in the Guardianship of James E. Fairley

Supreme Court of Texas
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No. 20-0328
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In the Guardianship of James E. Fairley
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On Petition for Review from the
Court of Appeals for the Fourth District of Texas
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Argued September 30, 2021
JUSTICE HUDDLE delivered the opinion of the Court, in which
Chief Justice Hecht, Justice Lehrmann, Justice Boyd, Justice Busby,
Justice Bland, and Justice Young joined.
JUSTICE DEVINE filed a dissenting opinion, in which Justice
Blacklock joined.
After Mauricette Fairley acted as her husband’s guardian for the
last three years of his life, their daughter Juliette Fairley—the
petitioner here—asks us to void all orders entered in the guardianship
proceeding because the proposed ward, her now-deceased father, was
personally served by a private process server. Specifically, Juliette
claims personal service on her father by a private process server was
insufficient to vest jurisdiction in the probate court because, she asserts,
Chapter 1051 of the Estates Code requires a proposed ward in Texas to
be personally served by a sheriff, constable, or other elected officeholder.
We hold the probate court’s orders are not void. While the Estates
Code directs that personal service on a ward be effected in a particular
manner, it does not reflect an intent by the Legislature that the failure
to satisfy each technical requirement—as opposed to the failure to
personally serve the ward altogether—is jurisdictional. Thus, we hold
that a technical defect in personal service on the ward does not deprive
the probate court of subject-matter jurisdiction or personal jurisdiction
over the ward where the ward is personally served and participates in
the proceedings through counsel without objection. We affirm the court
of appeals’ judgment.
I. Background
Juliette seeks a guardianship in Texas, and her application is
dismissed.
This dispute between James Fairley’s wife, Mauricette, and his
daughter, Juliette, has a tortured procedural history and has spanned a
decade. The parties first involved the courts in Bexar County in 2011,
when James was 81 and Juliette alleged that he needed a guardian. The
probate court appointed a guardian ad litem who determined a
guardianship was not necessary, so that proceeding was closed.1 The
following year, Juliette filed another application asking to be appointed
James’s permanent guardian. But Juliette agreed to nonsuit her
application in exchange for certain promises regarding both James’s
care and Juliette’s access to James. The probate court thus entered an
1 None of the pleadings or orders from this initial application are part
of the record on appeal. Mauricette asserts the guardianship was deemed
unnecessary because James was adequately protected through various powers
of attorney James had given to Mauricette.
2
order dismissing Juliette’s second guardianship application in
September 2014.
Juliette moves James to New York, and dueling proceedings are
filed in Texas and New York.
One month after the Bexar County probate court dismissed her
application to serve as James’s permanent guardian, Juliette took her
father from his San Antonio assisted-living facility to New York, where
she lived. Mauricette then requested that a Bexar County probate court
appoint her as James’s temporary guardian under Estates Code Section
1251.001.2 Mauricette alleged that Juliette had unlawfully removed
James from his residence and defrauded him into signing powers of
attorney, which Juliette used to take money from James’s bank account.
Mauricette claimed that Juliette endangered James’s health and safety
and that Mauricette’s appointment as James’s temporary guardian was
necessary for his protection.
James was personally served with this temporary-guardianship
application in New York in November 2014. According to an Affidavit
of Service signed by Sara M. Clark, she served James with the
application and citation at a New York residence “by personally
delivering and leaving the same with JAMES E. FAIRLEY.” The
affidavit describes James’s physical appearance and location within the
residence where he was served. In her affidavit, Clark states that she
is over the age of 18 and is “not a party to this action.”
Section 1251.001 of the Estates Code authorizes courts to appoint a
2
temporary guardian based on substantial evidence that a person may be
incapacitated and probable cause that the immediate appointment of a
guardian is required. TEX. EST. CODE § 1251.001(a).
3
Three days after Mauricette filed her temporary-guardianship
application in Texas, Juliette filed a petition in New York state court
asking that she be appointed James’s guardian. Mauricette opposed,
and the New York court held a hearing on December 1, 2014. After
determining that James was “able and willing to attend,” the New York
court recessed the hearing to allow James to be brought to the
courthouse. The court received evidence from a court-appointed
evaluator who personally observed the “warm and affectionate” reunion
between James and Mauricette at the courthouse. The New York court
appointed Mauricette and the court evaluator “special temporary co-
guardians” of James for the limited purpose of returning James to Texas
so the Bexar County probate court could resolve any further dispute over
the guardianship. The New York court also revoked the powers of
attorney in favor of Juliette and reinstated those in favor of Mauricette.
Mauricette files an application for permanent guardianship of
James.
Back in Texas, on December 8, 2014, Mauricette filed (in the same
probate court and under the same cause number as her application for
temporary guardianship) an application seeking appointment as
James’s permanent guardian.3 Mauricette alleged that James was
totally incapacitated and that Juliette was a threat to his welfare.
3 Section 1101.151 of the Estates Code authorizes courts to appoint a
guardian with full authority over a person who is found to be totally without
capacity to care for himself, manage his property, operate a motor vehicle,
make personal decisions regarding residence, and vote in a public election.
TEX. EST. CODE § 1101.151(a).
4
Shortly after Mauricette filed her application for permanent
guardianship, the probate court held a hearing on Mauricette’s
application for temporary guardianship. James was represented by a
court-appointed attorney ad litem, who had filed an answer on James’s
behalf in this proceeding and had served as James’s attorney ad litem
during the 2012 proceedings in which Juliette sought to be appointed as
James’s guardian. Following an evidentiary hearing, the probate court
appointed Mauricette as James’s temporary guardian pending the
resolution of Juliette’s contest to the application for a permanent
guardianship. See TEX. EST. CODE § 1251.052(b)(1) (authorizing a
temporary guardian to serve until the conclusion of the hearing
contesting an application for guardianship). The probate court also
ordered that James’s attorney ad litem “continue[] . . . to represent the
interests of the Proposed Ward during the pendency of this contest.”
