Amicus Attorneys in Texas | Guardian | Attorney ad Litem

Mandamus granted in case involving dispute over who should represent child
(whose mother was killed) in wrongful death action
In Re Collins (Tex. App.- Houston [14th Dist.] Dec. 17, 2007)(Guzman)(amicus attorney,
representation of minor in wrongful death action involving mother)
MOTION OR WRIT GRANTED: Opinion by Justice Guzman
Before Justices Brock Yates, Fowler and Guzman
14-07-00624-CV In Re: Russell Craig Collins
Appeal from 387th District Court of Fort Bend County (Judge Robert J. Kern)

Court of Appeals Denies Additional fees in second appeal
Melasky as GAL v. City of Houston (Tex.App.- Houston [14th Dist.] Aug. 16, 2007)(Yates)
(difference between guardian ad litem and attorney ad-litem fees, law of the case, minors, remand,
scope of mandate)
AFFIRMED: Opinion by Justice Brock Yates
(Before Justices Brock Yates, Edelman and Seymore)
14-06-00386-CV David Melasky as Guadian Ad Litem v. City of Houston
Appeal from 80th District Court of Harris County (no judge shown on docket sheet)

Houston Court of Appeals Says Amicus Attorney Has No Role in Appeal
Refuses to consider Amicus Attorney's Brief.
O'Connor v. O'Connor (Tex.App.- Houston [1st Dist.] May 17, 2007)(Nuchia)
(SAPCR , family law access denial injunction psycho parent, child's best interest, amicus attorney)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Hanks and Bland
01-06-00445-CV Jamie R. O'Connor v. Daniel K. O'Connor
Appeal from 310th District Court of Harris County (Judge Lisa Millard)
Justice Nuchia holds that the amicus attorney, appointed by the family court judge to assist in the
determination of the children's best interest, had no role to play in the court of appeals because the
amicus did not represent a party. The panel thus declined to consider the brief filed by the amicus
attorney. The court of appeals affirms the trial court's judgment awarding sole managing
conservatorship and a larger share of the community property to the husband and barring the
mother from contact with the chidren. (see below).

Ajudani v. Walker (Tex.App.- Houston [1st Dist.] May 24, 2007)(Keyes)(ad litem fees)
[probate law, attorney ad litem fee appeal]
MODIFY TC JUDGMENT AND AFFIRM TC JUDGMENT AS MODIFIED: Opinion by Justice Keyes
Before Justices Nuchia, Keyes and Higley
01-06-00089-CV        Shirin Ajudani and Rosemary Shookoufandeh, Lana Dieringer v. Jimmy Walker
Appeal from Probate Court No 1 of Harris County

In Re Collins (Tex. App.- Houston [14th Dist.] Dec. 17, 2007)(Guzman)(amicus attorney,
representation of minor in wrongful death action involving mother)
In this original proceeding,[1] relator, Russell Craig Collins, seeks a writ of mandamus compelling
respondent, the Honorable Robert J. Kern, to strike: (1) that portion of respondent=s temporary
orders requiring Collins to cease prosecuting his minor daughter=s wrongful death claims as her next
friend, and (2) that portion of respondent=s order dated May 30, 2007, in which respondent
appointed an amicus attorney to act as next friend to Collins=s minor daughter. We conditionally
grant the writ.

I. Factual and Procedural Background

Collins is the father of S.E.E., although he was never married to the child=s mother.   On May 23, 2000, the 387th
District Court of Fort Bend County[2] issued an Agreed Order appointing S.E.E.=s parents as joint managing
conservators, but granting S.E.E.=s mother the exclusive right to determine S.E.E.=s primary residence.[3] Moreover,
A[t]he conservator designated with the primary physical residence of the child@ was given the exclusive Apower to
represent the child in legal action and to make other decisions of substantial legal significance concerning the child
including the right to establish the primary residence of the child . . . .@[4] S.E.E. resided with her mother.

On March 28, 2007, S.E.E.=s mother was killed in a fire in a Houston office building. Within two days, Collins sought
legal counsel to pursue S.E.E.=s claims arising from her mother=s death.   Collins consulted attorneys Tom Rowatt
and James Doyle and retained the law firm of Williams Kherkher, L.L.P. to represent S.E.E.[5]   In his asserted
capacity as S.E.E.=s next friend, Collins intervened in a suit filed in the 133rd District Court of Harris County by
unrelated plaintiffs seeking damages arising from the same fire in which S.E.E.=s mother was killed.[6] But two
days before Collins intervened in that suit, S.E.E.=s maternal grandfather, who also purported to act as S.E.E.=s next
friend, filed an original wrongful death suit in the 152nd District Court of Harris County.[7] Both maternal
grandparents (the AGrandparents@) also asserted their own claims for damages.

On April 23, 2007, the Grandparents obtained an ex parte temporary restraining order in the 387th District Court of
Fort Bend County. The trial court deleted the Grandparents= proposed provision that would have restrained Collins
from Afiling legal causes of action or making legal decisions on behalf of the child or the interest in her deceased
mother=s estate@ and granted the requested temporary restraining order without further change. The next day, the
Grandparents filed a Petition to Modify the Parent-Child Relationship seeking sole managing conservatorship of S.E.
E. and again asked the trial court to restrain Collins from filing legal causes of action or making legal decisions on S.
E.E.=s behalf. The trial court set a hearing for May 23, 2007 to determine, inter alia, whether to issue a temporary
injunction and whether the Grandparents Ashould be appointed the temporary conservator[s] who ha[ve] the right to
designate the primary residence of the child with the rights and duties of a sole managing conservator including the
exclusive right to make all legal decisions including, but not limited to, filing lawsuits.@ In the meantime, Collins
filed a counter-petition in which he also sought sole managing conservatorship of the child.

