In re R.H. , 1983 Tex. App. LEXIS 5684 ( 1983 )

GONZALEZ, Justice,

dissenting.

I respectfully dissent. I would deny the State’s motion to dismiss the appeal on both cause numbers 13-83-374-CV and 13-83-386-CV, 664 S.W.2d 418, on the basis that appellants are being represented by a guardian ad litem and, as such, are exempt from filing an appeal bond. I would also hold that the affidavits of inability to file cost bond complied with the notice requirements of TEX.R.CIV.P. 356(c).

Today, three juvenile cases with identical questions were announced by our Court. In No. 13-83-369-CV, In the Matter of A.M., a Child, 664 S.W.2d 414, after the child was committed to the Texas Youth Council, his attorney, who had been appointed by the trial court as the child’s attorney and guardian ad litem, filed an Affidavit of Inability to Give Bond. Neither appellant nor his attorney gave notice to the State of the filing of this affidavit. The State filed separate motions to abate and to dismiss the appeal for lack of compliance with TEX. R.CIV.P. 355(b). There was nothing in the record to indicate nor did the attorney claim that he was attempting to perfect the appeal in his fiduciary capacity as guardian ad litem. Nonetheless, the majority presumed that the attorney was acting as a guardian ad litem in his fiduciary capacity and denied the State’s Motion to Dismiss the appeal.

In No. 13-83-386-CV, In the Matter of R.R., a Child, 664 S.W.2d 418, the child had been committed to the Texas Youth Council. Appellant filed an Affidavit of Inability to Give Cost Bond and, as in the preceding case (No. 13-83-369-CV), neither appellant nor his attorney gave notice to the State of the filing of the affidavit. As in the preceding case (No. 13-83-369-CV), the attorney was appointed by the trial court as attorney and guardian ad litem. The State filed separate motions to abate and to dismiss the appeal. In this case (No. 13-83-386-CV), however, the majority was not willing to make the presumption that the attorney was acting as guardian ad litem in his fiduciary capacity and dismiss the appeal.

In the case before us (No. 13-83-374-CV), the trial court appointed Thomas Schumacher attorney and guardian ad litem of the child and Schumacher has continually represented the child. After the child’s commitment to Texas Youth Council, appellant’s mother signed an Affidavit of Inability to Give Cost Bond and the State was not given notice of the filing of this affidavit in compliance with TEX.R.CIV.P. 356(c).¹ Even though neither appellant nor his mother is schooled in the law, the majority was not willing to make the logical presumption that Schumacher prepared and filed the affidavit and, as such, acted in his fiduciary capacity as the child’s guardian ad litem in perfecting the appeal.

I do not understand the majority’s rationale in making the presumption in one case but not in the other two. If strict compliance with the rules is the reason, why affirm any of these cases when none of them affirmatively show that the attorneys were proceeding as guardian ad litem in their fiduciary capacity?

When people lose substantial freedoms, (i.e. confinement by public authority), these persons, whether they are adults or minors, are entitled to at least one appellate review, and we should liberally construe the rules and make reasonable presumptions to effectuate this end. I think that such an approach is consistent with the admonition of TEX.R.CIV.P. 1 which mandates that the rules shall be liberally construed in order “to obtain a just, fair, equitable and impartial adjudication of the rights of litigants .... ”

In closing, the majority cites with approval the case of Bantuelle v. Benfroe, 620 S.W.2d 635 (Tex.Civ.App.—Dallas 1981, no writ.) It must be noted that Bantuelle is not a juvenile case. Therefore, great care should be used in deciding juvenile cases (personal rights) with rules that generally apply to civil matters (property rights). Therefore, its not practicable to apply TEX. R.CIV.P. 355(b) to juvenile cases. See Brenan v. Court of Civil Appeals, Fourteenth District, 444 S.W.2d 290 (Tex.1969). For these reasons, if the majority is unwilling to presume that the attorneys acted as the child’s guardian ad litem in all three cases, it should grant the State’s motion to abate these appeals and then should allow appellants time to comply with TEX.R.CIV.P. 355(b).

1 . The transcript and statement of facts are before us and they show that appellant’s father is dead, that he and his mother are unemployed, and that his family is receiving food stamps. The record also shows appellant’s mother has a seventh grade education.