One month later, James was personally served with the
application for permanent guardianship at the San Antonio assisted-
living facility to which he had returned. The return of citation shows
that James was personally served with the application and citation by a
Texas licensed private process server.
The probate court appoints Mauricette as James’s permanent
guardian.
Mauricette served as James’s temporary guardian under the
probate court’s order for most of 2015. Then, following a November 2015
hearing, the probate court appointed Mauricette as James’s permanent
guardian. The probate court found James was “totally incapacitated”
and that it was in his best interest that Mauricette be appointed
5
guardian of his person. The probate court’s order notes that James
“appeared by and through his court appointed attorney ad litem.”
Juliette challenges the appointment order through appeal and
mandamus.
Juliette appealed the probate court’s order appointing Mauricette
as James’s permanent guardian. She argued the probate court abused
its discretion by requiring her to deposit $20,000 as security for the
probable costs of the guardianship proceeding and then dismissing her
cross-application when she failed to do so. The court of appeals affirmed,
and we denied Juliette’s petition for review. In re Guardianship of
Fairley, No. 04-16-00096-CV, 2017 WL 188103 (Tex. App.—San Antonio
Jan. 18, 2017, pet. denied).
Juliette then filed a pro se petition for writ of mandamus in March
2018. She argued that the order requiring her to pay $20,000 as security
and later orders based on her failure to comply were void because they
violated “the Texas Rules of Civil Procedure, the 8th Amendment, the
Due Process and Equal Protection Clause [and] the Texas Estates Code.”
The court of appeals denied Juliette’s mandamus petition. In re
Guardianship of Fairley, No. 04-18-00190-CV, 2018 WL 1610924 (Tex.
App.—San Antonio Apr. 4, 2018, orig. proceeding).
Juliette files a mandamus petition in this Court, asserting the
probate court never acquired jurisdiction over James.
Juliette filed a pro se petition for writ of mandamus in this Court
in June 2018, then retained new counsel. Because some of the
challenged orders were issued by probate court judges who no longer
presided over the case, the Court abated the mandamus proceeding
under Rule of Appellate Procedure 7.2(b) to allow the current judge to
6
reconsider those orders. Juliette then filed in the probate court a motion
to reconsider in which she argued, for the first time, that all the probate
court’s orders after September 2014 were void because the court never
obtained jurisdiction over James. Specifically, Juliette argued that
Mauricette’s applications for guardianship were served on James by
private process servers in violation of Section 1051.103 of the Estates
Code, which Juliette contended required James to be served by “[t]he
sheriff or other officer.” TEX. EST. CODE § 1051.103(a)(1). The probate
court denied Juliette’s motion, finding that “citation was properly served
upon [James] in this cause as required by the TEXAS ESTATES CODE and
the Texas Rules of Civil Procedure [and] that this Court has jurisdiction
over the pending guardianship proceeding in this Cause.”
James dies, and Juliette’s mandamus petition is denied.
After the probate court denied reconsideration, we reinstated the
mandamus proceeding, and Juliette filed a redrawn petition asserting
that every order issued after September 2014—the date her 2012
application was dismissed—was void due to what she contends was
improper service of Mauricette’s guardianship applications. James died
soon thereafter, and Mauricette then argued that his death rendered
moot any dispute over the guardianship orders. We denied the
mandamus petition in January 2019.
Juliette files a wrongful-death suit, which is transferred to the
probate court.
Juliette sued Mauricette and Mauricette’s other daughter (and
James’s step-daughter), Dorothy, in Bexar County district court for
wrongful death and to enjoin embalming or cremation of James’s body.
7
On Mauricette and Dorothy’s motion, the probate court transferred the
wrongful-death suit to itself under Estates Code Section 1022.007(a).4
Mauricette requests dismissal of the wrongful-death suit, and
Juliette files a TCPA motion.
Following the transfer and consolidation of the wrongful-death
suit into the guardianship proceeding, Mauricette and Dorothy sought
dismissal of Juliette’s claims under Rule of Civil Procedure 91a. Juliette
responded with a motion to dismiss under the Texas Citizens
Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011,
in which she asked the probate court to vacate the transfer order and
dismiss Mauricette’s Rule 91a motion. Juliette argued that the probate
court never acquired jurisdiction over the guardianship proceeding. She
also argued that the TCPA applied both to Mauricette’s motion to
transfer and the Rule 91a motion to dismiss and that Mauricette failed
4 Section 1022.007(a) of the Estates Code provides:
A judge of a statutory probate court, on the motion of a party to
the action or of a person interested in the guardianship, may:
(1) transfer to the judge’s court from a district, county, or
statutory court a cause of action that is a matter related to a
guardianship proceeding pending in the statutory probate
court, including a cause of action that is a matter related to
a guardianship proceeding pending in the statutory probate
court and in which the guardian, ward, or proposed ward in
the pending guardianship proceeding is a party; and
(2) consolidate the transferred cause of action with the
guardianship proceeding to which it relates and any other
proceedings in the statutory probate court that are related to
the guardianship proceeding.
TEX. EST. CODE § 1022.007(a).
8
to establish by clear and specific evidence a prima facie case for each
essential element of the claims in those motions.
The probate court denies Juliette’s TCPA motion, and the court
of appeals affirms.
The probate court denied Juliette’s motion to dismiss under the
TCPA, and Juliette appealed. See TEX. CIV. PRAC. & REM. CODE
§ 51.014(a)(12) (allowing an interlocutory appeal from an order denying
a motion to dismiss under the TCPA). The court of appeals affirmed.
604 S.W.3d 450 (Tex. App.—San Antonio 2020). The court first
concluded that service of Mauricette’s application for permanent
guardianship by a private process server complied with Estates Code
Section 1051.103. Id. at 457. The court also concluded that neither
Mauricette’s motion to transfer the wrongful-death suit nor her Rule 91a
motion to dismiss was a “legal action” under the TCPA and, therefore,
the probate court did not err in denying Juliette’s motion to dismiss. Id.
at 457–60.