The hearing originally set for May 23, 2007 was apparently postponed for a week, and on May 30, 2007, the trial court
appointed Chad P. Ellis as an amicus attorney Ato provide legal services necessary to assist the Court in protecting
the best interests of@ S.E.E. The trial court ordered the Grandparents and Collins each to deposit $1,000 with Ellis,
and further ordered as follows:

IT IS ORDERED that the Amicus Attorney is granted the right to contract for legal services on behalf of the child in
regards to legal counsel for representation in litigation resulting from the death of the child=s mother. IT IS
ORDERED that the Amicus Attorney shall have the right to bring suit on behalf of the child the subject of this suit in
regards to any legal action involving the death of the child=s mother. The Amicus Attorney is not claiming nor shall he
be due a referral fee[.]

IT IS ORDERED that for any litigation involving the child the subject of this suit, the Amicus Attorney shall attend all
hearings, depositions and trials and shall review all pleadings, correspondence, discovery requests/responses,
expert reports and other case materials.

IT IS ORDERED that with regard to litigation involving the child the subject of this suit, including litigation in other
counties, the parties, their agents and/or legal representatives shall provide the Amicus Attorney with notice of all
hearings, trial settings, deposition dates and times.

IT IS ORDERED that with regard to litigation involving the child the subject of this suit, including litigation in other
counties, the parties, their agents and/or legal representatives shall provide the Amicus Attorney with copies of all
pleadings, correspondence, discovery requests/responses, expert reports and any other case materials received by
the parties or counsel.

At a further hearing on June 26, 2007, the trial court stated, AAll parties are ordered to cease personal injury lawsuits
on behalf of the child[,] and Attorney Ellis, not the grandparents or the father[,] will have the sole right to make legal
decisions on behalf of the child . . . .@ Counsel for the Grandparents indicated to the trial court that their action on S.
E.E.=s behalf had been dismissed, although they continued to maintain the action in their own right for the wrongful
death of their daughter, S.E.E.=s mother.

In his asserted capacity as S.E.E.=s next friend, the amicus attorney retained Mark Lanier to act as S.E.E.=s attorney
of record. Lanier filed an original suit in County Court at Law No. 3 of Fort Bend County seeking damages for the
death of S.E.E.=s mother;[8] however, the parties report that the Fort Bend wrongful death case was subsequently
dismissed and refiled in Harris County.

On July 16, 2007, the trial court signed temporary orders appointing Collins and the Grandparents joint managing
conservators, and awarded the Grandparents Athe exclusive right to designate the primary residence of the child . . . .
@ Collins then sought mandamus relief to compel the trial court to vacate those portions of its orders that permitted
Ellis to act as S.E.E.=s next friend, hire legal counsel for her, and be paid for services performed in connection with
litigation (other than the instant SAPCR) in which S.E.E. is a party.

II. Issues Presented

Collins asserts that the trial court=s rulings Apurport[] to confer rights to the amicus attorney that are well beyond the
scope of section 107.003 [of the Texas Family Code], and in direct violation of [r]elator=s constitutional and statutory
rights as a parent.@[9] Specifically, Collins challenges the respondent=s orders authorizing the amicus attorney to
hire legal counsel to represent S.E.E., to appear as her next friend, and to receive compensation for work performed
in cases other than the instant conservatorship action. We also preliminarily address the Grandparents= arguments
that Collins waived his right to protest the trial court=s rulings and that he did not have the authority to bring suit on
his daughter=s behalf.

III. Standard of Review

Mandamus relief is available only if the court clearly abused its discretion and the party has no adequate remedy by
appeal. In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). A trial court abuses its discretion if
it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, or if it clearly
fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig.
proceeding); see also In re Fort Worth Childrens= Hosp., 100 S.W.3d 582, 590B91 (Tex. App.CFort Worth 2003, orig.
proceeding [mand. dism=d]) (conditionally granting writ of mandamus to vacate order that appointed guardian ad
litem under circumstances not authorized by statute).

IV. Analysis

A.      Waiver

We must begin our analysis by addressing the Grandparents= argument concerning waiver. They contend in their
brief that A[w]hile Mr. Collins=s counsel had originally objected to naming Mr. Ellis as amicus, she later told the Court
that Mr. Collins was not interested in managing the litigation.@ Specifically, Collins=s counsel stated:

And Mr. Collins knows - - I=ve discussed this with him ad nauseam. He has no pecuniary interest in a lawsuit that
can be brought in [S.E.E.=s] name. He respects the Court=s ruling on Mr. Ellis spearheading the litigation for the
child. And at this point, he=s only here because he wants to be the managing conservator of his daughter.

Thus, the Grandparents argue that Collins=s petition must be denied because his counsel Ajudicially admitted@
during the temporary custody hearing that he respected the trial court=s order concerning the powers of the amicus
attorney. We disagree.

A judicial admission is Aa formal waiver of proof usually found in pleadings or the stipulations of the parties.@
Hennigan v. I.P. Petroleum Co., Inc., 858 S.W.2d 371, 372 (Tex. 1993) (per curiam) (quoting Mendoza v. Fid. & Guar.
Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980)). The statements of counsel at issue here do not constitute
a judicial admission because litigants are required to Arespect@ all rulings of the court. Moreover, Collins=s
counsel further stated that Awe believe that under the law, [Collins] has the right to be the managing conservator of
this child. He is the sole remaining parent that is living and he wants to serve in that capacity.@ (emphasis added).
Inasmuch as the parent of a child has Athe right to represent the child in legal action and to make other decisions of
substantial legal significance concerning the child[,]@[10] we cannot conclude that Collins has waived the issues
presented here.

