Opinion
Appellate case number: 01-17-00188-CV
01-23-2018
In the matter of J. J. H.
SECOND ORDER OF CONTINUING ABATEMENT Trial court case number: 12-CJV-017462 Trial court: County Court at Law No 4 of Fort Bend County
This Court's January 11, 2018 Order of Continuing Abatement had abated and remanded this case for the county court to conduct a late-brief hearing. On January 12, 2018, the county clerk filed a supplemental clerk's record attaching, among other documents, a proof of death letter stating that appellant, J. J. H., passed away on November 25, 2017. Because this is a civil case and appellant passed away after the trial court's judgment, but before disposition of this appeal, this appeal may be perfected, and this Court will proceed to adjudicate it as if all parties were alive. See TEX. R. APP. P. 7.1(a)(1). However, Rule 7.1 does not dispense with the actual-controversy requirement and, generally, an appeal will be allowed to proceed after an appellant's death only if the judgment affects appellant's property, as opposed to personal, rights. See In the Interest of C.H.S., No. 07-17-00117-CV, 2017 WL 6614508, at *1 (Tex. App.—Amarillo Dec. 20, 2017, no pet. h.) (mem. op.) (dismissing as moot appellant's issues concerning only personal, and not property, rights following appellant's death) (citation omitted).
Accordingly, the Court sua sponte continues to ABATE the appeal, and REMANDS for the county court to hold a hearing with appellant's appointed counsel, Jennifer R. Gaut, or else the court shall appoint new counsel, to determine whether appellant's mother/estate representative should be contacted to authorize moving to dismiss this appeal or filing a brief. See, e.g., Durham v. Durham, No. 07-14-00346-CV, 2015 WL 4930981, at *1 (Tex. App.—Amarillo Aug. 14, 2015, order) (ordering appellant's counsel to file identity of estate representative for ratification of joint motion to dismiss appeal filed after appellant's death).
We further order the county clerk to file a supplemental clerk's record, and the court reporter to file the supplemental reporter's record, if any, within 30 days of the date of this Order. This appeal remains abated, treated as a closed case, and removed from this Court's active docket. The appeal will be reinstated on this Court's active docket when the supplemental clerk's record and any reporter's record are filed.
It is so ORDERED. Judge's signature: /s/ Laura C. Higley
[v] Acting individually [ ] Acting for the Court Date: January 23, 2018