Juliette petitioned for review in this Court. Here, she does not
challenge the court of appeals’ ruling on her TCPA motion. Rather, she
advances two jurisdictional arguments: either (1) James’s death caused
the probate court to lose jurisdiction and prevented it from transferring
Juliette’s wrongful-death case to itself or (2) the probate court lacked
jurisdiction and all orders in the guardianship proceeding are void
because James was not served by a sheriff, constable, or “other officer,”
which Juliette interprets to exclude private process servers.
II. Jurisdictional Principles
Juliette urges us to hold that all the probate court’s orders issued
after September 2014 are “void for lack of jurisdiction over James
9
Fairley.” Because the parties’ briefing does not consistently distinguish
between them, we begin by setting forth some principles of the different
types of jurisdiction at issue here.
A. Subject-matter jurisdiction
To issue a valid and binding judgment or order, a court must have
both subject-matter jurisdiction over a case and personal jurisdiction
over the party it purports to bind. Luciano v. SprayFoamPolymers.com,
LLC, 625 S.W.3d 1, 7–8 (Tex. 2021). Subject-matter jurisdiction refers
to a court’s statutory or constitutional power to adjudicate a case. Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998). The subject-
matter jurisdiction of Texas courts derives solely from the Texas
Constitution and state statutes. In re Allcat Claims Serv., L.P., 356
S.W.3d 455, 459–60 (Tex. 2011). Because subject-matter jurisdiction
cannot be conferred on a court by consent or waiver, a judgment is never
considered final if the court that issued it lacked subject-matter
jurisdiction. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000).
Partly out of a desire to “reduce the vulnerability of final judgments to
attack,” id. (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 11 cmt. e
(AM. L. INST. 1982)), we are reluctant to conclude that a statutory
requirement affects a court’s subject-matter jurisdiction absent clear
legislative intent to that effect. City of DeSoto v. White, 288 S.W.3d 389,
393 (Tex. 2009).
But courts do lack subject-matter jurisdiction to decide a moot
controversy. State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018).
The prohibition against deciding moot controversies is rooted in the
separation-of-powers doctrine that prohibits courts from rendering
10
advisory opinions. Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83,
86 (Tex. 1999) (citing TEX. CONST. art. II, § 1). A suit may become moot
at any time, including on appeal. Heckman v. Williamson County, 369
S.W.3d 137, 166 (Tex. 2012). A case is moot when a live controversy no
longer exists or the parties have no legally cognizable interest in the
outcome. City of Krum v. Rice, 543 S.W.3d 747, 749 (Tex. 2017).
B. Personal jurisdiction
In contrast to subject-matter jurisdiction, personal jurisdiction
concerns the court’s power to bind a particular person or party to a
judgment. Luciano, 625 S.W.3d at 8. Personal jurisdiction is composed
of two elements: (1) the defendant must be amenable to the jurisdiction
of the court, and (2) the plaintiff must validly invoke that jurisdiction by
valid service of process on the defendant. Kawasaki Steel Corp. v.
Middleton, 699 S.W.2d 199, 200 (Tex. 1985). Establishing personal
jurisdiction over a party requires “citation issued and served in a
manner provided for by law.” In re E.R., 385 S.W.3d 552, 563 (Tex. 2012)
(quoting Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990)). However,
unlike challenges to subject-matter jurisdiction, objections to personal
jurisdiction generally can be waived, and a party may consent to the
personal jurisdiction of a court. In re Fisher, 433 S.W.3d 523, 532 (Tex.
2014).
III. Analysis
Juliette brought an interlocutory appeal from the probate court’s
order denying her TCPA motion, which sought dismissal of Mauricette
and Dorothy’s Rule 91a motion against her wrongful-death suit. She
asserts this order and the court’s previous order transferring that suit
11
to the probate court—as well as all orders issued after September
2014—are void because James was never properly served with a
guardianship application.
The parties’ briefs principally address the questions of whether
service on James complied with Estates Code Chapter 1051 and whether
defective service deprived the probate court of personal jurisdiction over
James. Before considering those questions, however, we first address
two threshold issues relating to subject-matter jurisdiction: Mauricette’s
claim that James’s death rendered this appeal moot; and Juliette’s
related claim that James’s death terminated the guardianship and the
probate court’s subject-matter jurisdiction, such that any orders entered
after his death are void.
A. Did James’s death moot the appeal?
Mauricette argues James’s death in December 2018 mooted
Juliette’s appeal. We disagree. As noted, a case is moot when a live
controversy no longer exists. City of Krum, 543 S.W.3d at 749. Juliette
contends that the probate court lacked jurisdiction to transfer to itself
her wrongful-death suit. If Juliette is correct, the result would be a
reinstatement of Juliette’s wrongful-death suit in the district court.
Juliette’s appeal thus presents a live controversy notwithstanding
James’s death: whether the district court is the proper court to
adjudicate her wrongful-death suit. Because this live controversy
remains, we reject Mauricette’s argument that James’s death rendered
this appeal moot. See id.
12
B. Did James’s death end the guardianship proceeding and
thereby deprive the probate court of subject-matter
jurisdiction?
Juliette advances a different theory of how James’s death
deprived the probate court of subject-matter jurisdiction to transfer the
wrongful-death suit to itself. She argues that James’s death terminated
the guardianship over him and, therefore, there was no longer a
“guardianship proceeding pending” into which the probate court could
transfer her wrongful-death suit. See TEX. EST. CODE § 1022.007(a)
(authorizing statutory probate court to transfer to itself claims related
to “a guardianship proceeding pending in” that court). We disagree.
To initiate a proceeding to appoint a guardian, a person must file
a written application in the proper court. TEX. EST. CODE § 1101.001(a).
Texas law permits the creation of a guardianship of a person or an
estate, or both. See id. §§ 1002.012(b) (defining “guardian” to include
both the guardian of an incapacitated person and the guardian of an
incapacitated person’s estate), 1101.001(b)(3) (requiring the application
to state whether it is for guardianship of the person or estate, or both).