B.      The Wrongful Death Suit Brought by Collins as S.E.E.=s Next Friend

Collins begins with the contention that, as S.E.E.=s father, he was authorized to assert S.E.E.=s wrongful death
claims as S.E.E.=s next friend. The Grandparents respond that the prior court order granted S.E.E.=s mother the
exclusive right to take legal action on S.E.E.=s behalf. As previously noted, this prior order provided that A[t]he
conservator designated with the primary physical residence of the child@ had the exclusive Apower to represent the
child in legal action and to make other decisions of substantial legal significance concerning the child including the
right to establish the primary residence of the child . . . .@[11] But Ain the event of the death of the managing
conservator, the surviving parent has a right to possession of the children . . . .@ Greene v. Schuble, 654 S.W.2d 436,
438 (Tex. 1983).

Although a parent=s right to Apossession@ and issues of conservatorship (or the child=s residence) are distinct
legal concepts,[12] we agree that the mother=s rights to establish S.E.E.=s residence and to exercise S.E.E.=s legal
rights were extinguished upon her death. At that time, the right to take legal action on S.E.E.=s behalf passed to
Collins as her only surviving parent. See Massey v. Galvan, 822 S.W.2d 309, 319 (Tex. App.CHouston [14th Dist.]
1992, writ denied) (when the managing conservator dies, the surviving parent has the right to contract for the minor
children); see also Tex. R. Civ. P. 44 (minors who have no legal guardian may sue and be represented by a Anext
friend@);[13] Tex. Fam. Code Ann. ' 151.001(a)(7) (Vernon Supp. 2007) (subject to court orders, the parent of a child
has Athe right to represent the child in legal action and to make other decisions of substantial legal significance
concerning the child@); Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429 (Tex. 1986) (orig. proceeding) (affirming
trial court=s order denying father=s motion, as managing conservator, to replace mother as son=s next friend). We
therefore conclude that Collins acted within his authority in asserting his daughter=s claims.

C.      Amicus Attorneys Appointed in SAPCRs

1.       The Role of an Amicus Attorney in a SAPCR

In a suit affecting the parent-child relationship, an amicus attorney may be appointed to assist the court[14] in
determining the best interests of the child.[15] For the purposes of such a suit, the role of an Aamicus attorney@ is
statutorily defined:

AAmicus attorney@ means an attorney appointed by the court in a suit, other than a suit filed by a governmental entity,
whose role is to provide legal services necessary to assist the court in protecting a child=s best interests rather than
to provide legal services to the child.

Tex. Fam. Code Ann. ' 107.001(1); see also O=Connor v. O=Connor, BS.W.3dB, No. 01-06-00445-CV, 2007 WL
1440990, at *4 (Tex. App.CHouston [1st Dist.] May 17, 2007, no pet. h.) (ABecause the amicus attorney is >to provide
legal services to assist the court,= the trial court is, in effect, the amicus attorney=s client for a limited purpose. But
the trial court is not a party . . . .@). The Texas Family Code sets forth the duties of an amicus attorney in some detail:

An . . . amicus attorney appointed to assist the court:

(1)     shall:

(A)     subject to Rules 4.02, 4.03, and 4.04, Texas Disciplinary Rules of Professional Conduct, and within a
reasonable time after the appointment, interview:

(i)      the child in a developmentally appropriate manner, if the child is four years of age or older;

(ii)      each person who has significant knowledge of the child=s history and condition, including any foster parent of
the child; and

(iii)     the parties to the suit;

(B)     seek to elicit in a developmentally appropriate manner the child=s expressed objectives of representation;

(C)     consider the impact on the child in formulating the attorney=s presentation of the child=s expressed objectives
of representation to the court;

(D)     investigate the facts of the case to the extent the attorney considers appropriate;

(E)     obtain and review copies of relevant records relating to the child as provided by Section 107.006;

(F)     participate in the conduct of the litigation to the same extent as an attorney for a party;

(G)     take any action consistent with the child=s interests that the attorney considers necessary to expedite the
proceedings;

(H)     encourage settlement and the use of alternative forms of dispute resolution; and

(I)      review and sign, or decline to sign, a proposed or agreed order affecting the child;

(2)     must be trained in child advocacy or have experience determined by the court to be equivalent to that training;
and

(3)     is entitled to:

(A)     request clarification from the court if the role of the attorney is ambiguous;

(B)     request a hearing or trial on the merits;

(C)     consent or refuse to consent to an interview of the child by another attorney;

(D)     receive a copy of each pleading or other paper filed with the court;

(E)     receive notice of each hearing in the suit;

(F)     participate in any case staffing concerning the child conducted by an authorized agency; and

(G)     attend all legal proceedings in the suit.

Tex. Fam. Code Ann. ' 107.003. In addition to these duties, the following responsibilities are imposed upon an
amicus attorney:

(a)     Subject to any specific limitation in the order of appointment, an amicus attorney shall advocate the best
interests of the child after reviewing the facts and circumstances of the case. Notwithstanding Subsection (b), in
determining the best interests of the child, an amicus attorney is not bound by the child=s expressed objectives of
representation.

(b)     An amicus attorney shall, in a developmentally appropriate manner:

(1)     with the consent of the child, ensure that the child=s expressed objectives of representation are made known to
the court;

(2)     explain the role of the amicus attorney to the child;

(3)     inform the child that the amicus attorney may use information that the child provides in providing assistance to
the court; and

(4)     become familiar with the American Bar Association=s standards of practice for attorneys who represent
children in custody cases.

(c)     An amicus attorney may not disclose confidential communications between the amicus attorney and the child
unless the amicus attorney determines that disclosure is necessary to assist the court regarding the best interests
of the child.

Id. ' 107.005. Thus, Collins argues that the trial court was not authorized to appoint Ellis to act as S.E.E.=s next friend,
to hire counsel for her, or to be paid for work in other litigation in which she is a party, because these rights and
duties exceed those authorized by the Family Code. See id. ' 107.001(1) (the role of an amicus attorney is to assist
the court); O=Connor, 2007 WL 1440990, at *4 (AThe amicus attorney is appointed specifically to assist the court.
And the plain language of the statutory definition of amicus attorney can mean only that the amicus attorney assists
the court that appointed [the amicus attorney.]@) (emphasis added). We therefore consider the scope of the trial
court=s authority to appoint an amicus in the manner and with the powers at issue here.

