P.A.P. v. State

• Decision Date: 14 October 1987
• Docket Number: No. 4-87-00056-CV,4-87-00056-CV
• Parties: In the Matter of P.A.P., A Minor, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 476

739 S.W.2d 476

In the Matter of P.A.P., A Minor, Appellant, v. The STATE of Texas, Appellee.

No. 4-87-00056-CV.

Court of Appeals of Texas,

San Antonio.

Oct. 14, 1987.

Raymond Angelini, San Antonio, for appellant.

Fred G. Rodriguez, Daniel Thornberry, San Antonio, for appellee.

Before the court en banc.

OPINION

PER CURIAM.

Appellant attempts to appeal orders signed December 11, 1986, adjudging her to have engaged in delinquent conduct and committing her to the Texas Youth Commission. On December 10, 1986, appellant's attorney filed a written notice of appeal. The attorney had not also been appointed appellant's guardian ad litem. No cost bond, cash deposit, or affidavit in lieu thereof have been filed. See TEX.R.APP.P. 40(a). We were of the opinion that appellant had failed to perfect her appeal, and on July 30, 1987, we ordered both parties to the appeal to brief the jurisdictional issues involved.

It is well settled that appeals in juvenile delinquency proceedings are governed by the civil procedural rules. TEX.FAM.CODE ANN. § 56.01(b); Brenan v. Court of Civil Appeals, Fourteenth District, 444 S.W.2d 290, 292 (Tex.1969); J.M.C. v. State, 712 S.W.2d 237, 238 (Tex.App.--San Antonio 1986, no writ). An appeal may not be perfected by a juvenile without complying with TEX.R.APP.P. 41 and 46. Brenan, 444 S.W.2d at 292; In the Matter of R.R., 664 S.W.2d 418, 419 (Tex.App.--Corpus Christi 1983, no writ) (construing former TEX.R.CIV.P. 354 and 355). Had appellant's attorney also been appointed his guardian ad litem, the notice of appeal filed in this case would probably have been sufficient to perfect the appeal. In the Matter of A.M., 664 S.W.2d 414, 414 (Tex.App.--Corpus Christi 1983, no writ). This, however, was not the case.

In our order, we also asked the parties to address the due process rights of a juvenile to an appeal. There is no constitutional right to an appeal. Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956). It has only been held that where an appeal is afforded to some litigants, it cannot arbitrarily or capriciously be denied to others without violating the equal protection clause of the Fourteenth Amendment. Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 876, 31 L.Ed.2d 36 (1972). The juvenile in Texas is not denied the right to an appeal. That right is afforded under the civil rules and those rules must be complied with by the juvenile to invoke appellate jurisdiction.

Appellant asserts that, had she been an adult, her appeal would have been perfected by the filing of the notice of appeal. See TEX.R.APP.P. 40(b). She argues that she should not be held to "a higher standard of perfecting an appeal than would be required of an adult." She argues that to require her to do more to perfect her appeal than an adult would have to do violates her due process rights. We fail to understand what "higher standard" is required. If appellant is indigent, as she asserts in her brief, she could have perfected her appeal by the filing of an affidavit stating that she is unable to pay the costs of an appeal. TEX.R.APP.P. 40(a)(3). In the alternative, her guardian ad litem, acting in her fiduciary capacity, could have perfected the appeal by the filing of a written notice of appeal. TEX.R.APP.P. 40(a)(2); In the Matter of A.M., 664 S.W.2d at 414. In either circumstance,...