The “Anders Brief” — It’s Not Just For Criminal Appeals Anymore

Originally published by Carrington Coleman.

Earlier this week the Dallas Court of Appeals followed the procedures established in Anders v. California, 386 U.S. 738 (1967), to affirm an order terminating parental rights in the face of the mother’s baseless appeal. The decision is the latest reminder that Anders is not confined to the criminal context in which it was born.

In Anders, the United States Supreme Court fashioned a protocol to balance the right of a criminal defendant to appeal a conviction against the ethical obligations of appointed counsel and the attendant considerations of judicial economy and efficiency with respect to a frivolous appeal. Pursuant to Anders, if a criminal defendant insists on pursuing an appeal, but appointed counsel believes that appeal to be without merit, counsel must thoroughly review the record and the law, file a brief detailing that review and explaining why an appeal would be frivolous, and move to withdraw as counsel. Counsel must provide a copy of the brief and motion to the client. Faced with an “Anders brief,” the appellate court undertakes its own review of the record and law to determine whether the appeal is wholly frivolous. It must also afford the client the opportunity to respond, pro se or otherwise. If, after all that, the court finds the appeal is not wholly frivolous, the appeal will proceed and the appeals court will deny the motion to withdraw or appoint substitute counsel. But if the court agrees the appeal has no merit, as is usually the case, it will grant counsel’s motion to withdraw and affirm the decision of the court below.

“Anders is firmly embedded in Texas criminal jurisprudence.” In re D.A.S., 973 S.W.2d 296 (Tex. 1998). But in D.A.S., the state’s Supreme Court extended Anders to juvenile commitments, which, though “quasi-criminal in nature,” are “classified as civil proceedings.” Id. Courts of appeals across the state have applied Anders to involuntary mental health commitments, e.g., State ex rel. L.E.H., Jr., 228 S.W.3d 219 (Tex. App.—San Antonio 2007, no pet.), and to terminations of parental rights, e.g., In re D.D., 279 S.W.3d 849 (Tex. App.—Dallas 2009, pet. denied). The Dallas Court’s decision this week in In re N.A. reminds us that the Anders procedures will apply to most, if not all, situations in Texas where an appointed counsel’s client insists on pressing what counsel deems to be a meritless appeal.

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