3.       Scope of Trial Court=s Power to Appoint an Amicus Attorney in a SAPCR

A trial court=s powers to make discretionary appointments are addressed in section 107.021 of the Texas Family
Code:

(a)     In a suit in which the best interests of a child are at issue, . . . the court may appoint one of the following:

(1)     an amicus attorney;

(2)     an attorney ad litem; or

(3)     a guardian ad litem.

. . .

(b)     In determining whether to make an appointment under this section, the court:

(1)     shall:

(A)     give due consideration to the ability of the parties to pay reasonable fees to the appointee; and

(B)     balance the child=s interests against the cost to the parties that would result from an appointment by taking into
consideration the cost of available alternatives for resolving issues without making an appointment;

(2)     may make an appointment only if the court finds that the appointment is necessary to ensure the determination
of the best interests of the child, unless the appointment is otherwise required by this code; and

(3)     may not require a person appointed under this section to serve without reasonable compensation for the
services rendered by the person.[16]

Tex. Fam. Code Ann. ' 107.021(emphasis added).

Although intended to protect S.E.E.=s interest, the appointment here was based on incorrect premises:

Court: [W]hat happened is that two parties [i.e., Collins and the Grandparents], neither of whom have any legal right to
represent this child, I understand have filed lawsuits. Something needs to be done to protect this child.@

(emphasis added). But Collins, as S.E.E.=s father, did have the legal right to assert S.E.E.=s claims and was acting
as her next friend without charge. And there is no finding or evidence that the attorneys he hired acted in a manner
that failed to protect S.E.E.=s best interests.[17]

Ellis, however, advised the respondent as follows:

Ellis:   I think one of the problems that they [i.e., counsel retained by Collins to represent S.E.E. in the wrongful death
suit] haven=t foreseen though, Judge, is if they are allowed to go forward in their suit and ultimately it is the other party
[i.e., the Grandparents] that is granted the right to represent the child, then they [i.e., the attorneys] now represent the
other party on behalf of the child which creates a huge conflict because they=re representing a party who=s in
litigation with their former client.

And so, you know, that=s one of the reasons I said - - that I put in two paragraphs, No. 1, that the Amicus have [sic]
the right to retain legal counsel and, No. 2, that for the time being, that that suit should be brought as the Amicus as
next friend of [sic] and so that we don=t run into conflict problems later on when this Court ultimately decides which of
the parties have the right to go forward in litigation.

I don=t want to make the settlement call. I don=t want to make - -I don=t want to make major legal decisions in this
case. If one of those was required, I would definitely come back to the Court. But I think for the time being, that=s the
way that this should proceed.

The Grandparents similarly assert that by purporting to confer the powers at issue on Ellis, Athe Court wisely avoided
the conflict which would have occurred if the Court had given one of the litigants the immediate right to choose
counsel and then, after hearing all the evidence, named the [Grandparents] as managing conservators . . . .@ They
contend that, in those circumstances, they would be Aforced to work with counsel who had been adverse to them in
these custody proceedings.@[18]

But the trial court=s primary concern must be the child=s best interest, not the interests of the Grandparents. Tex.
Fam. Code Ann. ' 153.002 (Vernon 2002). Thus, the trial court could not expand the statutory powers of an amicus
attorney on this basis. Moreover, the conflict described by Ellis and the Grandparents does not exist; there is no
basis for the suggestion that one of the Grandparents, if given the exclusive right to make S.E.E.=s legal decisions,
automatically would become a client of the attorneys retained by Collins to represent S.E.E. See Urbish, 708 S.W.2d
at 431 n.1 (stating that the Legislature did not intend Ato require that every time you change managing conservators
you have to change lawyers@).

Collins=s attorney pointed out that Athere=s going to be lots of legal proceedings and this could become [cost]
prohibitive, not only to my client, but to [the Grandparents] as well . . . .@ But despite the cost, it is clear from
respondent=s statements that Ellis was not hired simply to help the court determine S.E.E.=s best interests
regarding conservatorship and the rights attending conservatorship, but for purposes beyond those authorized by
statute:

Court: This Court has a lot of respect for Mr. Ellis and the main reason that Mr. Ellis was appointed is, not only does
he have experience from a family law standpoint, he=s got experience from a personal injury standpoint.

(emphasis added). Moreover, the trial court considered payment from settlement of the wrongful death suit rather
than the parties= ability to pay:

Court: I have explained to Mr. Ellis that most of his fee is going to have to come out of any settlement. So, I do not
intend that this Court is going to periodically tap the father or the grandmother for additional fees.

Apparently on Ellis=s recommendation, the trial court ordered Athat for any litigation involving [S.E.E.], the Amicus
Attorney shall attend all hearings, depositions and trials and shall review all pleadings, correspondence, discovery
requests/responses, expert reports and other case materials.@ The briefs indicate that, since her mother=s death,
S.E.E. has been involved in lawsuits in five courts across two counties.[19] But the amicus attorney=s review of all of
these documents and attendance at all of these depositions, hearings, and trials in the wrongful death cases would
incur great costs without assisting the trial court to determine S.E.E.=s best interest with regard to conservatorship
and without expediting the resolution of the conservatorship issues actually presented in this case.

Although the trial court acted in accordance with the recommendations of the amicus attorney appointed to assist the
court in determining S.E.E.=s best interests, we conclude that the trial court abused its discretion in issuing orders
that exceeded its authority.   And for the reasons discussed below, we reject the Grandparents= arguments that the
trial court was authorized by statute, necessity, or by its own inherent powers to confer the status of compensated
Anext friend@ on the amicus attorney.

