Petition for Writ of Mandamus =
Conditionally=20
Granted and Opinion filed
December =
17,=20
2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-07-00624-CV
____________
IN RE=20
RUSSELL CRAIG COLLINS, =
Relator
ORIGINAL=20
PROCEEDING
WRIT OF=20
MANDAMUS
O P I N I=20
O N
In this=20
original proceeding,=20
relator, Russell Craig Collins, seeks a writ of mandamus =
compelling=20
respondent, the Honorable Robert J. Kern, to strike: (1) that =
portion of=20
respondent=3Ds=20
temporary orders requiring Collins to cease prosecuting his minor=20
daughter=3Ds wrongful=20
death claims as her next friend, and (2) that portion of=20
respondent=3Ds order=20
dated May 30, 2007, in which respondent appointed an amicus =
attorney to=20
act as next friend to Collins=3Ds minor=20
daughter. We conditionally grant the =
writ.
I. =20
Factual and Procedural Background
Collins is=20
the father of S.E.E., although he was never married to the=20
child=3Ds=20
mother. On May 23, 2000, the 387th District Court of =
Fort Bend=20
County=20
issued an Agreed Order appointing S.E.E.=3Ds parents=20
as joint managing conservators, but granting S.E.E.=3Ds mother=20
the exclusive right to determine S.E.E.=3Ds primary=20
residence. =20
Moreover, A[t]he=20
conservator designated with the primary physical residence of the=20
child@ =
was given=20
the exclusive Apower to=20
represent the child in legal action and to make other decisions of =
substantial legal significance concerning the child including the =
right to=20
establish the primary residence of the child . . . .@ =20
S.E.E. resided with her mother.
On March=20
28, 2007, S.E.E.=3Ds mother=20
was killed in a fire in a Houston office building. Within =
two days,=20
Collins sought legal counsel to pursue S.E.E.=3Ds claims=20
arising from her mother=3Ds=20
death. Collins consulted attorneys Tom Rowatt and =
James Doyle=20
and retained the law firm of Williams Kherkher, L.L.P. to =
represent=20
S.E.E. =20
In his asserted capacity as S.E.E.=3Ds next=20
friend, Collins intervened in a suit filed in the 133rd District =
Court of=20
Harris County by unrelated plaintiffs seeking damages arising from =
the=20
same fire in which S.E.E.=3Ds mother=20
was killed. =20
But two days before Collins intervened in that suit,=20
S.E.E.=3Ds maternal=20
grandfather, who also purported to act as S.E.E.=3Ds next=20
friend, filed an original wrongful death suit in the 152nd =
District Court=20
of Harris County. =20
Both maternal grandparents (the AGrandparents@) also=20
asserted their own claims for damages.
On April=20
23, 2007, the Grandparents obtained an ex parte temporary =
restraining=20
order in the 387th District Court of Fort Bend County. The =
trial=20
court deleted the Grandparents=3D =
proposed=20
provision that would have restrained Collins from Afiling=20
legal causes of action or making legal decisions on behalf of the =
child or=20
the interest in her deceased mother=3Ds=20
estate@ =
and=20
granted the requested temporary restraining order without further=20
change. The next day, the Grandparents filed a Petition to =
Modify=20
the Parent-Child Relationship seeking sole managing =
conservatorship of=20
S.E.E. and again asked the trial court to restrain Collins from =
filing=20
legal causes of action or making legal decisions on =
S.E.E.=3Ds=20
behalf. The trial court set a hearing for May 23, 2007 to =
determine,=20
inter alia, whether to issue a temporary injunction and =
whether the=20
Grandparents Ashould be=20
appointed the temporary conservator[s] who ha[ve] the right to =
designate=20
the primary residence of the child with the rights and duties of a =
sole=20
managing conservator including the exclusive right to make all =
legal=20
decisions including, but not limited to, filing =
lawsuits.@ In=20
the meantime, Collins filed a counter-petition in which he also =
sought=20
sole managing conservatorship of the child.