It is undisputed that the applications in this case sought only
guardianship of a person—James—and not guardianship of James’s
estate.
The Legislature created the statutory probate court in Bexar
County from which this appeal arises. See TEX. GOV’T CODE
§ 25.0171(c). The Legislature gives statutory probate courts original
jurisdiction over guardianship proceedings. TEX. EST. CODE
§ 1022.002(c); see also TEX. CONST. art. V, § 8 (“District Court
jurisdiction consists of exclusive, appellate, and original jurisdiction of
13
all actions, proceedings, and remedies, except in cases where exclusive,
appellate, or original jurisdiction may be conferred by this Constitution
or other law on some other court, tribunal, or administrative body.”).
The Estates Code defines a “guardianship proceeding” as “a matter or
proceeding related to a guardianship or any other matter covered by this
title,” including “the appointment of a guardian of a minor or other
incapacitated person” and “an application, petition, or motion regarding
guardianship or a substitute for guardianship under this title.” TEX.
EST. CODE § 1002.015.
Section 1022.002 of the Estates Code expressly states when a
guardianship proceeding begins and ends. A guardianship proceeding
begins with “the filing of the application for the appointment of a
guardian of the estate or person, or both.” Id. § 1022.002(d). It ends
when “the guardianship is settled and closed under this chapter.” Id.
Accordingly, the probate court acquired subject-matter jurisdiction over
this guardianship proceeding when Mauricette filed her first application
for guardianship, seeking a temporary guardianship. See id.
§ 1002.012(a) (defining “guardian” to include a person appointed as a
temporary guardian).
A ward’s death will necessarily bring the guardianship of the
person to an end. See Zipp v. Wuemling, 218 S.W.3d 71, 74 (Tex. 2007)
(“It is axiomatic that, with the death of the ward, the guardianship of
the person must end.”). But the guardianship proceeding does not
automatically terminate on the ward’s death. Instead, the probate
court’s jurisdiction continues until the court settles and closes the
guardianship and discharges the guardian. See Easterline v. Bean, 49
14
S.W.2d 427, 428 (Tex. 1932) (stating that a ward’s death causes the
probate court to lose jurisdiction over the guardianship matter “save and
except that the guardianship shall be immediately settled and closed,
and the guardian discharged”). Consistent with this, the Estates Code
expressly authorizes a guardian to take certain actions on behalf of a
deceased ward before the closing of the guardianship. See TEX. EST.
CODE §§ 1204.051 (authorizing a guardian to make funeral
arrangements “[b]efore a guardianship of the person . . . is closed on the
ward’s death”), 1204.108(a) (requiring a guardian of the person to
deliver a deceased ward’s property to the personal representative of the
ward’s estate or other person entitled to the property).
Here, it is undisputed that the probate court had not yet settled
and closed the guardianship proceeding at the time it transferred
Juliette’s wrongful-death suit to itself. See TEX. EST. CODE § 1204.001
(establishing the procedures for settling and closing a guardianship).
Thus, contrary to Juliette’s argument, there remained a “guardianship
proceeding pending” into which the probate court could have transferred
the wrongful-death suit. Aside from claiming the guardianship
proceeding automatically terminated on James’s death, Juliette does not
challenge the probate court’s authority under the Estates Code to
transfer the wrongful-death suit to itself.5 We accordingly conclude that
5 Of course, a probate court deciding whether to transfer a related cause
of action under Section 1022.007 should take into account the death of the ward
and the forthcoming closure of the guardianship proceeding, as well as whether
there is a pending or imminent probate proceeding into which the cause of
action should be transferred instead.
15
James’s death did not deprive the probate court of subject-matter
jurisdiction to enter the transfer order.
C. Service of citation
Juliette contends the probate court never acquired personal
jurisdiction over James because service on James did not comply with
Chapter 1051 of the Estates Code. Therefore, according to Juliette,
every order issued by the probate court after September 2014 is void.
We address whether service of the applications for guardianship
complied with the requirements in the Estates Code, then turn to
Juliette’s contention that any defect in service would deprive the probate
court of personal jurisdiction and render its orders void.
1. Was James served in accordance with the Estates
Code?
Chapter 1051 of the Estates Code governs the issuance of notice
and service of citation in guardianship proceedings. Two sections within
Chapter 1051 are particularly important here. Section 1051.103, titled
“Service of Citation for Application for Guardianship,” identifies five
categories of persons who must be personally served with the application
and citation. TEX. EST. CODE § 1051.103(a)(1)–(5). As relevant here,
that section provides:
(a) The sheriff or other officer shall personally serve
citation to appear and answer an application for
guardianship on:
(1) a proposed ward who is 12 years of age or
older . . . .
Id. § 1051.103(a)(1).
16
Section 1051.051, titled “Personal Service,” addresses the manner
in which personal service of citation or notice is effected in a variety of
different circumstances:
(a) Except as otherwise provided by Subsection (b), if
personal service of citation or notice is required, the
citation or notice must be served on the attorney of
record for the person to be cited or notified.
Notwithstanding the requirement of personal
service, service may be made on that attorney by any
method specified by Section 1051.055 for service on
an attorney of record.
(b) If the person to be cited or notified does not have an
attorney of record in the proceeding, or if an attempt
to serve the person’s attorney is unsuccessful:
(1) the sheriff or constable shall serve the citation
or notice by delivering a copy of the citation or
notice to the person to be cited or notified, in
person, if the person to whom the citation or
notice is directed is in this state; or
(2) a disinterested person competent to make an
oath that the citation or notice was served
may serve the citation or notice, if the person
to be cited or notified is absent from or is not
a resident of this state.
Id. § 1051.051(a), (b).
It is undisputed that Section 1051.103(a)(1) required personal
service of citation for an application for guardianship on James because
he was a proposed ward older than twelve. It is also undisputed that
James was personally served with both the application for temporary
guardianship and the application for permanent guardianship.