3.       No Basis for Expanding Amicus Attorney=s Authority

The Grandparents argue that section 107.003(1)(G) of the Texas Family Code gives the amicus attorney the power to
Atake any action consistent with the child=s interests that the attorney considers necessary to expedite the
proceedings@ and contend that the amicus appointment prevented delay in the wrongful death case. But this
argument is without merit for several reasons. First, under the plain language of the statute, the phrase Ato expedite
the proceedings@ refers to expediting the SAPCR, not a separate wrongful death case. See O=Connor, 2007 WL
1440990, at *4. Second, the statute does not authorize an amicus attorney to expedite a SAPCR by using powers not
conferred by statute, and the statute does not purport to expand the amicus attorney=s powers to allow him to act as
S.E.E.=s next friend in other lawsuits, to enter contracts on S.E.E.=s behalf, or to participate in other litigation on S.E.E.
=s behalf. See Tex. Fam. Code Ann. '' 107.003, 107.005 (Vernon Supp. 2007). Third, the actions ordered by the trial
court are not Aconsistent with the child=s interests@ as required by section 107.003(1)(G), because S.E.E. was
already represented by counsel in the wrongful death litigation, and Collins could and did act as her next friend
without charge.[20] Although the Grandparents argue that the trial court needed to appoint an amicus attorney to hire
counsel to represent S.E.E. because it was necessary to obtain an injunction in the wrongful death suit[21] to prevent
the destruction of evidence, S.E.E. was already being represented by attorneys hired by her father and attorneys hired
by her Grandparents. No one contends that these various attorneys could not or did not protect her interests
adequately.

The Grandparents also argue that by declaring Ellis to be S.E.E.=s next friend with the right to hire counsel, the trial
court ensured that counsel would be retained in a timely manner so the personal injury litigation could go forward.
This presumption, too, is based on a false premise, for there was no such issue. Collins had immediately retained
counsel to assert S.E.E.=s interests, and the record does not reflect that any action by respondent was necessary to
allow the wrongful death suit to proceed. In addition, the Grandparents argue that the trial court has the authority to
limit the right of a sole managing conservator Aeven to the extent of giving that right to a third party.@ In support of
this statement, they rely on sections 153.132 and 153.371 of the Family Code. See id. '153.132 (addressing the
rights and duties of a parent appointed as sole managing conservator); ' 153.371 (addressing the rights and duties
of a non-parent sole managing conservator). But neither statute applies here; in fact, S.E.E. has never had a sole
managing conservator. Moreover, in the absence of an order to the contrary, a child=s sole surviving parent can bring
suit on the child=s behalf, even though no court order appoints the parent as the sole managing conservator.
Massey, 822 S.W.2d at 319; see also Tex. Prob. Code Ann. ' 676(b) (Vernon 2003) (AIf one parent is dead, the
survivor is the natural guardian of the person of the minor children and is entitled to be appointed guardian of their
estates.@).

In similar arguments, the Grandparents contend, and Collins disputes, that the trial court has inherent authority to
confer the powers at issue on the amicus attorney. But A[t]he inherent powers of a court are those which it may call
upon to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its
independence and integrity.@ Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979). None of these
purposes were served by orders purporting to appoint Ellis as S.E.E.=s next friend with the authority to hire counsel
on her behalf and to charge for the services Ellis performed in attending and reviewing materials from the various
wrongful death lawsuits involving S.E.E. The trial court lacked the power to retain counsel to represent S.E.E. in a
different suit and could not accomplish the same ends through an amicus attorney. See Thomas v. Anderson, 861 S.
W.2d 58, 61 (Tex. App.CEl Paso 1993, no writ).

V. Conclusion

In sum, we conclude the trial court abused its discretion by ordering Collins to cease prosecuting S.E.E.=s claims as
her next friend and by ordering the amicus attorney to act as S.E.E.=s next friend, to hire counsel to represent her, and
to be paid for services connected with the various wrongful death suits. We therefore conditionally grant Collins=s
petition for writ of mandamus directing Judge Kern to reform his prior orders as follows:

1.       Order Appointing Amicus Attorney, signed May 30, 2007, at 1, & 2, changing AThe Court hereby finds that
Amicus Attorney is entitled to reasonable fees and expenses to be paid initially by the parties as follows . . . .@ to
AThe Court hereby finds that Amicus Attorney is entitled to reasonable fees and expenses for his services in this
modification proceeding, to be paid by the parties as follows . . . .@;[22]

2.       Striking paragraphs 3B6 on page 3 of the Order Appointing Amicus Attorney, signed May 30, 2007;[23]

3.       Striking the following language from page 15, Temporary Orders in Suit Affecting the Parent-Child Relationship,
signed July 16, 2007: AIT IS ORDERED that all parties, their agents, and/or legal representatives cease any and all
personal injury suits filed on behalf of the child. IT IS FURTHER ORDERED that CHAD ELLIS, Amicus, shall have the
exclusive to [sic] right to file suit on behalf of the child subject of this suit.@

We are confident that Judge Kern will make such changes; thus, a writ of mandamus will issue only if he declines to
do so.

/s/      Eva M. Guzman

Justice

Judgment rendered and Opinion filed December 17, 2007.

Panel consists of Justices Yates, Fowler, and Guzman.

--------------------------------------------------------------------------------

[1]   The underlying lawsuit is styled In the Interest of [S.E.E.], Minor Child, Cause No. 99-CV-110, 167 (387th Dist. Ct.,
Fort Bend County, Texas).

[2]   This court has continuing exclusive jurisdiction over any suit affecting the parent-child relationship (ASAPCR@)
concerning S.E.E.

[3]   Font normalized.

[4]   Font normalized.

[5]   James Doyle also represented Collins in the modification proceeding below and in connection with Collins=
petition for writ of mandamus.