The=20
hearing originally set for May 23, 2007 was apparently postponed =
for a=20
week, and on May 30, 2007, the trial court appointed Chad P. Ellis =
as an=20
amicus attorney Ato provide=20
legal services necessary to assist the Court in protecting the =
best=20
interests of@ =
S.E.E. The trial court ordered the Grandparents and Collins =
each to=20
deposit $1,000 with Ellis, and further ordered as=20
follows:
IT IS ORDERED that =
the Amicus=20
Attorney is granted the right to contract for legal services on =
behalf of=20
the child in regards to legal counsel for representation in =
litigation=20
resulting from the death of the child=3Ds mother. IT =
IS ORDERED=20
that the Amicus Attorney shall have the right to bring suit on =
behalf of=20
the child the subject of this suit in regards to any legal action=20
involving the death of the child=3Ds mother. The =
Amicus=20
Attorney is not claiming nor shall he be due a referral =
fee[.]
IT IS ORDERED that =
for any=20
litigation involving the child the subject of this suit, the =
Amicus=20
Attorney shall attend all hearings, depositions and trials and =
shall=20
review all pleadings, correspondence, discovery =
requests/responses, expert=20
reports and other case materials.
IT IS ORDERED that =
with=20
regard to litigation involving the child the subject of this suit, =
including litigation in other counties, the parties, their agents =
and/or=20
legal representatives shall provide the Amicus Attorney with =
notice of all=20
hearings, trial settings, deposition dates and times.
IT IS=20
ORDERED that with regard to litigation involving the child the =
subject of=20
this suit, including litigation in other counties, the parties, =
their=20
agents and/or legal representatives shall provide the Amicus =
Attorney with=20
copies of all pleadings, correspondence, discovery =
requests/responses,=20
expert reports and any other case materials received by the =
parties or=20
counsel.
At a=20
further hearing on June 26, 2007, the trial court stated, =
AAll=20
parties are ordered to cease personal injury lawsuits on behalf of =
the=20
child[,] and Attorney Ellis, not the grandparents or the father[,] =
will=20
have the sole right to make legal decisions on behalf of the child =
. . .=20
.@ =20
Counsel for the Grandparents indicated to the trial court that =
their=20
action on S.E.E.=3Ds behalf=20
had been dismissed, although they continued to maintain the action =
in=20
their own right for the wrongful death of their daughter,=20
S.E.E.=3Ds=20
mother.
In his=20
asserted capacity as S.E.E.=3Ds next=20
friend, the amicus attorney retained Mark Lanier to act as=20
S.E.E.=3Ds attorney=20
of record. Lanier filed an original suit in County Court at =
Law No.=20
3 of Fort Bend County seeking damages for the death of =
S.E.E.=3Ds=20
mother;=20
however, the parties report that the Fort Bend wrongful death case =
was=20
subsequently dismissed and refiled in Harris =
County.
On July=20
16, 2007, the trial court signed temporary orders appointing =
Collins and=20
the Grandparents joint managing conservators, and awarded the =
Grandparents=20
Athe=20
exclusive right to designate the primary residence of the=20
child . . . .@ =20
Collins then sought mandamus relief to compel the trial court to =
vacate=20
those portions of its orders that permitted Ellis to act as=20
S.E.E.=3Ds next=20
friend, hire legal counsel for her, and be paid for services =
performed in=20
connection with litigation (other than the instant SAPCR) in which =
S.E.E.=20
is a party.
