision provides for representation until “all appeals . . . are exhausted or waived,” while the

Criminal Procedure provision says representation continues until “appeals are exhausted.” Thus,

in this way, the Family Code provides by its terms two ways for the representation to cease while

the Criminal Procedure code provides only one. On their face, these statutes do not appear to

require a different result for motions to withdraw in an affirmed Anders indigent TPR appeal than
                                                 –3–
the settled Anders precedent on motions to withdraw in affirmed Anders indigent criminal or

juvenile appeals.

           P.M. nods to part of the Code of Criminal Procedure that arguably belies its conclusion

that “the exhaustion of appeals includes review sought in this Court.” 520 S.W.3d at 26 n.6 (“But

see TEX. CODE CRIM. PROC. art. 1.051(d)(2)”). Code of Criminal Procedure article 1.051(d)(2)

says “An eligible indigent defendant is entitled to have the trial court appoint an attorney to

represent him in the following appellate and postconviction habeas corpus matters: . . . (2) an

appeal to the Court of Criminal Appeals if the appeal is made directly from the trial court or if a

petition for discretionary review has been granted . . . .” That statute, in concert with court of

criminal appeals precedent, makes clear that criminal defendants have no right to appointed

counsel for filing the petition for discretionary review. Kelly, 436 S.W.3d at 319–20; Ex parte

Owens, 206 S.W.3d at 674 & n.28. Thus, when importing Anders to the TPR context, it would

have seemed correct to continue the practice that courts of appeals may grant an Anders counsel’s

motions to withdraw whenever the court agrees with counsel’s assessment of the record. See Meza,

206 S.W.3d at 689.3

           We require convicted adult criminals to formulate their own petitions for discretionary

review to the court of criminal appeals. Kelly, 436 S.W.3d at 319–20. We require committed

juveniles to “advance [their] appeal through a parent, legal guardian, next friend, or guardian ad

litem.” D.A.S., 973 S.W.2d at 299. But we provide for the continued appointment of counsel for


      3
        Except for the Waco court, every court of appeals considering the issue has concluded that P.M. forecloses granting motions to withdraw
after Anders affirmances in the quasi-criminal juvenile appeals. The Waco court follows D.A.S., which tracks the traditional Anders procedure in
criminal cases and which allows courts of appeals to grant motions to withdraw when attorneys file Anders briefs and the court of appeals affirms
because the appeal is frivolous. See Matter of J.L.C., ___ S.W.3d ___, No. 10-18-00061-CV, 2018 WL 3763736, at *1 & n.1 (Tex. App.—Waco
Aug. 8, 2018, pet. ref’d). The Waco court collected citations of cases in which courts of appeals applied P.M. to deny motions to withdraw in
juvenile Anders affirmances in note 1: “See, e.g. In re C.F., No. 03-18-00008-CV, 2018 WL 2750007, 2018 Tex. App. LEXIS 4128 (Tex. App.—
Austin June 8, 2018, no pet. h.) (mem. op.); In re A.H., 530 S.W.3d 715, 717 (Tex. App.—Fort Worth 2017, no pet.); In re A.C., Nos. 01-15-00932-
CV, 01-15-00933-CV, 2016 WL 1658777, 2016 Tex. App. LEXIS 4285 (Tex. App.—Houston [1st Dist.] Apr. 26, 2016, no pet.) (mem. op.).”
Eastland and Texarkana have joined the other courts in applying P.M. in that context. In re L.H., No. 11-17-00348-CV, 2018 WL 3763804, at * 1
(Tex. App.—Eastland Aug. 9, 2018, no pet.) (mem. op.); Matter of D.T.M., No. 06-18-00071-CV, 2019 WL 1645937, at *1 (Tex. App.—Texarkana
Apr. 17, 2019, no pet.) (mem. op.).



                                                                     –4–
parents whose actions (or inaction) have led a court to terminate their rights to their children, whose

court-appointed appellate lawyer could find no non-frivolous issue to raise on appeal, and when

an intermediate appellate court has agreed with that lawyer’s assessment. P.M., 520 S.W.3d at 27–

28. “Really?”4




                                                                        /Cory L. Carlyle/
                                                                        CORY L. CARLYLE
                                                                        JUSTICE


190161CF.P05




     4
       See Gamble v. United States, 139 S. Ct. 1960, 1999 (2019) (Gorsuch, J., dissenting); Va. House of Delegates v. Bethune-Hill, 139 S. Ct.
1945, 1957 (2019) (Alito, J., dissenting).

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