[6]   Willie Hargrove, Individually and as Next Friend of Porscha Daniels, and as Representative of the Estate of
Jeanette Hargrove v. Boxer Prop. Mgmt., 9343 N. Loop, LP and Misty Ann Weaver, Cause No. 2007-22019. Collins
filed a petition in intervention in the case on April 26, 2007.

[7]   Jerome H. Ellis, Individually and as Next Friend of [S.E.E.], and as Representative of the Estate of Shana Ellis,
Deceased, and Sally Ellis, Individually v. Boxer Prop. Mgmt., 9343 N. Loop, LP and Misty Ann Weaver, Cause No.
2007-25455.

[8]   Chad Ellis a/n/f [S.E.E.] v. Boxer Prop. Mgmt. and 9343 North Loop, L.P., Cause No. 20,411-A.

[9]   No constitutional arguments have been briefed; therefore, this complaint has been waived. See Tex. R. App. P.
33.1(h).

[10]   Tex. Fam. Code Ann. ' 151.001(a)(7) (Vernon Supp. 2007).

[11]   Font normalized.

[12]   See In re C.A.M.M., BS.W.3dB, No. 14-06-00279-CV, 2007 WL 3145835, at *5 (Tex. App.CHouston [14th Dist.]
October 30, 2007, no pet. h.) (stating that Greene=s holding is limited to the right of possession, and is not
dispositive of conservatorship issues).

[13]   There is no evidence that any other person was authorized to act as S.E.E.=s guardian upon her mother=s
death.

[14]   Tex. Fam. Code Ann. ' 107.003.

[15]   Id. ' 107.005.

[16]   Compare id. ' 107.021(d) (requiring reasonable compensation to be paid to an amicus attorney) with Tex. R.
Civ. P. 44 (concerning suits by a next friend and containing no requirement or permission for compensation). See
also Williams v. Sinclair-Prairie Oil Co., 135 S.W.2d 211, 218 (Tex. Civ. App.CTexarkana 1939, writ dism=d judgm=t
cor.) (holding that a next friend is not entitled for fees for such services).

[17]   We further note that a minor without a legal guardian and who is represented by a next friend can also be
protected by the district court in which the wrongful death action is pending. See, e.g., Tex. Prop. Code Ann. ' 142.001
(a) (Vernon 2007) (authorizing the trial court to Aprovide by decree for the investment of funds accruing to the minor@
if the minor has no legal guardian and is represented by a next friend); id. ' 142.002 (allowing trial court to order
another person to take possession of funds recovered by minor and requiring next friend or other person to post
bond before taking possession of minor=s funds); id. ' 142.004(a)(2) (addressing investment of minor=s funds by the
clerk of the court).

[18]   This argument is based on the false assumption that, in the event the Grandparents are awarded the right to
take legal action on S.E.E.=s behalf, they would somehow be forced to Awork with@ the attorney retained by Collins
to represent S.E.E., and that such conflict is avoided by respondent=s appointment of Ellis as S.E.E.=s next friend.
No legal or factual support has been offered for either contention.

[19]   See (1) Willie Hargrove, Individually and as Next Friend of Porscha Daniels, and as Representative of the Estate
of Jeanette Hargrove v. Boxer Prop. Mgmt., 9343 N. Loop, LP and Misty Ann Weaver, Cause No. 2007-22019 in the
133rd District Court of Harris County (in which Collins filed a petition in intervention as S.E.E.=s next friend on April
26, 2007); (2) Jerome H. Ellis, Individually and as Next Friend of [S.E.E.], and as Representative of the Estate of
Shana Ellis, Deceased, and Sally Ellis, Individually v. Boxer Prop. Mgmt., 9343 N. Loop, LP and Misty Ann Weaver,
Cause No. 2007-25455 in the 152nd District Court of Harris County (i.e., the Grandparents= suit); (3) In the Interest of
[S.E.E.], Cause No. 99-CV-110167 in the 387th District Court of Fort Bend County (i.e., this case); (4) Chad Ellis a/n/f
[S.E.E.] v. Boxer Prop. Mgmt. and 9343 North Loop, L.P., Cause No. 20,411-A in County Court at Law No. 3 of Fort
Bend County; and (5) another wrongful death suit brought by the amicus attorney in Harris County. Although Collins
concludes that the amicus=s first wrongful death suit was dismissed and refiled, it also possible that venue was
simply transferred.

[20]   The record reveals no claim that Collins=s interests in filing the wrongful death suit were adverse to his
daughter=s interests.

[21]   We cannot determine whether the Grandparents are referring to S.E.E.=s wrongful death suit in the 133rd
District Court (brought by Collins as her next friend) or the 152nd District Court (brought by her Grandfather as her
next friend).

[22]   The phrase Areasonable fees and expenses for his services in this modification proceeding@ does not include
fees and expenses incurred by the amicus attorney for services rendered as S.E.E.=s next friend or in actions other
than this SAPCR proceeding.

[23]   The paragraphs to be stricken are quoted in full in the Factual and Procedural Background section of the this
opinion. Collins also asks this court to vacate respondent=s AMay 30, June 26, and July 16 orders [only with regard
to the powers of the amicus attorney and the prosecution of [S.E.E.]=s lawsuit, referenced at page 15],@ but we find
no written order of June 26, 2007. To the extent that respondent=s language at the hearing on that date constitutes
an order, it was memorialized in the written order of July 16, 2007 and therefore is subject to the modification of that
order. Collins also asks this court to order respondent to refrain from further appointments of amicus attorneys,
attorneys ad litem, guardians ad litem, Aor any other appointment made for the purpose of attempting to intervene in,
interfere with, or relating to the pending wrongful death claim.@ Because the trial court could make only one
discretionary appointment and has already done so, no such order is necessary. See Tex. Fam. Code Ann. ' 107.021
(a).