II. =20
Issues Presented
Collins=20
asserts that the trial court=3Ds rulings=20
Apurport[]=20
to confer rights to the amicus attorney that are well beyond the =
scope of=20
section 107.003 [of the Texas Family Code], and in direct =
violation of=20
[r]elator=3Ds=20
constitutional and statutory rights as a parent.@ =20
Specifically, Collins challenges the respondent=3Ds orders=20
authorizing the amicus attorney to hire legal counsel to represent =
S.E.E.,=20
to appear as her next friend, and to receive compensation for work =
performed in cases other than the instant conservatorship =
action. We=20
also preliminarily address the Grandparents=3D =
arguments=20
that Collins waived his right to protest the trial =
court=3Ds rulings=20
and that he did not have the authority to bring suit on his=20
daughter=3Ds behalf.=20
III. =20
Standard of Review
Mandamus=20
relief is available only if the court clearly abused its =
discretion and=20
the party has no adequate remedy by appeal. In re Sw. =
Bell Tel.=20
Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). =
A trial=20
court abuses its discretion if it reaches a decision so arbitrary =
and=20
unreasonable as to amount to a clear and prejudicial error of law, =
or if=20
it clearly fails to correctly analyze or apply the law. =
In re=20
Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) =
(orig.=20
proceeding); see also In re Fort Worth =
Childrens=3D =
Hosp., 100=20
S.W.3d 582, 590B91 (Tex.=20
App.CFort Worth=20
2003, orig. proceeding [mand. dism=3Dd])=20
(conditionally granting writ of mandamus to vacate order that =
appointed=20
guardian ad litem under circumstances not authorized by=20
statute).
IV. =20
Analysis
A. =20
Waiver
We must=20
begin our analysis by addressing the Grandparents=3D =
argument=20
concerning waiver. They contend in their brief that =
A[w]hile=20
Mr. Collins=3Ds counsel=20
had originally objected to naming Mr. Ellis as amicus, she later =
told the=20
Court that Mr. Collins was not interested in managing the=20
litigation.@ =20
Specifically, Collins=3Ds counsel=20
stated:
And Mr.=20
Collins knows - - I=3Dve=20
discussed this with him ad nauseam. He has no pecuniary =
interest in=20
a lawsuit that can be brought in [S.E.E.=3Ds]=20
name. He respects the Court=3Ds ruling=20
on Mr. Ellis spearheading the litigation for the child. And =
at this=20
point, he=3Ds only=20
here because he wants to be the managing conservator of his=20
daughter.
Thus, the=20
Grandparents argue that Collins=3Ds petition=20
must be denied because his counsel Ajudicially=20
admitted@ =
during=20
the temporary custody hearing that he respected the trial=20
court=3Ds order=20
concerning the powers of the amicus attorney. We=20
disagree.
A judicial=20
admission is Aa formal=20
waiver of proof usually found in pleadings or the stipulations of =
the=20
parties.@ =20
Hennigan v. I.P. Petroleum Co., Inc., 858 S.W.2d 371, 372 =
(Tex.=20
1993) (per curiam) (quoting Mendoza v. Fid. & Guar. Ins.=20
Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980)). =
The=20
statements of counsel at issue here do not constitute a judicial =
admission=20
because litigants are required to Arespect@ =
all=20
rulings of the court. Moreover, Collins=3Ds counsel=20
further stated that Awe believe=20
that under the law, [Collins] has the right to be the managing =
conservator=20
of this child. He is the sole remaining parent that =
is living=20
and he wants to serve in that capacity.@ =20
(emphasis added). Inasmuch as the parent of a child has =
Athe right=20
to represent the child in legal action and to make other decisions =
of=20
substantial legal significance concerning the child[,]@ =
we cannot=20
conclude that Collins has waived the issues presented here. =
B. =20
The Wrongful Death Suit Brought by Collins as =
S.E.E.=3Ds Next=20
Friend
Collins=20
begins with the contention that, as S.E.E.=3Ds father,=20
he was authorized to assert S.E.E.=3Ds wrongful=20
death claims as S.E.E.=3Ds next=20
friend. The Grandparents respond that the prior court order =
granted=20
S.E.E.=3Ds mother=20
the exclusive right to take legal action on S.E.E.=3Ds=20
behalf. As previously noted, this prior order provided that=20
A[t]he=20
conservator designated with the primary physical residence of the=20
child@ =
had the=20
exclusive Apower to=20
represent the child in legal action and to make other decisions of =
substantial legal significance concerning the child including the =
right to=20
establish the primary residence of the child . . . .@ But=20
Ain the=20
event of the death of the managing conservator, the surviving =
parent has a=20
right to possession of the children . . . .@ =20
Greene v. Schuble, 654 S.W.2d 436, 438 (Tex. 1983). =20
