CROSSOVER: The Anders Brief Loophole: Why Retained Counsel in Parental Termination Appeals Follow TRAP 6.5 Instead

Simon Rico, Jr. v. State, 06-24-00218-CR, March 18, 2026.

On appeal from 354th District Court, Hunt County, Texas.

Synopsis

The Sixth Court of Appeals held that the constitutional safeguards of Anders v. California apply exclusively to indigent appellants with appointed counsel. When retained counsel determines an appeal is frivolous, they are not required to file an Anders brief but must instead comply with the withdrawal requirements of Rule 6.5 of the Texas Rules of Appellate Procedure. Furthermore, the substitution of retained counsel for court-appointed counsel effectively rebuts the presumption of continued indigency.

Relevance to Family Law

In the “quasi-criminal” arena of parental termination litigation, Texas courts often apply the Anders framework to ensure the due process rights of indigent parents are protected on appeal. This ruling is a critical reminder for family law practitioners that the Anders “safety net”—and the rigorous briefing requirements it entails—disappears the moment counsel is retained. If a parent transitions from appointed to retained counsel for an appeal, the procedural path for withdrawing from a meritless case shifts from the Anders protocol to the standard requirements of TRAP 6.5, potentially streamlining the withdrawal process for the advocate while signaling to the court that the appellant no longer qualifies for indigent protections.

Case Summary

Fact Summary

Appellant Simon Rico, Jr. pled guilty to manslaughter and received an eighteen-year sentence. Initially, the trial court found Rico to be indigent and appointed appellate counsel. However, shortly after the record was filed, Rico’s appointed counsel and a newly retained private attorney filed a joint motion to substitute. Once substituted, the retained counsel conducted a review of the record and concluded the appeal was frivolous. Counsel then attempted to follow the Anders protocol by filing a motion to withdraw accompanied by an Anders brief. The Sixth Court of Appeals accepted the brief but declined to file it, instead directing counsel to follow the procedure for retained attorneys. Counsel then filed an amended motion to withdraw pursuant to TRAP 6.5, stating that after a diligent review of the clerk’s and reporter’s records, no arguable grounds for reversal existed.

Issues Decided

1. Whether the procedural requirements of Anders v. California apply to retained counsel who determines that an appeal is frivolous.
2. Whether the substitution of retained counsel for court-appointed counsel rebuts the presumption of an appellant’s continued indigency.
3. Whether retained counsel must follow Rule 6.5 of the Texas Rules of Appellate Procedure to withdraw from a meritless appeal.

Rules Applied

• Anders v. California, 386 U.S. 738 (1967): Establishing the duty of appointed counsel to file a brief referring to anything in the record that might arguably support the appeal when seeking to withdraw from a frivolous case.
• Texas Rule of Appellate Procedure 6.5: Governs the requirements for withdrawal of counsel in appellate courts.
• Eaglin v. State, 710 S.W.3d 833 (Tex. App.—Houston [1st Dist.] 2024, pet. ref’d): Holding that the replacement of appointed counsel with retained counsel rebuts the presumption of continued indigency.
• Lopez v. State, 283 S.W.3d 479 (Tex. App.—Texarkana 2009, no pet.): Clarifying that retained counsel satisfies the goals of Anders by the very nature of their retention and is only required to inform the court of the frivolousness and seek leave to withdraw under Rule 6.5.

Application

The court’s analysis focused on the distinction between the constitutional protections afforded to the indigent and the contractual relationship inherent in retained representation. The court reasoned that Anders was designed to ensure that indigent defendants receive the same quality of advocacy as those who can afford to hire an attorney. Consequently, if an appellant has the means to retain counsel, they have already secured the advocacy Anders seeks to protect.

In this case, because Rico replaced his court-appointed attorney with private counsel, the court determined he was no longer indigent. This shift changed the attorney’s procedural obligations. Rather than filing a formal Anders brief (which requires a detailed roadmap of the record to assist the court’s independent review), the retained attorney only needed to satisfy the professional and ethical obligation to refuse to pursue a frivolous appeal. The court clarified that the mechanism for this is TRAP 6.5. Once the attorney represented that he had reviewed the entire record and found no arguable grounds, and provided the client with the motion to withdraw, the court’s only remaining duty was to verify compliance with Rule 6.5 and conduct its own cursory justice-of-the-record review.

Holding

The Sixth Court of Appeals held that Anders protections do not extend to appellants with retained counsel. The court affirmed that only appointed counsel is burdened with the requirement to file an Anders brief.

The court further held that when a defendant substitutes retained counsel for appointed counsel, the prior finding of indigency is rebutted. Because Rico was deemed non-indigent upon retention of counsel, his attorney’s compliance with TRAP 6.5 was the sufficient and correct procedure for withdrawal. Finding no arguable issues in its independent review of the record, the court affirmed the trial court’s judgment.

Practical Application

• Termination Appeals: When representing a parent in a termination appeal on a retained basis, do not waste firm resources drafting a full Anders brief if the appeal lacks merit. Instead, focus on the notice requirements and client-notification mandates of TRAP 6.5.
• Challenging Indigency: In high-stakes custody or property litigation where a party has obtained a free record or court-appointed counsel due to alleged indigency, the appearance of a “limited scope” or “consulting” private attorney should be used as a basis to move for a redetermination of indigency status under the Eaglin and Rico logic.
• Ethical Withdrawal: Remember that while you are spared the Anders briefing, you still have an ethical duty to the court. You must affirmatively state that you have conducted a diligent and thorough review of the entire record (clerk’s and reporter’s) before certifying the appeal is frivolous.

Checklists

Withdrawal for Retained Counsel in Meritless Appeals

• Review the Entire Record: Ensure both the clerk’s record and all volumes of the reporter’s record have been thoroughly vetted for arguable grounds for reversal.
• Notify the Client: Provide the client with a copy of the motion to withdraw and advise them of their right to file a pro se response.
• Draft the Motion Under TRAP 6.5: Ensure the motion contains the client’s last known address and a statement that the appeal is wholly without merit.
• Avoid the “Anders” Label: Do not label the filing as an Anders brief if the client is paying; simply file the motion to withdraw to avoid procedural confusion by the Clerk’s office.

Rebutting the Presumption of Indigency

• Monitor the Docket: Check for any “Notice of Substitution” or “Joint Motion to Substitute Counsel.”
• File a Motion for Re-Evaluation: If a previously indigent party retains private counsel, cite Rico and Eaglin to argue that the presumption of indigency is rebutted.
• Seek Costs: Use the rebuttal of indigency to seek reimbursement of costs or the vacation of orders that waived filing fees or record costs.

Citation

Simon Rico, Jr. v. State, No. 06-24-00218-CR (Tex. App.—Texarkana Mar. 18, 2026, no pet.) (mem. op.).

Full Opinion

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Family Law Crossover

This criminal ruling is a strategic weapon for family law litigators dealing with opposing parties who “pauper out” to avoid appellate costs. Under Texas law, parental termination appeals are the primary civil crossover where Anders is frequently invoked. If an opposing parent secures a free record and appointed counsel, but subsequently retains a private “heavy hitter” for the actual briefing or strategy, Rico provides the authority to shut down their indigent status. By demonstrating that the party has “retained counsel,” you can argue that the presumption of indigency is rebutted as a matter of law. This can shift the financial burden of the appellate record back onto the opposing party and remove the specialized procedural protections (like the court’s independent Anders review) that might otherwise keep a weak appeal alive.

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