Melasky as GAL v. City of Houston (Tex.App.- Houston [14th Dist.] Aug. 16, 2007)(Yates)
(guardian attorney ad litem fee, law of the case, minors, remand, scope of mandate)
AFFIRMED: Opinion by Justice Brock Yates
(Before Justices Brock Yates, Edelman and Seymore)
14-06-00386-CV David Melasky as Guadian Ad Litem v. City of Houston
Appeal from 80th District Court of Harris County (no judge shown on docket sheet)

Appellant David Melasky challenges the trial court=s orders, rendered on remand, awarding Melasky $6,900 as his
guardian ad litem fee. Melasky contends the trial court erred in failing to award him appellate fees of $4,500 and
$3,902 he claimed as unreimbursed expenses. We affirm.

I. Procedural Background

This case first came before the court in 2003. The background of the 2003 appeal is set forth in detail in City of
Houston v. Woods, 138 S.W.3d 574, 577B79 (Tex. App.CHouston [14th Dist.] 2004, no pet.). In the underlying lawsuit
giving rise to the 2003 appeal, Mary Woods sued the City for injuries she and her four minor children allegedly
sustained in an automobile accident involving a City vehicle. Id. at 577. On September 26, 1997, the trial court
appointed Melasky as guardian ad litem for the four children and, on June 29, 1999, appointed Melasky as attorney
ad litem for one of the children, Darrell. See id. at 577, 578.

In the 2003 appeal, the City challenged two orders awarding Melasky ad litem fees.[1] In the first order, signed
February 1, 2003, the trial court awarded Melasky (1) costs and fees in the amount of $13,614.50 for his services
rendered as attorney ad litem on behalf of Darrell and (2) an additional $4,500 if an appeal regarding the fees and
costs were to be filed in the court of appeals, an additional $4,500 if writ of error were to be filed, an additional $3,000
if application for writ of error were to be granted, and an additional $6,000 if any additional appeals were taken.[2]
See id. at 578. The court specifically stated the amounts awarded did not include any amounts previously awarded
for services rendered as guardian ad litem for the other minor plaintiffs. See id.

In the second order, the trial court ordered that the fees and costs awarded to Melasky for services as both guardian
ad litem and attorney ad litem on behalf of Darrell by the February 1, 2003 order be assessed two‑thirds against the
City and one‑third against Winston Griffin, the owner of the vehicle Mary was driving. See id. The trial court found
Agood cause exists for this assessment in that David Melasky in both his capacity as Guardian ad [sic] Litem and
Attorney Ad Litem has acted in the best interest of Darrell Woods and was necessary to protect the interests of the
minor.@ Id.

In the 2003 appeal, the City framed its sole issue as whether Athe trial court err[ed] in awarding $13,614.50 in
attorney=s fees to the attorney ad litem for Darrel Woods.@ The City=s argument, however, encompassed the
following four complaints: (1) the trial court abused its discretion in awarding guardian ad litem fees for work Melasky
performed in his role as plaintiff=s attorney, (2) the trial court abused its discretion in refusing to remove the guardian
ad litem after the conflict between the next friend and the minor ended, (3) the trial court abused its discretion in
assessing the guardian ad litem fees as costs against the City because it was the successful party, and (4) the trial
court abused its discretion in appointing an attorney ad litem and assessing attorney fees as costs against the City.
See id. at 579.

This court rejected the City=s first three complaints but agreed with fourth. See id. at 579B83. The court then
concluded:

Finding that the trial court abused its discretion in awarding attorney fees to the attorney ad litem as costs against the
City, we reverse and remand that portion of the judgment awarding Melasky attorney ad litem fees and order the trial
court to reform its judgment by excluding any sums awarded as attorney fees. We affirm that portion of the judgment
awarding guardian ad litem fees for work performed prior to the appointment of David Melasky as attorney ad litem.
The judgment of the trial court is affirmed, in part, and reversed and remanded, in part.

Id. at 583. The judgment and mandate provided:

We have inspected the record and find the trial court erred in awarding attorney fees to the attorney ad litem as costs
against the City of Houston. We therefore REVERSE and REMAND that portion of the judgment awarding attorney ad
litem fees as costs against the City of Houston and order the trial court to reform its judgment to exclude any sums
awarded as attorney fees in accordance with this court=s opinion.

Further, we find no error in the remainder of the judgment and order it AFFIRMED.

On remand, the trial court held a hearing Aon the proper disposition of the fees and expenses of the guardian ad
litem.@ Melasky and the City agreed Melasky was owed a total of $6,900 in guardian ad litem fees, with the City
owing $4,600 of that total. Melasky then testified and introduced exhibits regarding disputed hours and expenses.

The trial court awarded Melasky $6,900 as his total guardian ad litem fee, with two-thirds taxed against the City and
one-third taxed against Griffin. The court did not award any amount for appellate fees or for any additional expenses.

II. Analysis

A. Issues Presented and Standard of Review

In two issues, Melasky argues the trial court erred on remand, (1) Aby failing to award the $4,500.00 awarded to the
Guardian Ad Litem by the District Court in 2003 in the event of an appeal@ and (2) Aby failing to award compensation
for costs incurred by the Guardian Ad Litem.@ Generally, the award of guardian ad litem fees is in the sound
discretion of the trial court and will not be set aside absent evidence the trial court abused its discretion. Garcia v.
Martinez, 988 S.W.2d 219, 222 (Tex. 1999); Woods, 138 S.W.3d at 580; see Tex. R. Civ. P. 173.6 (regarding guardian
ad litem=s compensation). Nevertheless, on remand, a trial court=s authority is limited to trying only those issues
specified in the appellate court=s mandate. Harris County Children=s Protective Servs. v. Olvera, 77 S.W.3d 336, 340
(Tex. App.CHouston [14th Dist.] 2002, pet. denied).