Although a=20
parent=3Ds right to=20
Apossession@ =
and=20
issues of conservatorship (or the child=3Ds=20
residence) are distinct legal concepts,=20
we agree that the mother=3Ds rights=20
to establish S.E.E.=3Ds=20
residence and to exercise S.E.E.=3Ds legal=20
rights were extinguished upon her death. At that time, the =
right to=20
take legal action on S.E.E.=3Ds behalf=20
passed to Collins as her only surviving parent. See =
Massey v.=20
Galvan, 822 S.W.2d 309, 319 (Tex. App.CHouston=20
[14th Dist.] 1992, writ denied) (when the managing conservator =
dies, the=20
surviving parent has the right to contract for the minor =
children); see=20
also Tex. R. Civ. P. =
44=20
(minors who have no legal guardian may sue and be represented by a =
Anext=20
friend@);=20
Tex. Fam. Code Ann. =
' 151.001(a)(7)=20
(Vernon Supp. 2007) (subject to court orders, the parent of a =
child has=20
Athe right=20
to represent the child in legal action and to make other decisions =
of=20
substantial legal significance concerning the child@);=20
Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429 (Tex. =
1986)=20
(orig. proceeding) (affirming trial court=3Ds order=20
denying father=3Ds motion,=20
as managing conservator, to replace mother as son=3Ds next=20
friend). We therefore conclude that Collins acted within his =
authority in asserting his daughter=3Ds=20
claims.
C. =20
Amicus Attorneys Appointed in SAPCRs
1. =20
The Role of an Amicus Attorney in a SAPCR
In a suit=20
affecting the parent-child relationship, an amicus attorney may be =
appointed to assist the court=20
in determining the best interests of the child. =20
For the purposes of such a suit, the role of an Aamicus=20
attorney@ =
is=20
statutorily defined:
AAmicus=20
attorney@ =
means an=20
attorney appointed by the court in a suit, other than a suit filed =
by a=20
governmental entity, whose role is to provide legal services =
necessary to=20
assist the court in protecting a child=3Ds best=20
interests rather than to provide legal services to the =
child.
Tex.=20
Fam. Code Ann. =
' =
107.001(1); see also O=3DConnor v.=20
O=3DConnor,=20
BS.W.3dB, No.=20
01-06-00445-CV, 2007 WL 1440990, at *4 (Tex. App.CHouston=20
[1st Dist.] May 17, 2007, no pet. h.) (ABecause=20
the amicus attorney is >to provide=20
legal services to assist the court,=3D =
the trial=20
court is, in effect, the amicus attorney=3Ds client=20
for a limited purpose. But the trial court is not a=20
party . . . .@). =20
The Texas Family Code sets forth the duties of an amicus attorney =
in some=20
detail:
An . . . amicus=20
attorney appointed to assist the court:
(1) =20
shall:
(A) =20
subject to Rules 4.02, 4.03, and 4.04, Texas Disciplinary Rules of =
Professional Conduct, and within a reasonable time after the =
appointment,=20
interview:
(i) =20
the child in a developmentally appropriate manner, if the child is =
four=20
years of age or older;
(ii) =20
each person who has significant knowledge of the child=3Ds history and =
condition,=20
including any foster parent of the child; and
(iii) =20
the parties to the suit;
(B) =20
seek to elicit in a developmentally appropriate manner the=20
child=3Ds expressed =
objectives of=20
representation;
(C) =20
consider the impact on the child in formulating the =
attorney=3Ds presentation of =
the=20
child=3Ds expressed =
objectives of=20
representation to the court;
(D) =20
investigate the facts of the case to the extent the attorney =
considers=20
appropriate;
(E) =20
obtain and review copies of relevant records relating to the child =
as=20
provided by Section 107.006;
(F) =20
participate in the conduct of the litigation to the same extent as =
an=20
attorney for a party;
(G) =20
take any action consistent with the child=3Ds interests that =
the attorney=20
considers necessary to expedite the proceedings;
(H) =20
encourage settlement and the use of alternative forms of dispute=20
resolution; and
(I) =20
review and sign, or decline to sign, a proposed or agreed order =
affecting=20
the child;
(2) =20
must be trained in child advocacy or have experience determined by =
the=20
court to be equivalent to that training; and
(3) =20
is entitled to:
(A) =20
request clarification from the court if the role of the attorney =
is=20
ambiguous;
(B) =20
request a hearing or trial on the merits;
(C) =20
consent or refuse to consent to an interview of the child by =
another=20
attorney;
(D) =20
receive a copy of each pleading or other paper filed with the=20
court;
(E) =20
receive notice of each hearing in the suit;
(F) =20
participate in any case staffing concerning the child conducted by =
an=20
authorized agency; and
(G) =20
attend all legal proceedings in the suit.
