In Re D. A. S., Relator

In Re R. A. H., Relator

On Petitions for Writ of Mandamus

Justice Baker, joined by Justice Enoch, dissenting.

These cases involve two related mandamus proceedings. However, other than the Court identifying the proceedings as such, paying lip service about the lack of an adequate appellate remedy, and conditionally granting mandamus at the end of the opinion, one would not know it. This Court fails to fairly apply the mandamus standard of review, and attempts to write around the fact that relators have an adequate remedy by appeal. See Walker v. Packer , 827 S.W.2d 833, 840

(Tex. 1992). Consequently, the Court erroneously concludes it can conditionally grant mandamus. I dissent.

Both of these mandamus proceedings arise out of underlying, pending direct appeals in the court of appeals. The juvenile court appointed the same attorney to represent the juveniles in their pending appeals. Appointed counsel filed an Anders brief and the required motion to withdraw. In each case the court of appeals denied the motions to withdraw, struck the Anders briefs and ordered counsel to file, within thirty days of the court's order, either: (1) a brief on the merits of the appeal; (2) a motion to substitute counsel; or (3) a motion to dismiss the appeal signed by appellant's counsel and appellant's legal guardian. Appointed counsel then filed petitions for mandamus in this Court requesting that this Court order the court of appeals to apply the Anders procedures to the two appeals pending in the court of appeals.

Mandamus is an extraordinary remedy, available only in limited circumstances. See Canadian Helicopters, Ltd. v. Wittig , 876 S.W.2d 304, 305 (Tex. 1994); Walker , 827 S.W.2d at 840. Mandamus will not issue when there is a clear and adequate remedy at law, such as a normal appeal. See Walker , 827 S.W.2d at 840; State v. Walker , 679 S.W.2d 484, 485 (Tex. 1984). The requirement that a party seeking mandamus relief establish the lack of an adequate appellate remedy is a "fundamental tenet" of mandamus practice. See Walker , 827 S.W.2d at 840; Holloway v. Fifth Court of Appeals , 767 S.W.2d 680, 684 (Tex. 1989). Reviewing courts must comply with the strict procedural requirements attendant to mandamus proceedings. See Walker , 827 S.W.2d at 839-42.

The orders about which the two juvenile appellants complain both arise out of pending direct appeals in the court of appeals. This Court recognizes that whether the Anders procedure applies to juvenile appeals is one of first impression in this Court.

However, the Court does not fairly apply the established mandamus standard of review. I believe that review by petition for review from the court of appeals' final decision in these pending appeals is an adequate remedy. Here, the Relators have not demonstrated why an ordinary appeal is not adequate. The Court's attempt to do so is nothing more than setting up straw man arguments against the three options the court of appeals provides in its order and then concluding that, once having knocked down the straw men, there is no adequate remedy by appeal.

The Court speculates that if an attorney chooses the first option and files a brief on the merits and the appeal is truly frivolous, filing the brief would violate ethical rules. The Court further speculates that if disciplinary proceedings were initiated a petition for review could not undo this harm. This reasoning puzzles me, because I find it difficult to believe that the very court that ordered the attorney to file a brief on the merits in the appeal would then turn around and initiate a disciplinary proceeding against the attorney for doing so. The attorney could comply with the court of appeals' order and when the court of appeals concludes the pending appeal, a petition of review would lie.

The Court further speculates that if either the second or third options are chosen, this would render the Anders issue moot and the issue would evade review. It seems to me that in these two proceedings, it is more likely than not that the Relators would choose to file a brief on the merits, preserve the Anders issue, and then petition for this Court's review.

Because I believe that the juvenile appellants have adequate legal remedies, I would not reach the merits of the Anders issue until the appeal. Consequently, I do not believe the Court should grant mandamus in these cases. I respectfully dissent.

James A. Baker,

Justice

OPINION DELIVERED: July 3, 1998