What are the requirements for court-appointed attorneys to withdraw from a case using an Anders brief?
This question has been addressed in 8 Texas court opinions:
CB Sanders v. The State of Texas
COA07 — February 5, 2026
In Sanders v. State, the Seventh Court of Appeals addressed whether an appeal has merit after a defendant enters a 'plea of true' to violating community supervision. The appellant, who was originally on deferred adjudication for promoting prostitution, admitted to ten violations. The court analyzed the case under the Anders framework, which requires an independent review of the record for nonfrivolous issues. The court held that because a 'plea of true' constitutes sufficient evidence standing alone to support an adjudication of guilt, the appeal was meritless. This ruling confirms that such admissions are legally conclusive, leaving no room for a defendant to challenge the evidentiary basis of the trial court's judgment.
Litigation Takeaway
“A criminal 'plea of true' is a powerful judicial admission that can be leveraged in family law litigation. If a parent admits to criminal violations in a criminal court, they are effectively barred from denying that conduct in a custody or divorce case, making it much easier to prove that their behavior is not in the child's best interest.”
Westyn Gregory Whetstone v. The State of Texas
COA07 — February 5, 2026
In Whetstone v. State, a defendant was convicted of criminal trespass, but the written judgment erroneously labeled the offense as a Class A misdemeanor involving a 'habitation' despite the State having abandoned that specific allegation at trial. The Seventh Court of Appeals analyzed the record under Texas Rule of Appellate Procedure 43.2(b), which allows appellate courts to reform judgments to 'speak the truth' when they have the necessary information to do so. The court held that because the jury charge and sentencing only reflected a Class B offense, the written judgment contained a clerical error that must be reformed to reflect the actual adjudication.
Litigation Takeaway
“Never rely solely on the 'four corners' of a criminal judgment in custody litigation; clerical errors can incorrectly escalate a minor offense into a 'habitation' crime that triggers heightened scrutiny under the Texas Family Code. Always audit the underlying jury charge and trial records to ensure your client's criminal history is accurately represented and seek a reformation or judgment nunc pro tunc if errors are discovered.”
Pena v. The State of Texas
COA07 — January 28, 2026
In Pena v. State, the Seventh Court of Appeals addressed whether a trial court could assess $1,600 in attorney’s fees and duplicate court costs against a defendant who had been determined indigent and appointed counsel. The legal issues arose from two criminal cases adjudicated in a single, consolidated proceeding. The court analyzed Texas law, which presumes that a party remains indigent throughout the proceedings unless a 'material change' in financial circumstances is proven. Additionally, the court reviewed statutory prohibitions against assessing court costs multiple times for cases heard together. The court held that the trial court erred by assessing attorney's fees without evidence of the defendant's ability to pay and by double-charging court costs, resulting in a modification of the judgments to strike the improper fees and costs.
Litigation Takeaway
“When multiple legal matters are heard in a single trial, always audit the clerk’s bill of costs to ensure you aren't being double-charged for administrative fees. Furthermore, if a party has filed a Statement of Inability to Afford Payment of Court Costs (Rule 145), they are generally shielded from paying attorney's fees unless the opposing party can prove a material improvement in their financial situation.”
IN THE INTEREST OF T.F., A CHILD
COA02 — January 30, 2026
In this case, a father appealed the termination of his parental rights. His court-appointed attorney filed an Anders brief, stating that after a thorough review of the record, there were no valid legal grounds for an appeal, and simultaneously moved to withdraw as counsel. The Second Court of Appeals performed its own independent review of the record and agreed that the appeal was frivolous, affirming the trial court's termination order. However, the court denied the attorney's motion to withdraw. Applying the Texas Supreme Court's standard from In re P.M., the court held that an appointed attorney’s duty in a termination case continues through the filing of a petition for review with the Texas Supreme Court, and the mere fact that an appeal is frivolous does not constitute 'good cause' to allow an attorney to withdraw.
Litigation Takeaway
“In parental termination cases, an appointed attorney’s obligation to their client is extensive; filing an Anders brief due to a lack of merit does not automatically permit the attorney to withdraw. Counsel must remain on the case through the Texas Supreme Court stage unless they can demonstrate specific 'good cause'—such as a conflict of interest—that is independent of the appeal's lack of merit.”