Tex.=20
Fam. Code Ann. =
' =
107.003. In addition to these duties, the following =
responsibilities=20
are imposed upon an amicus attorney:
(a) =20
Subject to any specific limitation in the order of appointment, an =
amicus=20
attorney shall advocate the best interests of the child after =
reviewing=20
the facts and circumstances of the case. Notwithstanding =
Subsection=20
(b), in determining the best interests of the child, an amicus =
attorney is=20
not bound by the child=3Ds expressed =
objectives of=20
representation.
(b) =20
An amicus attorney shall, in a developmentally appropriate=20
manner:
(1) =20
with the consent of the child, ensure that the child=3Ds expressed =
objectives of=20
representation are made known to the court;
(2) =20
explain the role of the amicus attorney to the child;
(3) =20
inform the child that the amicus attorney may use information that =
the=20
child provides in providing assistance to the court; =
and
(4) =20
become familiar with the American Bar Association=3Ds standards of =
practice for=20
attorneys who represent children in custody cases.
(c) =20
An amicus attorney may not disclose confidential communications =
between=20
the amicus attorney and the child unless the amicus attorney =
determines=20
that disclosure is necessary to assist the court regarding the =
best=20
interests of the child.
Id. =
' =
107.005. Thus, Collins argues that the trial court was not=20
authorized to appoint Ellis to act as S.E.E.=3Ds next=20
friend, to hire counsel for her, or to be paid for work in other=20
litigation in which she is a party, because these rights and =
duties exceed=20
those authorized by the Family Code. See id. =
' =
107.001(1) (the role of an amicus attorney is to assist the =
court);=20
O=3DConnor, 2007 WL=20
1440990, at *4 (AThe amicus=20
attorney is appointed specifically to assist the court. And the =
plain=20
language of the statutory definition of amicus attorney can mean =
only that=20
the amicus attorney assists the court that appointed [the =
amicus=20
attorney.]@)=20
(emphasis added). We therefore consider the scope of the =
trial=20
court=3Ds=20
authority to appoint an amicus in the manner and with the powers =
at issue=20
here.
3. =20
Scope of Trial Court=3Ds Power to=20
Appoint an Amicus Attorney in a SAPCR
A trial=20
court=3Ds powers=20
to make discretionary appointments are addressed in section =
107.021 of the=20
Texas Family Code:
(a) =20
In a suit in which the best interests of a child are at=20
issue, . . . the court may appoint one =
of the=20
following:
(1) =20
an amicus attorney;
(2) =20
an attorney ad litem; or
(3) a=20
guardian ad litem.
. .=20
.
(b) =20
In determining whether to make an appointment under this section, =
the=20
court:
(1) =20
shall:
(A) =20
give due consideration to the ability of the parties to pay =
reasonable fees to the appointee; and
(B) =20
balance the child=3Ds interests against =
the cost=20
to the parties that would result from an appointment by =
taking into=20
consideration the cost of available alternatives for resolving =
issues=20
without making an appointment;
(2) =20
may make an appointment only if the court finds that the =
appointment is=20
necessary to ensure the determination of the best interests =
of the=20
child, unless the appointment is otherwise required by this code;=20
and
(3) =20
may not require a person appointed under this section to serve =
without=20
reasonable compensation for the services rendered by the =
person.=20
Tex.=20
Fam. Code Ann. =
' =
107.021(emphasis added).