However, the parties part ways on the question of who was required to
serve the citation and application. To answer that question, we must
17
first determine whether Section 1051.103 or Section 1051.051 controls
this question.
a. Which statute dictates who must serve the
citation?
Section 1051.103(a) states that “[t]he sheriff or other officer” shall
personally serve citation of an application for guardianship on those for
whom personal service is required, including a proposed ward who is
twelve or older. Throughout the proceedings below, and in their briefing
to this Court, both parties appear to assume this section governs the
question of who should serve the application and citation. The parties’
briefing thus focuses on whether “other officer” as used in Section
1051.103(a) includes a private process server. The court of appeals
rejected Juliette’s contention that “officer” as used in Section
1051.103(a) is limited to a sheriff, constable, or other elected official and
concluded that “James was served in conformity with section
1051.103(a).” 604 S.W.3d at 457.
Amicus Texas College of Probate Judges (TCPJ) contends that the
court of appeals should have looked instead to Section 1051.051.
According to TCPJ, Section 1051.051 is the more specific statute with
respect to who is authorized to serve citation in a guardianship
proceeding. Juliette appeared to adopt this position at oral argument.
We agree that Section 1051.051 is the controlling statute here.
Section 1051.103(a) identifies those individuals who must receive
personal service of an application for guardianship. Section 1051.051
specifies who may serve when personal service is required and how
service must be effected.
18
Section 1051.051 sets forth three different groups of persons who
may serve, depending on whether the person to be served is represented
by counsel and where the person is located. Under subsection (a), if the
person to be served has an attorney of record in the proceeding, the
citation must be served on that attorney. TEX. EST. CODE § 1051.051(a).
Section 1051.051(a) then refers to Section 1051.055 for the method of
service on an attorney. Id. (“Notwithstanding the requirement of
personal service, service may be made on that attorney by any method
specified by Section 1051.055 for service on an attorney of record.”).
Section 1051.055(c) provides that a citation may be served on an
attorney by (1) another party, (2) another party’s attorney, (3) a sheriff
or constable, or (4) any person competent to testify. Id. § 1051.055(c).
Subsection (b) applies if the person to be served does not have an
attorney of record or if service on the attorney is unsuccessful. Id.
§ 1051.051(b). In that case, the method of service is determined by the
location of the person who must be served. If that person is in Texas,
subsection (b)(1) provides that “the sheriff or constable shall serve the
citation” by delivering a copy in person. Id. § 1051.051(b)(1). If the
person to be served is either absent from or not a resident of Texas,
however, subsection (b)(2) provides that citation may be served by “a
disinterested person competent to make an oath that the citation . . .
was served.” Id. § 1051.051(b)(2).
Nothing in the text of Section 1051.103(a) suggests that the
reference to service by a sheriff or “other officer” (an otherwise undefined
term) was itself intended to limit those who could serve citation for
guardianship applications. We instead read “other officer” as a
19
reference to those persons who are authorized to serve citation
elsewhere in the Estates Code. As noted above, depending on the
circumstances, Section 1051.051 expressly allows for service of citation
to be performed by a sheriff or constable, a disinterested person
competent to make an oath, another party, another party’s attorney, or
any person competent to testify. Accordingly, we conclude that, for those
persons entitled to personal service of an application for guardianship
under Section 1051.103(a), the method of service (including who must
serve the application and citation) must comply with Section 1051.051.
b. Did service of the guardianship applications
on James comply with Estates Code Section
1051.051?
Having concluded that Section 1051.051 governs who must serve
a citation and application for guardianship, we turn to whether service
of each of the two applications for guardianship in this case—one served
in New York, one in Texas—satisfied its requirements.
Focusing on Section 1051.103(a), the court of appeals concluded
that a private process server was an “other officer” authorized to serve
an application for guardianship because a 1994 Bexar County probate
court administrative order permitted licensed private process servers to
serve process in the probate courts. 604 S.W.3d at 457. The court also
relied on Rule of Civil Procedure 103, the general rule governing service
of process, which authorizes service by “any person authorized by law or
by written order of the court.” TEX. R. CIV. P. 103. But neither an order
from the Bexar County probate courts nor a rule of procedure can trump
a statute governing service of process in guardianship proceedings. See
Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000) (absent certain
20
circumstances not present here, “when a rule of procedure conflicts with
a statute, the statute prevails”). The Estates Code establishes a detailed
framework controlling service in these proceedings, and Section
1051.051 specifies who is authorized to serve when personal service is
required. These statutory requirements cannot be overridden by a
conflicting court order or by a rule of procedure of general application.
i. Service of application for temporary
guardianship
Mauricette filed her application for appointment as James’s
temporary guardian in Bexar County in October 2014, shortly after
Juliette took James to New York. James was personally served with
this application and citation in New York by Sara Clark, a private
process server. Juliette contends that Estates Code Section 1051.103(a)
required service by a “sheriff or other officer” and contends that Clark
was neither. But, as discussed above, Section 1051.103(a) does not
prescribe who may effect service. Section 1051.051 does. Because
James was absent from Texas, Section 1051.051(b)(2) authorizes
personal service by “a disinterested person competent to make an oath
that the citation . . . was served.” TEX. EST. CODE § 1051.051(b)(2). We
thus reject Juliette’s argument that service of the temporary-
guardianship application on James was defective because he was not
served by a sheriff, constable, or other elected official.
Juliette also argues that service of the application for temporary
guardianship did not comply with Section 1051.051(b)(2) because the
Affidavit of Service failed to establish that Clark was “disinterested.” A
“disinterested” person is one who is “[f]ree from bias, prejudice, or
partiality” and lacks “a pecuniary interest in the matter at hand.”
21
Disinterested, BLACK’S LAW DICTIONARY (11th ed. 2019). In her Affidavit
of Service, Clark states only that she is “not a party to this action.” This
statement alone does not establish that Clark was “disinterested.” See
Indus. Models, Inc. v. SNF, Inc., No. 02-13-00281-CV, 2014 WL 3696104,
at *5 (Tex. App.—Fort Worth July 24, 2014, no pet.) (concluding that an
affidavit stating that the person serving citation was “not a party” is
insufficient to establish that person was “disinterested”); see also TEX.
