law-judicial-admission


Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000) (a judicial admission may be
made in live pleadings);  Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001)
(a judicial admission may also be made in a response to a motion or counter-motion).  The judicial
admission, however, must be clear and unequivocal.  See Holy Cross Church of God in Christ, 44
S.W.3d at 568.  We do not believe this statement is so unequivocal as to constitute a judicial
admission.


A judicial admission is "a 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 "respect"
all rulings of the court.  Moreover, Collins's counsel further stated that "we 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 "the 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.
In Re Collins (Tex. App.- Houston [14th Dist.] Dec. 17, 2007)(Guzman)
(amicus attorney, representation of minor in wrongful death action involving mother, grandparents vs.
surviving parent, father)
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)