Although=20
intended to protect S.E.E.=3Ds=20
interest, the appointment here was based on incorrect=20
premises:
Court:=20
[W]hat happened is that two parties [i.e., Collins and the=20
Grandparents], neither of whom have any legal right to =
represent this=20
child, I understand have filed lawsuits. Something needs =
to be=20
done to protect this child.@
(emphasis=20
added). But Collins, as S.E.E.=3Ds father,=20
did have the legal right to assert S.E.E.=3Ds claims=20
and was acting as her next friend without charge. And there =
is no=20
finding or evidence that the attorneys he hired acted in a manner =
that=20
failed to protect S.E.E.=3Ds best=20
interests.
Ellis,=20
however, advised the respondent as follows:
Ellis: =
I =20
think one of the problems that they [i.e., counsel retained =
by =20
Collins to represent S.E.E. in the wrongful death suit] =
haven=3Dt foreseen though, Judge, is if they are =
allowed=20
to go forward in their suit and ultimately it is the other party =
[i.e.,=20
the Grandparents] that is granted the right to represent the =
child, then=20
they [i.e., the attorneys] now represent the other party on behalf =
of the=20
child which creates a huge conflict because they=3Dre representing a party who=3Ds in litigation with their former=20
client.
And so, you know, that=3Ds one of the reasons I said - - that I =
put in two=20
paragraphs, No. 1, that the Amicus have [sic] the right to retain =
legal=20
counsel and, No. 2, that for the time being, that that suit should =
be=20
brought as the Amicus as next friend of [sic] and so that we=20
don=3Dt run into conflict problems =
later on when this Court =
ultimately decides which of the parties have the right to go =
forward in=20
litigation.
I=20
don=3Dt want to=20
make the settlement call. I don=3Dt want to=20
make - -I don=3Dt want to=20
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=20
the time being, that=3Ds the way=20
that this should proceed.
The=20
Grandparents similarly assert that by purporting to confer the =
powers at=20
issue on Ellis, Athe Court=20
wisely avoided the conflict which would have occurred if the Court =
had=20
given one of the litigants the immediate right to choose counsel =
and then,=20
after hearing all the evidence, named the [Grandparents] as =
managing=20
conservators . . . .@ =20
They contend that, in those circumstances, they would be =
Aforced to=20
work with counsel who had been adverse to them in these custody=20
proceedings.@ =20
But the=20
trial court=3Ds primary=20
concern must be the child=3Ds best=20
interest, not the interests of the Grandparents. Tex. Fam. Code Ann. =
' 153.002=20
(Vernon 2002). Thus, the trial court could not expand the =
statutory=20
powers of an amicus attorney on this basis. Moreover, the =
conflict=20
described by Ellis and the Grandparents does not exist; there is =
no basis=20
for the suggestion that one of the Grandparents, if given the =
exclusive=20
right to make S.E.E.=3Ds legal=20
decisions, automatically would become a client of the attorneys =
retained=20
by Collins to represent S.E.E. See Urbish, 708 S.W.2d =
at 431=20
n.1 (stating that the Legislature did not intend Ato require=20
that every time you change managing conservators you have to =
change=20
lawyers@).
Collins=3Ds attorney=20
pointed out that Athere=3Ds going to=20
be lots of legal proceedings and this could become [cost] =
prohibitive, not=20
only to my client, but to [the Grandparents] as=20
well . . . .@ But=20
despite the cost, it is clear from respondent=3Ds=20
statements that Ellis was not hired simply to help the court =
determine=20
S.E.E.=3Ds best=20
interests regarding conservatorship and the rights attending=20
conservatorship, but for purposes beyond those authorized by=20
statute:
=20
Court: This Court has a =
lot of=20
respect for Mr. Ellis and the main reason that Mr. Ellis was =
appointed is,=20
not only does he have experience from a family law standpoint,=20
he=3Ds got=20
experience from a personal injury standpoint.