R. CIV. P. 103 (prohibiting service by someone who is either “a party to”
a suit or “interested in the outcome” of a suit). Accordingly, we conclude
the record does not establish that James was served by a disinterested
person, as required by Section 1051.051(b)(2).6
ii. Service of application for permanent
guardianship
Mauricette filed her application for appointment as James’s
permanent guardian in December 2014, by which time James had
returned to Texas. James was personally served by a private process
server at the assisted-living facility in San Antonio, and, because he was
served in Texas, Section 1051.051(b)(1) applies. Under that provision,
personal service must be by “sheriff or constable”—a private process
6Juliette also asserts that the Affidavit of Service failed to comply with
Section 1051.151, which requires the return of a person serving citation to be
“endorsed on or attached to the citation.” TEX. EST. CODE § 1051.151(1). For
the reasons we discuss below, this additional alleged technical defect in the
method of service does not affect our ultimate disposition. Therefore, we
assume without deciding that the Affidavit of Service was not endorsed on or
attached to the citation, as required by Section 1051.151(1).
22
server is insufficient.7 Service of this application thus failed to satisfy
Section 1051.051(b)(1)’s technical requirements.
2. Did the technical defects in service deprive the
probate court of personal jurisdiction over James or
void its orders?
Juliette conceded during oral argument that her complaints
about service concern personal jurisdiction, not subject-matter
jurisdiction. As we explain above, the probate court acquired subject-
matter jurisdiction over this guardianship proceeding when Mauricette
filed her initial application. See TEX. EST. CODE § 1022.002(d). And
Juliette does not contend the probate court lacked personal jurisdiction
over her—her complaint is that the court lacked personal jurisdiction
over James. Nevertheless, Juliette asks us to hold that technical defects
in personal service on the now-deceased James voided all orders in the
guardianship proceeding and deprived the probate court of jurisdiction
to enter any orders, including the order transferring her wrongful-death
suit to the probate court. We disagree because James never complained
about these defects at a time at which they could have been corrected.
7 By the time James was served with the permanent-guardianship
application, his court-appointed attorney ad litem had entered an appearance
and filed an answer on James’s behalf. Because James had an attorney of
record, Section 1051.051(a) authorized service on James through that attorney
by any method specified by Section 1051.055. TEX. EST. CODE § 1051.051(a).
Although the record shows that a copy of the application for permanent
guardianship was served on James’s attorney ad litem, the record does not
reflect whether this attorney was also served with citation, as the statute
requires. See id. § 1051.103(a) (requiring James to be personally served with
“citation to appear and answer an application for guardianship”). And
Mauricette does not argue that service was proper through James’s attorney
ad litem. Therefore, we assume that James was never properly served through
his attorney under Section 1051.051(a).
23
He instead entered a general appearance in the guardianship
proceeding through his attorney ad litem and thereby consented to the
personal jurisdiction of the probate court.
Unlike with subject-matter jurisdiction, parties can consent to the
court’s personal jurisdiction over them. In re Fisher, 433 S.W.3d at 532.
One common way to consent to a court’s jurisdiction is by entering a
general appearance in the proceeding. A party may enter an appearance
in person or by attorney. TEX. R. CIV. P. 120. Such an appearance “shall
have the same force and effect as if the citation had been duly issued
and served as provided by law.” Id. Thus, a party’s appearance in a
lawsuit cures any defect in the method of serving that party. Baker v.
Monsanto Co., 111 S.W.3d 158, 161 (Tex. 2003).
The mere presence of a party or that party’s attorney in court does
not constitute an appearance. See Seals v. Upper Trinity Reg’l Water
Dist., 145 S.W.3d 291, 297 (Tex. App.—Fort Worth 2004, pet. dism’d by
agr.) (“[A] party who is a silent figurehead in the courtroom, observing
the proceedings without participating, has not [made a general
appearance].”). Instead, a party enters a general appearance when it
(1) invokes the judgment of the court on any question other than the
court’s jurisdiction, (2) recognizes by its acts that an action is properly
pending, or (3) seeks affirmative action from the court. Exito Elecs. Co.
v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004). Our courts routinely hold that
a court-appointed attorney who files an answer or seeks affirmative
24
action from the court invokes the court’s jurisdiction and thus enters a
general appearance on behalf of the client.8
Here, the probate court appointed an attorney ad litem to
represent James’s interests in the guardianship proceeding. See TEX.
EST. CODE § 1054.001 (requiring court to appoint an attorney ad litem
for the proposed ward in a proceeding for the appointment of a
8 See In re M.D.M., 579 S.W.3d 744, 760–61 (Tex. App.—Houston [1st
Dist.] 2019, no pet.) (attorney ad litem’s participation in final parental-
termination hearing on behalf of the father through questioning of witnesses
and argument constituted a general appearance by the father that waived
complaints regarding service); Roberts v. Fargason, No. 13-17-00395-CV, 2019
WL 1716803, at *2 (Tex. App.—Corpus Christi–Edinburg Apr. 18, 2019, no
pet.) (defendant made a general appearance and waived alleged defects in
service when attorney ad litem appointed to represent him while in military
service filed an answer on his behalf); In re A.L.H., 515 S.W.3d 60, 87 (Tex.
App.—Houston [14th Dist.] 2017, pet. denied) (father in parental-termination
case made a general appearance and waived any complaints about service
because appointed attorney ad litem filed an answer on father’s behalf); In re
D.M.B., 467 S.W.3d 100, 103–04 (Tex. App.—San Antonio 2015, pet. denied)
(attorney ad litem’s objections to evidence and objection to entry of a temporary
restraining order on behalf of the father in a parental-termination hearing
constituted a general appearance by the father that waived his service
complaints); In re P.Y.M., No. 04-13-00024-CV, 2013 WL 4009748, at *2 (Tex.
