Arthur Hanlon v. The State of Texas--Appeal from County Court at Law No 9 of Bexar County

MEMORANDUM OPINION
No. 04-04-00155-CR
Arthur HANLON,
Appellant
v.
The STATE of Texas,
Appellee
From the County Court at Law No. 9, Bexar County, Texas
Trial Court No. 866255
Honorable Andrew W. Carruthers, Judge Presiding

PER CURIAM

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: March 31, 2004

DISMISSED

On October 17, 2003, Appellant Arthur Hanlon was indicted for indecent exposure. A jury was empaneled to determine whether Hanlon was mentally incompetent to stand trial. After a full evidentiary hearing, the jury found that Hanlon was incompetent to stand trial, that there was no substantial probability that Hanlon would attain the competency to stand trial within the foreseeable future, that Hanlon was a person with mental retardation, and that Hanlon met the criteria for court-ordered commitment to a residential care facility. Thus, on February 25, 2004, the trial court entered judgment, committing Hanlon to a mental health/retardation facility pursuant to the Mentally Retarded Persons Act. Hanlon then filed a notice of appeal.

Hanlon's attorney has now filed a motion to dismiss the appeal on his client's behalf. Hanlon's attorney verifies that Hanlon is profoundly mentally retarded and is incompetent legally and that it is in his best legal interest for this appeal to be dismissed. In criminal cases, Texas Rule of Appellate Procedure 42.2(a) requires an appellant to personally sign the motion to dismiss. Tex. R. App. P. 42.2(a). Here, Hanlon has not personally signed the motion to dismiss. Thus, if this were the usual criminal case, we would deny appellant's motion to dismiss. However, in Hanlon's case, this appeal should be treated as a civil case, not a criminal one.

Hanlon was committed pursuant to section 6 of Texas Code of Criminal Procedure article 46.02, which provides for civil commitment when charges are still pending. See Tex. Code Crim. Proc. Ann. art. 46.02, 6 (Vernon Supp. 2004). Section 6(d)(3) provides the following:

In the proceedings conducted under this section . . . (3) appeals from the criminal court proceedings under this section shall be to the court of appeals as in the proceedings for court-ordered inpatient mental health services under Subtitle C, Title 7, Health and Safety Code, or for commitment to a residential care facility under Subtitle D, Title 7, Health and Safety Code.

See id. 6(d)(3). In turn, subsection (a) of section 593.056 of the Texas Health and Safety Code (located within Subtitle D, Title 7) provides that a "party to a commitment proceeding has the right to appeal the judgment to the appropriate court of appeals." Tex. Health & Safety Code Ann. 593.056(a) (Vernon 2003). And, subsection (b) mandates that civil rules apply to such appeals. See id. 593.056(b). As such, we look to Texas Rule of Appellate Procedure rule 42.1(a). Unlike rule 42.2(a), rule 42.1(a) does not require an appellant to personally sign the motion to dismiss. See Tex. R. App. P. 42.1(a). We, therefore, grant appellant's motion to dismiss.

Pursuant to Texas Rule of Appellate Procedure 42.1(a), we dismiss this appeal.

PER CURIAM

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