B. Issues

1.       Did the Trial Court Exceed the Scope of the Mandate by not Awarding $4,500 in Appellate Fees?

Melasky argues the trial court erred on remand when it failed to award the $4,500 the district court awarded in 2003 if
the case were appealed to the court of appeals. Melasky contends because the City never challenged this award in
the 2003 appeal, the award Acould not have been reversed in the 2003 appeal and is final under the >Law of the
Case= doctrine.@

Resolution of Melasky=s first issue rests on the interpretation of this court=s mandate in the 2003 appeal. In
interpreting the mandate of an appellate court, the trial court looks not only to the mandate itself but also to the
appellate court=s opinion. Denton County v. Tarrant County, 139 S.W.3d 22, 23 (Tex. App.CFort Worth 2004, pet.
denied); see Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (implicitly referring to trial court=s interpretation).
When an appellant argues the trial court exceeded the scope of its authority on remand, this court also looks not only
to the mandate itself, but also to this court=s opinion ordering the remand. See Olvera, 77 S.W.3d at 341;
McGoodwin v. McGoodwin, 181 S.W.3d 870, 873 (Tex. App.CDallas 2006, pet. denied).

We disagree with Melasky=s argument that our opinion and mandate in the 2003 appeal did not address the issue of
appellate attorney fees. Our opinion discussed at length the distinction between guardian at litem and attorney ad
litem fees and stated that although a guardian ad litem is entitled to a reasonable fee for his services to be taxed as
costs, there is no provision generally allowing attorney ad litem fees to be taxed as costs. See Woods, 138 S.W.3d at
582. We held that when, as here, no statute provides for recovery of attorney ad litem fees, the trial court abuses its
discretion in awarding attorney fees to be taxed as costs. See id. at 582B83. We concluded by stating as follows:

Finding that the trial court abused its discretion in awarding attorney fees to the attorney ad litem as costs against the
City, we reverse and remand that portion of the judgment awarding Melasky attorney ad litem fees and order the trial
court to reform its judgment by excluding any sums awarded as attorney fees. We affirm that portion of the judgment
awarding guardian ad litem fees for work performed prior to the appointment of David Melasky as attorney ad litem.

Id. at 583.

In short, this court reversed that part of the judgment awarding attorney ad litem fees and ordered reformation to
exclude Aany sums awarded as attorney fees@; it affirmed only that part of the judgment awarding Aguardian ad
litem fees for work performed prior to [Melasky=s appointment] as attorney ad litem.@ Id. (emphasis added). Thus,
pursuant to this court=s opinion, the only question on remand was how much the trial court should award Melasky for
work done solely as a guardian ad litem after July 29, 1999Cthe date he was appointed attorney ad litem. The trial
court correctly understood this court=s mandate in the 2003 appeal, asking, AWouldn=t you agree that the Court of
Appeals= opinion was to say that there was not to be an award relative to any work done for [Melasky=s] appointment
as an attorney ad litem?@

Melasky argues that the City never challenged the trial court=s award of appellate attorney fees and thus waived any
such error. Our opinion and mandate clearly reverse all attorney fees awarded to Melasky. If Melasky believed we
improperly addressed an issue the City waived, he should have raised that argument in either a motion for rehearing
or on petition for review to the Texas Supreme Court. See Bunton v. Bentley, 153 S.W.3d 50, 53 (Tex. 2004). The trial
court acted within our mandate when it declined to award the $4,500 in appellate attorney fees. Accordingly, we
overrule Melasky=s first issue.

2.       Did the Trial Court Abuse its Discretion by Not Awarding an Additional $3,902?

In his second issue, Melasky faults the trial court for not awarding him an additional $3,902 for costs he claims he
incurred in his role as guardian, rather than attorney, ad litem. These costs were in addition to the $6,900 he and the
City agreed were owed to him for work as a guardian ad litem, $4,600 of which the court taxed to the City. The $3,902
comprised the following expenses, all incurred after July 29, 1999:

03/20/00

Partial Transcript

$ 159

03/20/00

Private Investigator

135

03/21/00

Deposition of Dr. Wise [City=s Medical Expert]

1,083

Paralegal 8 hours at $40.00/hour

320

03/27/00

Transportation for Darrell Woods to Dr. Rashti=s [independent medical examiner=s] office

90

03/27/00

Bill from Dr. Rashti

1,925

03/23/00

X-ray

145

               Total Expenses

$3,902

At the hearing on remand, the City cross-examined Melasky to establish these expenses were incurred in Melasky=s
role as attorney ad litem. Melasky admitted the private investigator expense was to locate and subpoena Darrell=s
mother, who received a witness fee. At the deposition, Melasky questioned Wise, the City=s medical expert. When
asked whether Dr. Rashti=s charges concerned preparation for litigation, Melasky responded, AThey sort of speak for
themselves.@ Dr. Rashti=s bills from March 2000 contain descriptions of Aconference, litigation,@ Areview records,
@ and Atelephone callCcomplex.@ Each bill contains a notation, Aattorney at [sic] litem for minors [sic].@ Given this
evidence, the trial court, acting within its discretion, could have found the $3,902 reflected expenses incurred in
Melasky=s role as attorney ad litem. The trial court acted within the scope of our mandate in the 2003 appeal when it
declined to award $3,902 in additional expenses. Accordingly, we overrule Melasky=s second issue.

III. Conclusion

Having overruled Melasky=s two issues, we affirm the trial court=s judgment.

/s/      Leslie B. Yates

Justice

Judgment rendered and Memorandum Opinion filed August 16, 2007.

Panel consists of Justices Yates, Edelman, and Seymore.

--------------------------------------------------------------------------------

[1] The City's notice of appeal referred only to the second order. As discussed below, however, the second order
referred to, and modified, the first.

[2] There is a typographical error in our opinion in the 2003 appeal. The trial court awarded $13,614.50, not
A$13,614.15.@ See Woods, 138 S.W.3d at 578.