Family Code § 107.013(e) Counsel Discharge Procedure | A. M. v. DFPS (2026)

A. M. and J. D. v. Texas Department of Family and Protective Services, 03-26-00530-CV, June 30, 2026.

On appeal from County Court at Law No. 1 of Williamson County

Synopsis

A parent seeking appellate relief from the trial court’s discharge of appointed counsel under Texas Family Code § 107.013(e) must first ensure the appellate record contains a signed discharge order and the relevant reporter’s record. In A. M. v. DFPS, the Third Court held that merits-based relief was premature without those materials, and the proper course was to abate the appeal, remand for entry of a signed order with any supporting findings and conclusions, and supplement the record.

Relevance to Family Law

Although this order arises in a parental-rights case, its procedural lesson is broader for Texas family lawyers handling SAPCRs, custody modifications, enforcement proceedings, divorce cases involving indigence issues, and any matter in which counsel appointment, fee-shifting, or indigency findings affect access to the courts. The opinion underscores a recurring appellate reality in family litigation: even when the trial court appears to have acted outside statutory authority, meaningful appellate relief often turns on whether counsel has secured a reviewable written order and a complete record. In high-velocity family dockets, that point matters not just in termination cases, but whenever a trial court orally announces a ruling affecting representation, participation, or appellate rights.

Case Summary

Fact Summary

The case came to the Third Court on an emergency motion filed by appellant J.D. in a DFPS appeal. J.D. represented that the trial court had previously appointed counsel for him based on indigence. After he filed his notice of appeal, however, the trial court reportedly issued an order setting a hearing on his indigence determination, conducted that hearing on its own initiative, found that J.D. was no longer indigent, and orally discharged his appointed appellate counsel.

According to J.D.’s motion, no party authorized by Family Code § 107.013(e) had filed a contest to indigency, a motion to discharge counsel, or any other request for reconsideration of the indigence finding. J.D. therefore asked the court of appeals to preserve his right to counsel, review the alleged discharge, require appointment of appellate counsel, abate the appeal until the reporter’s record from the June 17, 2026 hearing was filed, stay appellate deadlines, and direct supplementation of the clerk’s record with materials relevant to indigence, including any signed order resulting from the hearing.

The Third Court noted that the relief requested in substance resembled mandamus relief directed at the trial court’s discharge of counsel. But at the time of the motion, neither a signed discharge order nor the reporter’s record from the hearing had been filed in the appellate court.

Issues Decided

• Whether the court of appeals could grant immediate relief from the trial court’s alleged discharge of appointed counsel under Family Code § 107.013(e) when the appellate record did not yet contain a signed discharge order or reporter’s record.
• Whether the proper disposition was to decide the validity of the discharge immediately or instead to abate and remand for entry of a written order and supplementation of the record.

Rules Applied

The court’s order rests on a combination of statutory right-to-counsel principles and ordinary appellate record requirements.

• Texas Family Code § 107.013(a) provides indigent parents in qualifying DFPS cases a right to appointed counsel.
• Texas Family Code § 107.013(e) governs reconsideration of indigence and the discharge of appointed counsel.
• In re P.M., 520 S.W.3d 24, 26 (Tex. 2016), confirms that the statutory right to appointed counsel extends through exhaustion of appeals and that appointed counsel may withdraw only for good cause and on appropriate terms and conditions.
• In re D.D., No. 02-25-00335-CV, 2025 WL 2177180, at *3 (Tex. App.—Fort Worth July 31, 2025, orig. proceeding) (mem. op.), treated a trial court’s sua sponte reconsideration of indigence and discharge of appointed counsel as an abuse of discretion when no statutorily authorized motion triggered reconsideration under § 107.013(e).
• The court also referenced Texas Rule of Judicial Administration 6.2, which presses appellate courts to bring parental-termination appeals to final disposition within 180 days of the notice of appeal.

Application

The Third Court did not reject J.D.’s statutory argument on the merits. To the contrary, the order signals that the argument was serious enough to warrant immediate intervention to stabilize the record. The court expressly cited In re D.D., which had already concluded that a trial court abuses its discretion by sua sponte revisiting indigence and discharging appointed counsel where no authorized party has filed the necessary motion under § 107.013(e). That citation matters. It shows the Austin court understood the alleged defect and viewed it as potentially consequential.

But the court stopped short of granting substantive relief because the appellate file lacked the materials needed for review. There was no signed order memorializing the discharge, and there was no reporter’s record from the hearing at which the trial court allegedly made its oral ruling. Without those items, the court treated the request for mandamus-type relief as premature.

Rather than deny relief outright, the court used abatement strategically. It remanded for the trial court to sign an order reflecting its discharge ruling and to include any applicable findings and conclusions supporting that action. It also directed supplementation of the appellate record after the order was signed. That approach preserved the parent’s ability to pursue relief while respecting the requirement that appellate courts review actual orders, not merely descriptions of oral rulings contained in a motion.

