Summary
holding that orders issued in guardianship proceeding were void because the proposed ward was never served with citation
Summary of this case from In re FairleyOpinion
No. 04-07-00558-CV
Delivered and Filed: January 30, 2008.
This proceeding arises out of Cause No. 2003-PB6-000062-L1, styled In the Matter of the Guardianship of Antonia B. Martinez, pending in the County Court at Law No. 2, Webb County, Texas, the Honorable Jesus Garza presiding.
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
Sitting: Alma L. LÓPEZ, Chief Justice, CATHERINE STONE, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
Hector Rafael Martinez seeks mandamus relief from the trial court's denial of his motion to dismiss the underlying guardianship proceeding because the proposed ward was never served with citation. Although we understand the trial court's frustration in having to dismiss a guardianship proceeding which has been pending for four years and in which numerous orders have been entered, we must conditionally grant the writ.
A judgment or order is void when it is apparent that the court rendering it lacked jurisdiction over the parties. In re Mask, 198 S.W.3d 231, 234 (Tex.App.-San Antonio 2006, orig. proceeding). "The power of a court to appoint a guardian is a special power conferred by statute and compliance with the statute is a condition precedent to the valid exercise of that power and is jurisdictional." Ortiz v. Gutierrez, 792 S.W.2d 118, 119 (Tex.App.-San Antonio 1989, writ dism'd). The trial court's jurisdiction over a proposed guardianship requires service of citation on the proposed adult ward. In re Guardianship of Castanon, No. 10-06-00058-CV, 2007 WL 700987, at *2 n. 2 (Tex.App.-Waco Mar. 7, 2007, no pet.); Tex. Prob. Code Ann. § 633(c)(1) (Vernon Supp. 2007). In this case, it is undisputed that the proposed ward was not served.
The real parties in interest contend that the proposed ward could waive service. Section 633(e) of the Probate Code only permits individuals other than the proposed ward to waive service. Tex. Prob. Code Ann. § 633(e) (Vernon Supp. 2007). A proposed ward alleged to be an incompetent person cannot waive service of citation. In re Guardianship of Castanon, 2007 WL 700987, at *2 n. 2.; In re Mask, 198 S.W.3d at 234 n. 3.
The real parties in interest further contend that the relator accepted service for the proposed ward as attorney in fact under a durable power of attorney. The real parties in interest rely on section 500(6) of the Probate Code which permits an attorney in fact to accept service of process for a principal with respect to claims and litigation. Tex. Prob. Code Ann. § 500(6) (Vernon 2003). Section 633(c)(1), however, is a more specific statute requiring personal service on the proposed adult ward in a guardianship proceeding. See Tex. Govt. Code Ann. § 311.026 (Vernon 2005) (stating specific provision prevails over general). Section 633 contains "uniform, strict procedural safeguards to protect a person's liberty and property interests before a court may take the drastic action of removing her ability to make her own legal decisions." Saldarriaga v. Saldarriaga, 121 S.W.3d 493, 499 (Tex.App.-Austin 2003, no pet.). If a proposed adult ward cannot waive service of citation, we believe it is axiomatic that an attorney in fact under a general power of attorney cannot accept service of citation on behalf of a proposed adult ward. See Ortiz, 792 S.W.2d at 119 (rejecting argument that appearance by ward's attorney satisfied service requirement).
Although we recognize the frustrations presented by this case, see Ortiz, 792 S.W.2d at 120 (Peeples, J., dissenting on rehearing), the basic jurisdictional safeguards of Section 633 of the Probate Code must be followed because the consequences of haphazard determination are too great to risk. In re Guardianship of Erickson, 208 S.W.3d 737, 743 (Tex.App.-Texarkana 2006, no pet.). Because the trial court did not have jurisdiction over the proposed ward, the orders entered in the underlying proceeding are void, and the trial court abused its discretion in refusing to dismiss the underlying proceeding for lack of jurisdiction. We therefore conditionally grant relator's petition for writ of mandamus. The writ shall issue only upon certification to this court that the trial judge has failed to dismiss the underlying proceeding for lack of jurisdiction within twenty days from the date of this opinion.