(emphasis=20
added). Moreover, the trial court considered payment from =
settlement=20
of the wrongful death suit rather than the parties=3D =
ability=20
to pay:
Court: I=20
have explained to Mr. Ellis that most of his fee is going to have =
to come=20
out of any settlement. So, I do not intend that this Court =
is going=20
to periodically tap the father or the grandmother for additional=20
fees.
Apparently=20
on Ellis=3Ds=20
recommendation, the trial court ordered Athat for=20
any litigation involving [S.E.E.], the Amicus Attorney shall =
attend all=20
hearings, depositions and trials and shall review all pleadings,=20
correspondence, discovery requests/responses, expert reports and =
other=20
case materials.@ The=20
briefs indicate that, since her mother=3Ds death,=20
S.E.E. has been involved in lawsuits in five courts across two =
counties. =20
But the amicus attorney=3Ds review=20
of all of these documents and attendance at all of these =
depositions,=20
hearings, and trials in the wrongful death cases would incur great =
costs=20
without assisting the trial court to determine S.E.E.=3Ds best=20
interest with regard to conservatorship and without expediting the =
resolution of the conservatorship issues actually presented in =
this case.=20
Although=20
the trial court acted in accordance with the recommendations of =
the amicus=20
attorney appointed to assist the court in determining =
S.E.E.=3Ds best=20
interests, we conclude that the trial court abused its discretion =
in=20
issuing orders that exceeded its authority. And for =
the=20
reasons discussed below, we reject the Grandparents=3D =
arguments=20
that the trial court was authorized by statute, necessity, or by =
its own=20
inherent powers to confer the status of compensated Anext=20
friend@ =
on the=20
amicus attorney.
3. =20
No Basis for Expanding Amicus Attorney=3Ds=20
Authority
The=20
Grandparents argue that section 107.003(1)(G) of the Texas Family =
Code=20
gives the amicus attorney the power to Atake any=20
action consistent with the child=3Ds=20
interests that the attorney considers necessary to expedite the=20
proceedings@ =
and=20
contend that the amicus appointment prevented delay in the =
wrongful death=20
case. But this argument is without merit for several =
reasons. =20
First, under the plain language of the statute, the phrase =
Ato=20
expedite the proceedings@ =20
refers to expediting the SAPCR, not a separate wrongful death =
case. =20
See O=3DConnor, 2007 WL=20
1440990, at *4. Second, the statute does not authorize an =
amicus=20
attorney to expedite a SAPCR by using powers not conferred by =
statute, and=20
the statute does not purport to expand the amicus =
attorney=3Ds powers=20
to allow him to act as S.E.E.=3Ds next=20
friend in other lawsuits, to enter contracts on S.E.E.=3Ds behalf,=20
or to participate in other litigation on S.E.E.=3Ds=20
behalf. See Tex. Fam.=20
Code Ann. '' 107.003,=20
107.005 (Vernon Supp. 2007). Third, the actions ordered by =
the trial=20
court are not Aconsistent=20
with the child=3Ds=20
interests@ =
as=20
required by section 107.003(1)(G), because S.E.E. was already =
represented=20
by counsel in the wrongful death litigation, and Collins could and =
did act=20
as her next friend without charge. =20
Although the Grandparents argue that the trial court needed to =
appoint an=20
amicus attorney to hire counsel to represent S.E.E. because it was =
necessary to obtain an injunction in the wrongful death suit=20
to prevent the destruction of evidence, S.E.E. was already being=20
represented by attorneys hired by her father and attorneys =
hired by=20
her Grandparents. No one contends that these various =
attorneys could=20
not or did not protect her interests =
adequately.
