Supreme Court of Texas
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No. 20-0328
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In the Guardianship of James E. Fairley
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On Petition for Review from the
Court of Appeals for the Fourth District of Texas
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JUSTICE DEVINE, joined by Justice Blacklock, dissenting.
Today, the Court sanctions an end run around crucial safeguards
the Legislature has enacted to shield proposed wards. Because proper
service on a proposed ward is required whether the ward’s attorney
ad litem generally appears or not, I respectfully dissent.
Proposed wards in guardianship proceedings rank among the
most vulnerable members of our society.1 When determined to be
incapacitated, Texas citizens must relinquish the fundamental “right to
control [their] own property, liberty, and life in order ‘to promote and
1 E.g., In re Thetford, 574 S.W.3d 362, 364 (Tex. 2019) (“A guardian can
provide essential care for the ward. But tragically, wards are also vulnerable
to neglect, abuse, and exploitation.”).
protect [their] well-being.”2 While this tradeoff is often necessary,3 the
importance of the interests at stake demands the utmost rigor.
To that end, the Legislature has erected procedural safeguards to
protect proposed wards,4 including stringent requirements for service of
process. By legislative command, the only persons who may personally
serve a proposed ward are a sheriff, constable, or “disinterested person
competent to make an oath that the citation or notice was served.”5 No
such person served James Fairley,6 but the Court says that’s perfectly
fine. In the Court’s view, “technical defects in service” don’t matter
because Mr. Fairley’s court-appointed attorney ad litem effected a
2 Id. (quoting TEX. EST. CODE § 1001.001(a)).
3 See TEX. EST. CODE § 1001.001(a) (“A court may appoint a
guardian . . . only as necessary to promote and protect the well-being of the
incapacitated person.”); Oyama v. California, 332 U.S. 633, 643-44 (1948) (“The
whole theory of guardianships is to protect the ward during his period of
incapacity to protect himself.”).
4 See, e.g., TEX. EST. CODE §§ 1054.001 (“[T]he court shall appoint an
attorney ad litem to represent the proposed ward’s interests.”), 1101.052 (“A
proposed ward is entitled to a jury trial on request.”), 1101.101(a)(1) (requiring
clear and convincing evidence that the ward is incapacitated), 1104.002 (“[T]he
court shall make a reasonable effort to consider the incapacitated person’s
preference of the person to be appointed guardian and . . . give due
consideration to th[at] preference[.]”).
5 Id. § 1051.051(b). Of course, the Legislature has provided that service
on a proposed ward may be accomplished through both personal service on the
ward and service on the ward’s attorney (which need not be effected in person).
See id. §§ 1051.051(a), .055(c); ante at 27 n.9. But the Court assumes that
James also wasn’t properly served through his attorney ad litem. Ante at 23
n.7. Strict compliance with the heightened service requirements must occur
in some way, but here strict compliance did not occur at all.
6 Ante at 21-23.
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general appearance on his behalf by not objecting to the prospective
guardian’s noncompliance with the statutory requirements.7
In my view, allowing an attorney ad litem to acquiesce to a
violation of the statutory mandate is untenable, especially because a
ward could not do so himself.8 An attorney ad litem’s inaction should
not result in the ward receiving less than the scrupulous service the law
demands. Holding otherwise affords inadequate protection to those
whom the law manifests a clear intent to provide enhanced protection.
While we have set aside statutes for providing less than due process
requires,9 we have never said courts are free to ignore statutory
requirements that go beyond what the Court or the Constitution deems
minimally necessary. If the heightened service requirements the
Legislature enacted are so easy to evade, they are utterly meaningless.
But the words of a statute must mean something. The
Legislature’s requirement that a proposed ward receive personal service
from a sheriff, constable, or disinterested person must advance some
policy objective beyond merely providing the ward with actual notice of
the pending guardianship proceeding. If personal service is all that
7 Id. at 32.
8 See TEX. EST. CODE § 1051.105; cf. In re Guardianship of Erickson,
208 S.W.3d 737, 742-43 (Tex. App.—Texarkana 2006, no pet.) (“The Probate
Code implies that a proposed ward may not waive jurisdictional procedures.”
(citations omitted)).
9See, e.g., Sax v. Votteler, 648 S.W.2d 661, 667 (Tex. 1983) (holding that
a statute violates due process when it abolishes a right to bring a
well-established common-law cause of action without providing a reasonable
alternative).
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matters, as the Court holds, the legislative decree as to who may
effectuate service on a proposed ward is pointless.10
The Court characterizes a deviation from necessary statutory
protections as a mere technicality.11 But the fact that the right person
did not serve Mr. Fairley amounts to something more than a “technical
defect[] in service.”12 Technical defects would not deprive him of
protections the Legislature regarded as crucial for the most vulnerable.
Failing to ensure that the right person served him with notice of the
guardianship proceeding does.13
The heightened safeguards applicable to guardianship
proceedings “protect a person’s liberty and property interests before a
court may take the drastic action of removing [his] ability to make [his]
10 Under the Texas Constitution, due process entails notice and a
hearing at a minimum, but the Legislature may add additional protections it
deems needful—as it did here. Cf., e.g., In re D.T., 625 S.W.3d 62, 69 (Tex.
2021) (“[T]he Texas Legislature chose to afford parents opposing state-initiated
termination proceedings more protection than the United States Constitution
demands.”).
11 See ante at 27-28.
12 Id. at 32.
13 But the law demands strict compliance with even technical
requirements for serving process. For example, we recently vacated a default
judgment where “the trial court’s order authorized substitute service at a
house number on ‘Heathers Hill Drive’ . . . , and the return stated that service
was executed at the same house number but on ‘Heather Hills Drive’ in
Dripping Springs.” Spanton v. Bellah, 612 S.W.3d 314, 318 (Tex. 2020); see id.
at 317 (“Such deviances are certainly not trivial when the trial court has
authorized substitute service.”). If strict compliance is required for a
misspelling even though service was actually made at the defendant’s correct
address, surely it is also required in guardianship proceedings involving a
vulnerable class of people.
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own legal decisions. The consequences are too great to risk []
haphazard” conformity with those protections.14 In blessing less than
strict adherence, the Court’s decision exposes proposed wards to myriad
varieties of chicanery in proceedings where they may be judicially
determined to be incapacitated and incapable of protecting their own
interests.15
The sick, elderly, and debilitated among us require and deserve
meaningful protection. Their rights cannot and should not be sacrificed
at the altar of judicial economy and administrative convenience. What
the Legislature has given them, this Court has no right to take away.
We should hold that a failure to strictly comply with the
heightened service requirements deprives the probate court of
jurisdiction. Because the Court does not, I respectfully dissent.
John P. Devine
Justice
OPINION DELIVERED: March 4, 2022
14Saldarriaga v. Saldarriaga, 121 S.W.3d 493, 499 (Tex. App.—Austin
2003, no pet.).
15 See TEX. EST. CODE § 1101.101(a)(1). All involved in this
guardianship proceeding sought to act in the proposed ward’s best interest,
but, sadly, that is not true of all guardianship proceedings. In other cases, the
consequences flowing from the rule the Court announces today could be grave.
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