App.—San Antonio Aug. 7, 2013, pet. denied) (father in parental-termination
case made a general appearance and waived any complaints about service
when attorney ad litem questioned a witness and presented argument on
behalf of the father at the termination hearing); Gamez v. Tex. Dep’t of Fam. &
Protective Servs., No. 03-09-00190-CV, 2009 WL 4456150, at *5 (Tex. App.—
Austin Dec. 1, 2009, no pet.) (attorney ad litem’s answer and attendance at
hearings and trial on behalf of mother in parental-termination case was a
general appearance that waived complaints about service); Phillips v. Dall.
Cnty. Child Protective Servs. Unit, 197 S.W.3d 862, 865 (Tex. App.—Dallas
2006, pet. denied) (filing of an answer on mother’s behalf by attorney ad litem
in parental-termination case was a general appearance that waived any
complaints about defects in service); In re $475,001.16, 96 S.W.3d 625, 628–29
(Tex. App.—Houston [1st Dist.] 2002, no pet.) (party entered a general
appearance in forfeiture proceeding and waived challenges to defects in service
because court-appointed attorney ad litem filed an answer on his behalf).
25
guardian); see also id. § 1002.002 (defining “attorney ad litem” as an
attorney appointed by the court “to represent and advocate on behalf of
a proposed ward . . . in a guardianship proceeding”). James’s appointed
attorney filed an answer on James’s behalf. In advance of the hearing
on Mauricette’s application for a temporary guardianship, he filed a
request that James not be required to appear at the hearing. At the
hearing on the temporary guardianship, the attorney ad litem
represented to the court that he had spoken with James, and he
conveyed James’s views regarding the guardianship to the court. He
also appeared at the permanent-guardianship hearing and approved
with his signature the 2015 order appointing Mauricette as James’s
permanent guardian.
An attorney ad litem is required by statute to review the
application and relevant supporting materials; to interview the
proposed ward before the appointment hearing; and to discuss with the
ward, to the extent possible, the details of the case, the ward’s legal
options, and the ward’s opinions regarding the necessity and scope of a
guardianship. Id. § 1054.004. There is nothing in the record to suggest
that this attorney’s representation of James was deficient in any way.
And at no time during the guardianship proceeding did James’s attorney
ad litem (or anyone else) assert any complaints about the manner in
which James was served.
We conclude that James made a general appearance in the
guardianship proceeding through the affirmative actions of his attorney
ad litem. Accordingly, he consented to the probate court’s personal
26
jurisdiction over him, waiving any technical defects regarding service.
See Baker, 111 S.W.3d at 161.9
Amicus TCPJ correctly notes that the Estates Code provides that
an attorney ad litem “may not waive personal service of citation.” TEX.
EST. CODE § 1051.055(e). But no one claims that occurred here—indeed,
it is undisputed that James was personally served with both
applications for guardianship. While Section 1051.055(e) prohibits
waiving service altogether, we do not read it to prohibit a general
appearance and waiver of technical service defects when the proposed
9 Contrary to our dissenting colleagues’ characterization, we do not
suggest that technical defects in service “don’t matter” and are “perfectly fine.”
Post at ___ (Devine, J., dissenting). And we emphatically do not suggest that
courts are “free to ignore statutory requirements.” Id. at __. Indeed, if anyone
had alerted the probate court to a defect in service in a timely manner, the
probate court could have and no doubt would have remedied the defect so as to
satisfy the statute’s requirements in every detail. But, alas, ours is an
imperfect world—one in which no one brought the defect to the probate court’s
attention in time for it to be cured. The real question is thus not whether courts
should ignore statutory requirements—obviously they should not and do not—
but, rather, whether the statutory text expresses the Legislature’s intent that
anything short of strict compliance requires that the entire guardianship be
voided when the attorney ad litem entered a general appearance for the ward,
affirmatively invoked the probate court’s jurisdiction, and ably represented the
ward. The text of the Estates Code reveals no such intent, and the dissent’s
professed desire to read such a requirement into the statute is undermined by
the Legislature’s decision to allow service on a ward to be accomplished by
serving his attorney of record. See TEX. EST. CODE §§ 1051.051(a), 1051.055(c)
(providing that service on a ward’s attorney may be delivered by a variety of
persons, including another party, the attorney of record for another party, a
sheriff or constable, or another person competent to testify). Because the
Estates Code contemplates that personal jurisdiction attaches in a variety of
ways that do not involve physical service on the ward by anyone, we cannot, in
the absence of text signaling such an intent, conclude that the Legislature
intended to attach jurisdictional significance to whether “the right person”
serves a ward.
27
ward has been served and has opted through his attorney to submit to
the court’s jurisdiction. See Ex parte Rodriguez, 466 S.W.3d 846, 851
(Tex. Crim. App. 2015) (concluding that Family Code statute prohibiting
juvenile from waiving “service of [the] summons” does not prohibit the
waiver of defects in the manner of service).
This reading coheres with our rules, which distinguish between a
defendant’s appearance (which has “the same force and effect as if the
citation had been duly issued and served as provided by law,” TEX. R.
CIV. P. 120) and a waiver of service. Rule 124 provides that a judgment
cannot be rendered unless a defendant is served, or upon “acceptance or
waiver of process, or upon an appearance by the defendant.” TEX. R. CIV.
P. 124. In short, although James’s appearance in the proceeding
through his attorney ad litem waived any complaints about the method
of personal service, it was not a waiver of personal service of citation on
James.
Juliette urges us to adopt a rule requiring strict compliance with
the statutory requirements for service of a guardianship application,
similar to the rule we apply when reviewing a default judgment. See
WWLC Inv., L.P. v. Miraki, 624 S.W.3d 796, 799 (Tex. 2021) (“For well
over a century, this court has required that strict compliance with the
rules for service of citation affirmatively appear on the record in order
for a default judgment to withstand direct attack.” (quoting Primate
Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994))). But even in
the context of default judgments (which this case is not), that rule does
not apply in every case. In PNS Stores, Inc. v. Rivera, 379 S.W.3d 267(Tex. 2012), we held that strict compliance with service requirements is
28
not required when a defendant seeks to void a default judgment through
a collateral attack. In that case, the defendant argued that the
plaintiff’s failure to comply with all the requirements for service
rendered the judgment void and, therefore, the default judgment could
be set aside by a collateral attack. We disagreed, and we held that,
because the defendant failed to establish either an absence of service or
defects in service that deprived the defendant of a meaningful
opportunity to appear and answer the lawsuit, the judgment was not
void. Id. at 275.