In re E.L.S.
COA12 — February 4, 2026
A juvenile, E.L.S., appealed a trial court order transferring him from the Texas Juvenile Justice Department (TJJD) to the Texas Department of Criminal Justice (TDCJ) to complete a thirty-year murder sentence. Appointed counsel filed an Anders brief asserting the appeal was frivolous and moved to withdraw. The Twelfth Court of Appeals affirmed the transfer, citing the juvenile's extensive behavioral incidents and psychological evaluations. However, the court denied the motion to withdraw, holding that under Texas Family Code § 56.01 and the doctrine established in In re P.M., the statutory right to counsel in juvenile proceedings extends through the filing of a petition for review in the Texas Supreme Court.
Litigation Takeaway
“In Texas juvenile delinquency cases, appointed counsel's duty of representation does not terminate upon the filing of an Anders brief; the 'P.M. Rule' applies, requiring counsel to assist the client through the discretionary review phase at the Texas Supreme Court if the client chooses to proceed.”
Westyn Gregory Whetstone v. The State of Texas
COA07 — February 5, 2026
In Whetstone v. State, a defendant was convicted of Class B misdemeanor criminal trespass, but the trial court's written judgment incorrectly recorded the offense as a more serious Class A misdemeanor involving a habitation. On appeal, the Seventh Court of Appeals performed an independent review of the record and found that the State had explicitly abandoned the higher charge before the jury was instructed. Applying Texas Rule of Appellate Procedure 43.2(b), the court analyzed the discrepancy as a clerical error and held that it had a mandatory duty to reform the judgment to 'make the record speak the truth.' The court modified the judgment to reflect the correct statute and offense degree, ensuring the defendant's criminal history accurately reflected the actual adjudication.
Litigation Takeaway
“Always verify the underlying record of a criminal conviction used in family law litigation; clerical errors can 'inflate' a minor offense into a serious crime, potentially unfairly biasing a judge's decision regarding child custody or parental fitness.”
In the Interest of E.R.H., et al, Children
COA04 — January 28, 2026
After a trial court terminated a father's parental rights to six children based on endangerment and failure to complete a service plan, the father appealed. His court-appointed attorney filed an Anders brief, stating that after a professional review of the record, there were no non-frivolous grounds for appeal. The Fourth Court of Appeals conducted an independent review of the record, evaluating whether 'clear and convincing' evidence supported the statutory termination grounds and the children's best interest. The court found the evidence of environmental endangerment and failure to comply with the service plan was sufficient to uphold the ruling, affirming the termination order.
Litigation Takeaway
“When a trial court record is thoroughly developed with clear and convincing evidence regarding child endangerment and a parent's failure to follow court-ordered service plans, the termination of parental rights is extremely difficult to overturn on appeal, even when a court-appointed attorney seeks a full review.”
In the Matter of F.M., A Juvenile
COA12 — February 18, 2026
A juvenile, F.M., appealed a trial court order transferring him from the Texas Juvenile Justice Department (TJJD) to the Texas Department of Criminal Justice (TDCJ) to serve the remainder of an 18-year sentence for aggravated robbery. The Twelfth Court of Appeals reviewed the juvenile's behavioral record—which included 71 incidents and a failure to complete violent offender treatment—and determined the trial court did not abuse its discretion in ordering the transfer. Crucially, the court also addressed whether appointed counsel could withdraw after filing an Anders brief (a brief stating the appeal is frivolous). Drawing a parallel to parental termination cases under In re P.M., the court held that the statutory right to counsel in juvenile proceedings extends through the filing of a petition for review in the Texas Supreme Court. Consequently, the court affirmed the transfer but denied the attorney's motion to withdraw.
Litigation Takeaway
“In cases involving appointed counsel under the Texas Family Code (including juvenile and termination matters), an Anders brief is not an immediate exit strategy. Counsel's duty of representation is "sticky" and persists through the petition for review stage in the Texas Supreme Court; you must remain appointed to assist the client with further review if they request it, even if you believe the appeal lacks merit.”