Memorandum Opinion Per Curiam, 07-25-00336-CR, February 06, 2026.
On appeal from the 364th District Court, Lubbock County.
Synopsis
The Seventh Court of Appeals invoked Texas Rule of Appellate Procedure 2 to suspend the mandatory signature requirements of Rule 42.2(a) after an appellant expressed a clear desire to abandon his appeal during an on-the-record hearing. The court determined that a party’s recorded statement of intent to dismiss, following a change in circumstances, constitutes sufficient grounds to bypass the “signature trap” and dismiss the matter for lack of prosecution.
Relevance to Family Law
While this is a criminal habeas matter, the procedural mechanism—using TRAP 2 to bypass the technical requirements of TRAP 42—is a powerful tool for family law litigators dealing with uncooperative pro se appellants or “zombie appeals.” In high-conflict divorce or custody litigation, an appellant may settle a case or lose interest but refuse to sign a formal motion to dismiss out of spite or negligence. This holding confirms that if you can secure an on-the-record statement of the appellant’s intent to abandon the appeal (perhaps during a remand for attorney’s fees or a status hearing), the appellate court can utilize Rule 2 to finalize the dismissal and issue the mandate without the appellant’s physical signature on a motion.
Case Summary
Fact Summary
Appellant Matthew Janssen, appearing pro se, appealed from a trial court order denying his application for a writ of habeas corpus and a motion for bail. During the pendency of the appeal, Janssen was released from jail on bond. Recognizing that this change in status might affect Janssen’s desire to prosecute the appeal, the Seventh Court of Appeals remanded the cause to the trial court for an evidentiary hearing. At that hearing, conducted on January 22, 2026, Janssen explicitly informed the trial court that he no longer desired to proceed with the appeal. A supplemental record containing the transcript of this hearing was subsequently filed with the appellate court.
Issues Decided
The court considered whether an appellate court may dismiss an appeal when the appellant has orally expressed a desire to abandon the case on the record, despite failing to file the signed, written motion to dismiss required by the Texas Rules of Appellate Procedure.
Rules Applied
The court looked to Texas Rule of Appellate Procedure 42.2(a), which dictates that in a criminal case, the appellant and his attorney must sign a written motion to dismiss the appeal. To overcome the lack of such a document, the court applied Texas Rule of Appellate Procedure 2, which permits an appellate court—on its own motion or that of a party—to suspend the operation of a specific rule for “good cause” to expedite a decision or for other good cause. The court further relied on the precedent set in Wade v. State, which utilized this exact combination of rules to effectuate a dismissal in similar circumstances.
Application
The court’s analysis focused on the tension between procedural form and substantive intent. Under normal circumstances, the absence of a signed motion under Rule 42 would leave an appeal in a state of indefinite suspension if the appellant failed to follow through with paperwork. However, because the trial court had already conducted a hearing where the appellant’s intent was made clear, the court found that the record provided sufficient “good cause” to trigger Rule 2. By suspending the signature requirement of Rule 42.2(a), the court was able to honor the appellant’s stated intent and clear its docket without further delay. The court treated the supplemental record of the hearing as a functional substitute for the signed motion, ensuring that the procedural rules served the interests of justice rather than obstructing them.
Holding
The Court of Appeals held that it possesses the authority under TRAP 2 to suspend the signature requirements for dismissing an appeal when the record unequivocally reflects the appellant’s desire to abandon the proceedings.
The court further held that based on the appellant’s statements in the supplemental record, the appeal should be dismissed immediately, with the mandate issuing forthwith and no motions for rehearing being entertained.
Practical Application
For the family law practitioner, this case is a strategic blueprint for ending appeals where the opposing party has effectively walked away but refuses to formalize the dismissal. If an appellant in a custody or property dispute stops communicating or achieves their goal through other means (e.g., a post-judgment agreement), counsel should consider moving for a remand to the trial court to determine if the appellant still desires to prosecute the appeal. Once the appellant admits on the record that they are finished with the case, the path is cleared to request a Rule 2 suspension of the Rule 42.1 (the civil equivalent) signature requirement at the Court of Appeals.
Checklists
Bypassing the Signature Requirement
- Identify a change in circumstances (e.g., settlement, mootness, or release) that reduces the appellant’s incentive to continue.
- File a motion in the Court of Appeals to remand for a status hearing or to determine the appellant’s intent to prosecute.
- At the trial court hearing, ensure the court reporter is transcribing the proceeding.
- Elicit a clear, unequivocal statement from the appellant that they “no longer desire to prosecute this appeal.”
- Request that a supplemental record of the hearing be filed immediately with the appellate court.
- File a motion in the appellate court to dismiss, citing TRAP 2 and the Janssen holding to bypass the signature requirements of TRAP 42.1.
Drafting Settlement Agreements to Avoid the Trap
- Include a “Power of Attorney for Dismissal” clause in Rule 11 agreements, authorizing appellee’s counsel to sign a motion to dismiss on the appellant’s behalf if they fail to do so within 48 hours.
- Add language stating that the parties agree that any on-the-record statement of settlement shall be deemed a “motion to dismiss” under TRAP 42.
- Ensure the settlement includes a waiver of the right to file a motion for rehearing at the appellate level to expedite the mandate.
Citation
Janssen v. State, No. 07-25-00336-CR (Tex. App.—Amarillo Feb. 6, 2026, no pet.) (mem. op.).
Full Opinion
Family Law Crossover
In Texas divorce and custody litigation, the “Rule 2 Bypass” can be weaponized to defeat a spouse who is using a pending appeal as a “sword of Damocles” during post-judgment negotiations. If an appellant spouse fails to file a brief or comply with court orders, rather than simply waiting for a dismissal for want of prosecution (which can take months), an appellee can force the issue by requesting a hearing on the appellant’s intent. Once that intent to abandon is on the record, Janssen allows the appellee to leapfrog the signature requirement. This is particularly effective against pro se former spouses who may not understand that their oral statements in open court can be used to waive their appellate rights via Rule 2. It essentially converts a procedural roadblock into a fast-track to finality.
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