Opinion issued August 4, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00788-CV
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DONALD GAUCI, Appellant
V.
KATHRYN WOESSNER GAUCI, Appellee
On Appeal from the Probate Court No. 2
Harris County, Texas
Trial Court Case No. 430,385
OPINION
This is an appeal from an order appointing appellee Kathryn Woessner
Gauci as the sole guardian of her son. On appeal, the ward’s father, Donald Gauci
argues that the guardianship order is void because neither he nor the ward was
personally served in the suit and because the court did not hold a hearing on the
guardianship application. Kathryn contends that neither personal service nor a
hearing were required under the expedited provisions of Chapter 1103 of the Texas
Estates Code, which provides for appointment of a guardian for an incapacitated
minor who would require guardianship as an adult.
Because the ward was not personally served, the court lacked jurisdiction,
and we therefore vacate the guardianship order.
Background
Kathryn and Donald were divorced in 2011 and named joint managing
conservators of their three children, including their son, M.G., who is autistic. Two
days before M.G.’s eighteenth birthday, Kathryn filed an application to become his
permanent guardian. The Estates Code includes a procedure for appointing a
guardian to a minor who, because of incapacity, will require a guardianship after
he turns 18. See TEX. EST. CODE § 1103.001. The statute authorizes a court to
appoint a guardian without holding a hearing when the proposed ward is a
“disabled child” and the proposed guardian is a conservator of the child. Id.
§ 1103.002. Kathryn sought appointment as M.G.’s guardian under this provision,
and she provided letters from a psychologist and a psychiatrist who had evaluated
M.G. and opined that a partial guardianship was warranted.
Neither M.G. nor Donald was personally served with citation of the
guardianship application. Without holding a hearing on the application, the trial
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court determined that M.G. was incapacitated and in need of a guardianship. It
appointed Kathryn as his guardian.
One month later, Donald filed a bill of review, a motion to set aside the
guardianship, and a motion for new trial. He argued that he and M.G. were denied
due process because they were not personally served with citation of Kathryn’s
application for guardianship. He also argued that the lack of service deprived the
court of jurisdiction. Finally, Donald argued that Kathryn was not entitled to use
the expedited guardianship procedure in Section 1103 because M.G. had not been
adjudicated a “disabled child.”
The trial court denied the requested relief, but it also recognized a potential
problem. The judge orally ordered “another hearing to determine the advisability
of the guardianship” after getting “everybody personally served.” The appellate
record does not show whether the further proceedings anticipated by the trial court
ever took place. Instead, Donald appealed.
Analysis
The purpose of a guardianship is “to promote and to protect the well-being
of the incapacitated person,” and when less than full guardianship is appropriate,
“the court shall design the guardianship to encourage the development or
maintenance of maximum self-reliance and independence in the incapacitated
person.” TEX. EST. CODE § 1001.001. Because “a person’s liberty interest is
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implicated in guardianship proceedings,” In re Guardianship of Hahn, 276 S.W.3d
515, 517 (Tex. App.—San Antonio 2008, no pet.), the Estates Code sets out
“uniform, strict procedural safeguards to protect a person’s liberty and property
interests before a court may take the drastic action of removing [his] ability to
make [his] own legal decisions.” Saldarriaga v. Saldarriaga, 121 S.W.3d 493, 499
(Tex. App.—Austin 2003, no pet.).
In his first issue, Donald argues that the court’s order is void because the
court lacked jurisdiction over M.G. Because a trial court’s subject-matter
jurisdiction is a question of law, we review this issue de novo. See Tex. Natural
Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); accord In
re Guardianship of Erickson, 208 S.W.3d 737, 740 (Tex. App.—Texarkana 2006,
no pet.).
“Before a court may enter judgment against a party, the court must have
obtained jurisdiction over that party pursuant to applicable rules or statutes.”
Whatley v. Walker, 302 S.W.3d 314, 321 (Tex. App.—Houston [14th Dist.] 2009,
pet. denied). A judgment rendered by a trial court that lacks jurisdiction over the
parties or subject matter is void. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 272
(Tex. 2012); Erickson, 208 S.W.3d at 740; In re Guardianship of B.A.G., 794
S.W.2d 510, 511–12 (Tex. App.—Corpus Christi 1990, no writ). A judgment that
is void is “entirely null within itself, not binding on either party, [and] . . . not
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susceptible of ratification or confirmation.” See Brazzel v. Murray, 481 S.W.2d
801, 803 (Tex. 1972) (quoting Murchison v. White, 54 Tex. 78 (1880)). “[A]
judgment is void if the defects in service are so substantial that the defendant was
not afforded due process.” PNS Stores, 379 S.W.3d at 275.
