in the Guardianship of Shelley Thomson A/ka Shelley Sue Thomson, an Incapacitated Person

NUMBER 13-20-00381-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN THE GUARDIANSHIP OF SHELLEY THOMSON
A/K/A SHELLEY SUE THOMSON, AN INCAPACITATED PERSON

On appeal from the County Court at Law
of Comal County, Texas.

MEMORANDUM OPINION
Before Justices Benavides, Longoria, and Tijerina
Memorandum Opinion by Justice Tijerina

Selene Smith attempts to appeal the trial court’s ruling in this appeal. We dismiss.1

See TEX. R. APP. P. 43.2.

1 This case was severed from appellate cause 13-19-00517-CV, which was transferred from the
Third Court of Appeals in Austin to this Court pursuant to a docket equalization order issued by the Supreme
Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
 The trial court appointed appellee the Texas Health & Human Services

Commission (the Commission) Thomson’s permanent guardian on May 23, 2019 after

conducting a hearing regarding Thomson’s health issues. Smith was not a party to the

May 23 order. On June 17, 2019, Philip Ross filed a notice of appearance2 asserting that

Thomson had hired her to represent him in this matter and a verified motion for temporary

restraining order and temporary injunction asking that the trial court issue an injunction

allowing Thomson to access “her home, income, automobile and her personal property,

to prevent interference with her normal daily activities by her guardian, and to have the

fullest access to supports and services in the social settings that she prefers in order to

fully exercise her rights to health maintenance and restoration.” Ross also requested that

the trial court grant a temporary injunction to allow Thomson to among other things chose

her attorney. Smith was not a party. The trial court denied the motion.

On June 20, 2019, Ross filed a motion for new trial and/or reconsideration on

behalf of Thomson requesting an independent medical exam and for the trial court to set

aside its May 23 order. In the motion, Thomson argued, among other things, that there

was no evidence to support the trial court’s determination that she lacked capacity, the

Commission was violating her rights, and she had been misdiagnosed by the doctor who

found her to be incompetent. Smith was not a party to this motion. The June 20 motion

2 On July 1, 2019, the Commission filed a motion to show authority alleging that Thomson lacked
capacity to hire Ross as her attorney and that the May 23 order prohibited the filing of a petition for
adjudication that a guardianship is no longer needed within a period of one year from the date of the May
23 order without special leave of the trial court. The Commission requested a hearing so that Ross could
appear and show his authority to serve as Thomson’s attorney. Ross filed a reply to the motion to show
authority. The trial court granted the Commission’s motion on July 17, 2019 because the trial court had
determined that Thomson lacked the capacity to enter a contract and construed the pleading as a complaint.

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for new trial was overruled by operation of law.

On October 3, 2019, Joann Rivera represented by Ross filed a notice of

appearance stating that she was available and willing to be appointed Thomson’s

successor guardian and requesting for the trial court to find that she was qualified and

that it is in Thomson’s best interest that she be appointed successor guardian. On October

31, 2019, the trial court denied the relief requested by Rivera. 3 Smith attempted to

intervene; however, the trial court did not rule on the motion, and Smith was not a party

to the October 31 order. This appeal followed.

On December 15, 2020, we notified Smith that her notice of appeal was defective

for failure to comply with rule of appellate procedure 25.1. See TEX. R. APP. P. 25.1

(providing that only a party may file a notice of appeal); In re Lumbermens Mut. Cas. Co.,

184 S.W.3d 718, 723 (Tex. 2006) (providing that only parties of record may appeal a trial

court’s judgment). We further notified Smith that unless she cured the defect within ten

days, we would dismiss the appeal. Smith filed a response on December 28, 2020.

However, Smith has not cured the defect.

Therefore, this appeal is dismissed for failure to comply with Texas Rules of

Appellate Procedure 25.1. Accordingly, we DISMISS the appeal without addressing the

merits.4 Having dismissed the appeal, no motion for rehearing will be entertained, and

3 In the order, the trial court found that Ross did not have the certification required to serve as
Thomson’s court-appointed attorney pursuant to the estate code. See TEX. ESTATE CODE ANN. § 1054.201.
The trial court further found that Rivera’s application to serve as Thomson’s guardian was not in compliance
with § 1203.151 of the estate code because Thomson’s guardian, the Commission, had not filed a notice
of availability of successor guardian. See TEX. ESTATE CODE ANN. § 1203.151.
4 To the extent that Smith wishes to appeal the May 23, July 17, and August 19 orders, we DISMISS
those attempted appeals because Smith is not a party.

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our mandate will issue forthwith.

JAIME TIJERINA
Justice

Delivered and filed on the
21st day of January, 2021.

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