Our holding in PNS Stores was designed to strike “a reasonable
balance between the need for finality of judgments and the requirement
that the power underlying judicial authority must be based on a
litigant’s fair opportunity to be heard.” Id. at 274 (footnote omitted).
Our decision here strikes the same balance. Even though the
guardianship proceeding remained pending, the probate court’s order
appointing Mauricette as James’s permanent guardian is “final” and is
treated as such for purposes of appeal. See In re Guardianship of Jones,
629 S.W.3d 921, 925 (Tex. 2021) (“[A]n order [in a guardianship
proceeding] disposing of all issues and all parties ‘in the phase of the
proceeding for which it was brought’ is final and appealable even when
the proceeding remains pending as to other issues.” (quoting Crowson v.
Wakeham, 897 S.W.2d 779, 783 (Tex. 1995))). Because James was
personally served, and because Juliette does not allege any defects in
service that rise to the level of a due process violation, none of the orders
in the guardianship proceeding are void.
29
The cases cited to us in which courts have held a guardianship
order void are consistent with our holding here because they involve
situations where the proposed ward was never personally served. See
Gauci v. Gauci, 471 S.W.3d 899, 902 (Tex. App.—Houston [1st Dist.]
2015, no pet.) (concluding that a guardianship order was void because
the proposed ward was not personally served with citation and therefore
the probate court lacked personal jurisdiction over the ward); In re
Martinez, No. 04-07-00558-CV, 2008 WL 227987, at *2 (Tex. App.—San
Antonio Jan. 30, 2008, orig. proceeding) (holding that orders issued in
guardianship proceeding were void because the proposed ward was
never served with citation); In re Guardianship of B.A.G., 794 S.W.2d
510, 513 (Tex. App.—Corpus Christi–Edinburg 1990, no writ) (holding
that all of the trial court’s actions regarding a guardianship were void
because the proposed ward was never personally served).
Juliette relies on dicta in several court of appeals opinions to
support her contention that a probate court acquires jurisdiction of a
guardianship proceeding only following “proper service” on the ward.
See In re Guardianship of Phillips, No. 01-14-01004-CV, 2016 WL
3391249, at *3 (Tex. App.—Houston [1st Dist.] June 16, 2016, no pet.)
(“Service of citation on a proposed ward is jurisdictional and a court
order appointing a guardian without proper service on the ward is
void.”); In re Guardianship of V.A., 390 S.W.3d 414, 421 (Tex. App.—San
Antonio 2012, pet. denied) (“We do not dispute the contention that a
probate court lacks jurisdiction over a guardianship proceeding where
the proposed ward has not been properly served.”); Whatley v. Walker,
302 S.W.3d 314, 321 (Tex. App.—Houston [14th Dist.] 2009, pet. denied)
30
(“Failure to serve the proposed ward with citation is jurisdictional, and
a court’s subsequent order appointing a guardian without proper service
on the ward is void.”); In re Guardianship of Erickson, 208 S.W.3d 737,
740 (Tex. App.—Texarkana 2006, no pet.) (“[O]nly through compliance
with Section 633 of the Texas Probate Code [the precursor to Estates
Code Section 1051.103] is the trial court’s jurisdiction invoked.”). But
none of these cases involved a challenge to the method by which the
proposed ward was served. In Phillips, V.A., and Whatley, the primary
complaint was that the applicant failed to comply with a requirement to
provide notice to certain third parties, including the ward’s relatives.
See Phillips, 2016 WL 3391249, at *4–5; V.A., 390 S.W.3d at 418–19;
Whatley, 302 S.W.3d at 322. None of the courts in those cases voided
any orders for lack of jurisdiction, nor did they conclude that a defect in
service deprived the probate court of jurisdiction.10
* * *
10 In Erickson, the court of appeals held that the probate court lacked
jurisdiction not because of a service defect, but because the court failed to wait
the required ten days after service before acting on the application for
guardianship. 208 S.W.3d at 740–41; see TEX. EST. CODE § 1051.106 (“The
court may not act on an application for the creation of a guardianship . . .
earlier than the Monday following the expiration of the 10-day period
beginning on the date service of notice and citation has been made . . . .”).
Thus, Erickson does not support Juliette’s argument that a defect in the
method of service on a proposed ward automatically deprives the probate court
of jurisdiction over the guardianship proceeding. Erickson is also inconsistent
with the presumption that failure to comply with a mandatory statutory
requirement is not jurisdictional unless there is clear legislative intent to the
contrary. See, e.g., City of DeSoto, 288 S.W.3d at 394; see also In re
Guardianship of Jordan, 348 S.W.3d 401, 408–10 (Tex. App.—Beaumont 2011,
no pet.) (calling into question the court’s holding in Erickson based on City of
DeSoto and other decisions from this Court).
31
We conclude that the probate court obtained subject-matter
jurisdiction over this guardianship proceeding when Mauricette filed
her application for temporary guardianship and retained subject-matter
jurisdiction after James’s death. We also conclude the probate court
properly exercised personal jurisdiction over James and the technical
defects in service did not void the probate court’s orders because it is
undisputed that James was personally served with the applications for
guardianship, James entered a general appearance and participated in
the proceedings through his attorney ad litem, and Juliette failed to
establish that any deficiency with respect to the method of personal
service rose to the level of a violation of due process. We therefore affirm
the court of appeals’ judgment.
Rebeca A. Huddle
Justice
OPINION DELIVERED: March 4, 2022
32