EX PARTE RAUL GARZA SALAZAR v. << (2017)

MEMORANDUM OPINION

Appellant, Raul Garza Salazar, appealed an order denying habeas corpus relief and associated orders rendered in trial court cause numbers 2013-DCR-01700 and 2013-DCR-01701 in the 445th District Court of Cameron County and docketed in these appellate causes respectively. Appellant's counsel advised this Court that appellant no longer wished to pursue his appeals so we abated and remanded these causes to the trial court with directions to make findings and recommendations concerning: (1) whether appellant can be located; (2) whether appellant has abandoned his appeals; and (3) if any other orders are necessary to ensure the proper and timely pursuit of appellant's appeals. Appellant's counsel subsequently filed both a motion to withdraw the appeals and a motion to withdraw as counsel for the appeals. The motion to withdraw was not signed by both appellant and counsel as required by the appellate rules. See TEX. R. APP. P. 42.2.

We have now received the trial court's findings and recommendations following remand. Accordingly, these appeals are reinstated. According to the trial court's findings, as stated here in relevant part, appellant's attorney has been unable to locate or communicate with appellant:

3. After the court inquired why Mr. Salazar was not present at the hearing, [appellant's counsel] said that he had attempted to communicate with Mr. Salazar by regular mail and certified mail at his last known mailing address and had employed a process server to try to locate Mr. Salazar. The process server made several attempts to locate Mr. Salazar, but was unable to locate him. The certified mail envelope was returned “unclaimed.” The regular mail envelope was not returned.

4. [Appellant's counsel] informed the court that Mr. Salazar had instructed him to dismiss both appeals. After [appellant's counsel] prepared the motions to dismiss, Mr. Salazar refused to meet with him and has failed to cooperate with him. Thus, [appellant's counsel] was unable to obtain Mr. Salazar's signature on the motions. Nevertheless, [appellant's counsel] filed the motions to dismiss because Mr. Salazar had instructed him to dismiss the appeals.

5. Because Mr. Salazar refused to cooperate with him, [appellant's counsel] felt he had no choice but to file motions to withdraw as Mr. Salazar's counsel.

6. Motions to withdraw are now pending in the court of appeals.

7. Because Mr. Salazar was not present at the hearing, the court is unable to make findings regarding Mr. Salazar's intention to proceed or dismiss these appeals.

8. The court, however, finds that Mr. Salazar has failed and refused and still fails and refuses to cooperate with Mr. Warner.

Based upon the trial court's findings and conclusions that appellant does not want to continue his appeals, cannot be located, and has failed to cooperate with counsel, we conclude that good cause exists to suspend the operation of Rule 42.2(a) in these cases. See In re S.W.O., 230 S.W.3d 205, 2015 (Tex. App.—Houston [14th Dist.] 2006, no pet.); Hendrix v. State, 86 S.W.3d 762, 763 (Tex. App.—Waco 2002, no pet.); Conners v. State, 966 S.W.2d 108, 110–11 (Tex. App.—Houston [1st Dist.] 1998, pet. ref'd); see also TEX. R. APP. P. 2. Accordingly, we grant the motion to dismiss and we dismiss the appeals. We dismiss counsel's motion to withdraw as moot.

ROGELIO VALDEZ Chief Justice