Background
Susan Rae Helton appealed from a case in the 466th District Court of Comal County. Her appellate brief was originally due July 1, 2026. After the Third Court of Appeals granted counsel an extension and warned that no further extensions would be granted, the deadline became September 8, 2026.
Counsel did not tender the brief by that deadline. On September 14, the court notified counsel that the brief was overdue and warned that failure to provide a satisfactory response by September 24 could lead to referral to the trial court for a hearing under Texas Rule of Appellate Procedure 38.8(b).
The Court’s Holding
The court abated the appeal and remanded the matter to the trial court. It directed the trial court to conduct a hearing to determine whether Helton wishes to pursue her appeal and, if she does, whether her counsel has abandoned it.
The trial court must issue appropriate written findings and recommendations and, if necessary, appoint substitute counsel capable of effectively representing Helton. The hearing must be transcribed, and the resulting supplemental clerk’s and reporter’s records—including all findings and orders—must be forwarded to the court of appeals by October 28, 2026.
Key Takeaways
- The appellate court did not decide the merits of Helton’s criminal appeal.
- A missing appellate brief prompted a Rule 38.8(b) inquiry into whether Helton still wants to appeal and whether counsel has abandoned the case.
- The trial court must appoint substitute counsel if necessary and return the supplemental record by October 28, 2026.
Why It Matters
The order illustrates the procedural safeguards used when counsel fails to file a brief in a criminal appeal. Rather than dismissing or deciding the appeal without further inquiry, the appellate court required the trial court to determine the appellant’s wishes and the status of counsel’s representation.
The remand also creates a formal record of the inquiry and permits replacement of counsel if needed, helping protect the appellant’s ability to pursue appellate review.