The=20
Grandparents also argue that by declaring Ellis to be =
S.E.E.=3Ds next=20
friend with the right to hire counsel, the trial court ensured =
that=20
counsel would be retained in a timely manner so the personal =
injury=20
litigation could go forward. This presumption, too, is based =
on a=20
false premise, for there was no such issue. Collins had =
immediately=20
retained counsel to assert S.E.E.=3Ds=20
interests, and the record does not reflect that any action by =
respondent=20
was necessary to allow the wrongful death suit to proceed. =
In=20
addition, the Grandparents argue that the trial court has the =
authority to=20
limit the right of a sole managing conservator Aeven to=20
the extent of giving that right to a third party.@ In=20
support of this statement, they rely on sections 153.132 and =
153.371 of=20
the Family Code. See id. '153.132=20
(addressing the rights and duties of a parent appointed as sole =
managing=20
conservator); ' 153.371=20
(addressing the rights and duties of a non-parent sole managing=20
conservator). But neither statute applies here; in fact, =
S.E.E. has=20
never had a sole managing conservator. Moreover, in the =
absence of=20
an order to the contrary, a child=3Ds sole=20
surviving parent can bring suit on the child=3Ds behalf,=20
even though no court order appoints the parent as the sole =
managing=20
conservator. Massey, 822 S.W.2d at 319; see =
also Tex. Prob. Code Ann. =
' =
676(b)=20
(Vernon 2003) (AIf one=20
parent is dead, the survivor is the natural guardian of the person =
of the=20
minor children and is entitled to be appointed guardian of their=20
estates.@).
In similar=20
arguments, the Grandparents contend, and Collins disputes, that =
the trial=20
court has inherent authority to confer the powers at issue on the =
amicus=20
attorney. But A[t]he=20
inherent powers of a court are those which it may call upon to aid =
in the=20
exercise of its jurisdiction, in the administration of justice, =
and in the=20
preservation of its independence and integrity.@ =20
Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex.=20
1979). None of these purposes were served by orders =
purporting to=20
appoint Ellis as S.E.E.=3Ds next=20
friend with the authority to hire counsel on her behalf and to =
charge for=20
the services Ellis performed in attending and reviewing materials =
from the=20
various wrongful death lawsuits involving S.E.E. The trial =
court=20
lacked the power to retain counsel to represent S.E.E. in a =
different suit=20
and could not accomplish the same ends through an amicus =
attorney. =20
See Thomas v. Anderson, 861 S.W.2d 58, 61 (Tex. =
App.CEl Paso=20
1993, no writ).
V. =20
Conclusion
In sum, we=20
conclude the trial court abused its discretion by ordering Collins =
to=20
cease prosecuting S.E.E.=3Ds claims=20
as her next friend and by ordering the amicus attorney to act as=20
S.E.E.=3Ds next=20
friend, to hire counsel to represent her, and to be paid for =
services=20
connected with the various wrongful death suits. We =
therefore=20
conditionally grant Collins=3Ds petition=20
for writ of mandamus directing Judge Kern to reform his prior =
orders as=20
follows:
1. =20
Order Appointing Amicus Attorney, signed May 30, 2007, at 1, =
& 2, changing =
AThe Court hereby =
finds that=20
Amicus Attorney is entitled to reasonable fees and expenses to be =
paid=20
initially by the parties as follows . . . .@ to AThe Court hereby =
finds that=20
Amicus Attorney is entitled to reasonable fees and expenses for =
his=20
services in this modification proceeding, to be paid by the =
parties as=20
follows . . . .@; =
2. =20
Striking paragraphs 3B6 on page 3 of the =
Order=20
Appointing Amicus Attorney, signed May 30, 2007;
3. =20
Striking the following language from page 15, Temporary Orders in =
Suit=20
Affecting the Parent-Child Relationship, signed July 16, =
2007:=20
AIT IS=20
ORDERED that all parties, their agents, and/or legal =
representatives cease=20
any and all personal injury suits filed on behalf of the =
child. IT=20
IS FURTHER ORDERED that CHAD ELLIS, Amicus, shall have the =
exclusive to=20
[sic] right to file suit on behalf of the child subject of this=20
suit.@ =20
We are=20
confident that Judge Kern will make such changes; thus, a writ of =
mandamus=20
will issue only if he declines to do so.
/s/ =20
Eva M. Guzman
Justice
|