                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-08-00343-CV

                IN THE MATTER OF THE GUARDIANSHIP
                        OF KEVIN R. GORDON



                             From the County Court
                           McLennan County, Texas
                         Trial Court No. 20040038 GDN


                         MEMORANDUM OPINION


      Rhonda Taylor was appointed guardian of the person for her adult son, Kevin R.

Gordon, by the county court. Gordon was subsequently incarcerated. Taylor filed a pro

se motion for temporary and mandatory injunctive relief in the guardianship

proceeding against the Texas Department of Criminal Justice and the University of

Texas Medical Branch, alleging violations of Gordon’s constitutional rights on grounds

that he is not receiving proper medical care. The county court denied the motion for

lack of “jurisdiction in this matter.” On appeal, Taylor challenges the denial of her

motion. We reverse and remand.
       The county court has subject matter jurisdiction over matters related to the

guardianship, including writs of injunction; thus, the county court had subject matter

jurisdiction to consider Taylor’s motion.1 See TEX. PROB. CODE ANN. § 606(b) (Vernon

Supp. 2008); see also TEX. GOV’T CODE ANN. § 26.051 (Vernon 2004); In re Guardianship of

Glasser, No. 04-07-00559-CV, 2009 Tex. App. LEXIS 2680, at *14 (Tex. App.—San

Antonio Jan. 30, 2009, no pet. h.); Coleson v. Bethan, 931 S.W.2d 706, 714 (Tex. App.—Fort

Worth 1996, no pet.). Because the trial court has subject matter jurisdiction to consider

Taylor’s motion, we reverse and remand for further proceedings consistent with this

opinion.




                                                               FELIPE REYNA
                                                               Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray dissenting with note)*
Reversed and remanded
Opinion delivered and filed July 15, 2009
[CV06]

*    (Chief Justice Gray dissents. A separate opinion will not issue. He notes,
however, that based on the record presented to this Court, Taylor, purporting to act as
Gordon’s guardian or next friend, sought to enjoin the Texas Department of Criminal

1
         We note that TDCJ and UTMB have not been served with citation and the motion for temporary
and mandatory injunctive relief in the guardianship proceeding. See Werner v. Colwell, 909 S.W.2d 866,
869 (Tex. 1995) (“Judgment shall not be rendered against one who was neither named nor served as a
party defendant.”); see also Strawder v. Thomas, 846 S.W.2d 51, 61 (Tex. App.—Corpus Christi 1992, no
pet.); Landry v. Burge, No. 05-99-01217-CV, 2000 Tex. App. LEXIS 6606, at *6-7 (Tex. App.—Dallas Oct. 2,
2000, no pet.) (not designated for publication). We also note that a previously filed lawsuit by Gordon
against TDCJ and UTMB, involving the same allegations, is currently pending in United States District
Court for the Southern District of Texas, Houston Division, Civil Action No. H-06-2790.


In re Gordon                                                                                     Page 2
Justice and University of Texas Medical Branch,1 and inject herself into the medical
treatment being provided to inmate Gordon after he was incarcerated and subject to the
care, custody, and control of the State of Texas. It is clear that the probate court of
McLennan County has no jurisdiction over the State of Texas, TDCJ, or the Assistant
Attorney General representing the State of Texas, none of which have been served in
the probate proceeding, to enjoin them from the operations of the care and treatment of
an incarcerated person, Gordon. It is also clear from the record that Taylor is
represented in her capacity as guardian of Gordon by very capable counsel in federal
court litigation, in which the issue of the propriety of the State’s medical treatment of
Gordon is being litigated. It is further clear from the record that her request to file civil
litigation as next friend of Gordon was denied on March 9, 2007 and she did not appeal
that order.
        Additionally, the trial court’s order is not entirely clear or consistent. It
concludes it does not have jurisdiction in “this matter” but does not define what “this
matter” consists of. The trial court then “denied” the requested relief. This ruling is
inconsistent with a determination that it has no jurisdiction at all in the guardianship
proceeding. However, this ruling is entirely consistent with the determination it has no
jurisdiction over the nature of the relief sought or the parties against whom the relief
was sought.
        Finally, I note, based on the record before us, appellant has been ordered to not
file any more pleadings in her name. However, it is unclear whether this applies only
to the litigation in federal court, or in any court.
        In conclusion, while there may be an issue or question about what the trial court
meant by a recital in its ruling that it had no jurisdiction of the matter, it is very clear
that the trial court did not err when it denied appellant’s motion. For the foregoing
reasons, I respectfully dissent.)




1
         I note that if the State and UTMB had been properly served, appellant has not shown how the
trial court would have had jurisdiction over them – in essence a waiver of sovereign immunity.


In re Gordon                                                                                 Page 3