This is an important procedural move for family-law practitioners. The court recognized the urgency of a claimed deprivation of appellate counsel in a termination appeal, but it still insisted on a reviewable record before reaching the merits. In other words, urgency did not eliminate record requirements; it justified expedited abatement to create the record.

Holding

The court held that a request for appellate relief challenging the discharge of appointed counsel under Family Code § 107.013(e) was premature where the appellate court had neither a signed discharge order nor the reporter’s record from the hearing at which the discharge allegedly occurred. On that record, the court would not yet decide whether the trial court had exceeded its authority.

The court further held that the proper disposition was to grant the motion in part by abating the appeal and remanding the case for entry of a signed order, including any supporting findings and conclusions, and for supplementation of the record. The trial court was ordered to sign the order within ten days, and the clerk was directed to file a supplemental record within seven days after signing, after which the appeal would be reinstated.

Practical Application

For family-law litigators, the immediate takeaway is procedural discipline. If a trial court orally alters an indigence finding, discharges appointed counsel, denies a fee-related request affecting representation, or otherwise impairs a party’s ability to prosecute an appeal, do not assume the appellate court can fix the problem based on an emergency motion alone. Get the written order. Get the hearing record. If necessary, ask for abatement specifically to force memorialization of the ruling.

In DFPS termination practice, this opinion reinforces that counsel should frame these disputes in two tracks at once: first, preserve the statutory merits argument under § 107.013(e) and In re P.M.; second, aggressively build a reviewable record. Those tracks must run together. A strong merits position without a signed order may still be procedurally premature.

The case also has analogical force in private family litigation. In custody, enforcement, or divorce matters, trial courts sometimes make oral rulings about continuances, participation by remote means, security for costs, indigence for appellate purposes, or attorney withdrawal that materially affect litigation posture. This decision is a reminder that appellate courts are institutionally reluctant to review those events in the abstract. If the ruling matters, reduce it to writing and secure a reporter’s record.

Practitioners should also note the timing pressure. The court cited the 180-day disposition target for parental-rights appeals, which means lawyers cannot wait passively for the record to sort itself out. If a representation issue arises after notice of appeal, counsel should move immediately for abatement, supplementation, temporary deadline relief, and entry of written findings. Delay risks both waiver arguments and practical prejudice to the client’s appellate rights.

Checklists

Protecting the Record on Counsel-Discharge Issues

• Confirm whether the trial court has signed a written order discharging appointed counsel.
• If no written order exists, promptly request that the trial court reduce the oral ruling to a signed order.
• Request that the written order include any findings and conclusions supporting reconsideration of indigence and discharge.
• Order the reporter’s record from the hearing at which indigence or discharge was addressed.
• File a motion in the appellate court seeking supplementation of the clerk’s and reporter’s records if they are missing.
• If deadlines are running, request a temporary stay or extension tied to record completion.

Preserving a Family Code § 107.013(e) Complaint

• Determine who, if anyone, initiated reconsideration of indigence.
• Review § 107.013(e) carefully to assess whether a statutorily authorized motion or contest was filed.
• Preserve the argument that a sua sponte reconsideration falls outside the statute if no authorized party invoked the procedure.
• Cite In re D.D. for the proposition that a trial court may abuse its discretion by sua sponte discharging appointed counsel.
• Cite In re P.M. for the parent’s continuing right to appointed counsel through the exhaustion of appeals.
• Make a clear record that the parent seeks continued representation on appeal due to indigence.

Emergency Motion Practice in Accelerated Family Appeals

• Style the motion to request targeted relief: abatement, supplementation, stay of deadlines, and preservation of the right to counsel.
• Attach any available documentation, including appointment orders, hearing notices, docket entries, and correspondence from the court or clerk.
• Explain why the relief sought is urgent in light of accelerated appellate deadlines.
• Distinguish between merits relief and record-development relief; ask for both, but recognize the latter may need to come first.
• Ask the appellate court to order entry of a signed order if the trial court has only ruled orally.
• Request reinstatement of the appeal upon supplementation of the record.

Avoiding the Non-Prevailing Party’s Procedural Problem

• Do not rely solely on representations in a motion about what the trial court orally did.
• Do not assume an oral discharge of counsel is immediately reviewable without a signed order.
• Do not wait for the normal appellate record process if counsel status is in dispute.
• Do not frame the issue purely as substantive error without addressing record deficiencies.
• Do not overlook the need for findings and conclusions when the trial court has revisited indigence.
• Do not let accelerated deadlines proceed unchecked while uncertainty exists about who represents the parent on appeal.

Citation

A. M. and J. D. v. Texas Department of Family and Protective Services, No. 03-26-00530-CV (Tex. App.—Austin June 30, 2026, order and mem. op.).

Full Opinion

Read the full opinion here

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