Due process requires notice “at a meaningful time and in a meaningful
manner” that would enable a party to be bound by a court’s judgment to have an
opportunity to be heard. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86, 108 S.
Ct. 896, 899 (1988); accord Univ. of Tex. Med. Sch. v. Than, 901 S.W.2d 926, 930
(Tex. 1995). “[A] judgment entered without notice or service is constitutionally
infirm.” Peralta, 485 U.S. at 84, 108 S. Ct. at 899; see In re Guardianship of
Jordan, 348 S.W.3d 401, 405 (Tex. App.—Beaumont 2011, no pet.) (“The
constitutional right to due process of law restricts the ability of a court to render a
judgment binding a party without proper notice.”).
In satisfaction of these well-understood due process concerns, Chapter 1051,
Subchapter C of the Estates Code imposes notice and citation requirements
generally applicable to guardianship proceedings. “On the filing of an application
for guardianship, notice shall be issued and served as provided by this subchapter.”
TEX. EST. CODE § 1051.101(a). The Estates Code specifically provides that the
“sheriff or other officer shall personally serve citation to appear and answer an
application for guardianship on . . . a proposed ward who is 12 years of age or
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older.” Id. § 1051.103(a). Failure to personally serve an application for
guardianship on a proposed ward deprives the court of jurisdiction. See Erickson,
208 S.W.3d at 740; accord Whatley, 302 S.W.3d at 321. Furthermore, the person
filing an application for guardianship is also required to “mail a copy of the
application and a notice containing the information required in the citation issued
under Section 1051.102 by registered or certified mail, return receipt requested, or
by any other form of mail that provides proof of delivery, to . . . each of the
proposed ward’s parents . . . .” TEX. EST. CODE § 1051.104(a)(9).
It is undisputed that M.G. was not personally served with citation of
Kathryn’s application for guardianship before the trial court entered its order
appointing her as guardian. Accordingly, we conclude that the court lacked
personal jurisdiction over M.G. at that time it appointed appointed Kathryn as
guardian.
Kathryn argues that the requirements of Section 1103.002 (“Appointment of
Conservator as Guardian Without Hearing”) stand alone and may be applied
independently of any other requirement in the Estates Code because the statute
begins with the phrase: “Notwithstanding any other law.” See id. § 1103.002(a). To
the extent Kathryn reads this phrase to excuse her from the ordinary procedural
requirements that affected parties receive notice and an opportunity to be heard, we
reject that contention both as a matter of statutory interpretation and as a matter of
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due process. Section 1103.002(a)’s reference to the “other law” trumped by the
special Chapter 1103 procedure for appointing a guardian for certain minors
requiring guardianship as adults is far more plausibly understood to reference other
guardianship appointment procedures, such as the general procedure for
appointment of a guardian detailed in Estates Code Chapter 1101. The structure of
the Estates Code’s guardianship provisions under Title 3 includes an overarching
set of general provisions for notice and process in all guardianship proceedings,
found in Chapter 1051. Section 1103.002 authorizes the appointment of a
conservator as guardian without a hearing, “[n]otwithstanding any other law,” such
as other guardianship appointment procedures that do require a hearing. See, e.g.,
id. § 1055.051(a) (precluding consideration by submission of contested Title 3
motions or any “application for the appointment of a guardian”). It makes little
sense to understand the reference “[n]otwithstanding any other law” to dispense
also with the generally applicable provisions for notices and process, particularly
considering the due process rights that are protected by such provisions. To the
extent there could be any ambiguity in the matter, we presume statutes to be
constitutionally valid, and if possible we interpret a statute so as to avoid
constitutional infirmities. See, e.g., Barshop v. Medina Cnty. Underground Water
Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996); Antonin Scalia & Bryan A.
Garner, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 66–68 (2012).
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Simply put, a guardianship statute cannot eliminate the need for a court to establish
in personam jurisdiction over the ward before rendering judgment binding a party,
nor can it dispose of an individual’s right to have a meaningful opportunity to be
heard when his liberty interests are at stake. Cf. PHC-Minden, L.P. v. Kimberly-
Clark Corp., 235 S.W.3d 163, 174 (Tex. 2007) (“[P]ersonal jurisdiction involves
due process considerations that may not be overridden by statutes or the common
law.”). And we do not read Chapter 1103 to include any such impermissible
procedure.
Having found that the trial court lacked personal jurisdiction over M.G., we
hold that the guardianship order in this case is void. We sustain Donald’s first
issue, and in light of this disposition, we need not address the parties’ other
arguments.
Conclusion
We vacate the guardianship order and render judgment dismissing the case
for lack of personal jurisdiction.
Michael Massengale
Justice
Panel consists of Chief Justice Radack and Justices Higley and Massengale.
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Donald Gauci v. Kathryn Woessner Gauci
Combined Opinion