Background
Machicek appealed a conviction from the 155th District Court of Fayette County. The appellate court granted multiple extensions for filing her opening brief, with the final deadline set at June 15, 2026. At that time, the court explicitly warned that no further extensions would be granted. Despite this warning, appellant’s counsel failed to file the brief by the deadline or request any additional relief.
The brief remained unfiled as of June 26, 2026, when the appellate court issued this order.
The Court’s Holding
The court abated the appeal and remanded the case to the trial court with specific directives. The trial court must conduct a hearing to determine (1) whether appellant desires to continue prosecuting the appeal, and (2) whether appellant’s counsel has abandoned the appeal. The trial court is required to make written findings and recommendations based on this hearing.
If the trial court determines that effective representation is lacking, it shall appoint substitute counsel. The trial court must ensure the hearing is transcribed and shall order the preparation of supplemental clerk’s and reporter’s records, which must be forwarded to the appellate court no later than July 10, 2026.
Key Takeaways
- An appellate court may abate an appeal when counsel fails to timely file briefs despite explicit warnings about the consequences.
- Trial courts have authority under Texas Rule of Appellate Procedure 38.8 to investigate whether an appellant wishes to continue an appeal and whether counsel has abandoned representation.
- Appointment of substitute counsel is available as a remedy when existing counsel proves ineffective in pursuing an appeal.
Why It Matters
This decision illustrates that appellate courts will not indefinitely extend briefing deadlines. Counsel who fail to file required briefs risk abatement and remand for a competency inquiry, which may result in substitution of counsel and delay in appellate resolution. For appellants, this case underscores the importance of ensuring counsel diligently prosecutes appeals.
The decision also demonstrates the appellate system’s mechanism for protecting litigants whose counsel may have effectively abandoned their cases: rather than dismissing outright, courts may remand to trial courts to investigate and remedy inadequate representation before the appellate process is terminated.