                                      NO. 07-01-0446-CV

                                IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                         AT AMARILLO

                                            PANEL C

                                   NOVEMBER 9, 2001
                            ______________________________

                                    In re DWAIN KUHLER,

                                                  Relator
                          _________________________________

                       ORIGINAL PROCEEDING FOR MANDAMUS
                         _______________________________

Before QUINN, REAVIS, and JOHNSON, JJ.

       Pending before the court is the petition for writ of mandamus filed by Dwain Kuhler.

The latter seeks an order directing the Honorable Paula Lanehart, County Court at Law

No. 3, Lubbock County, to afford him 1) a jury trial upon the issue of whether a temporary

guardian should be appointed over the person of Hilda Frances Kuhler and 2) due

process. So too does he request that we declare the temporary guardianship laws

unconstitutional. For the reasons which follow, we deny the writ.

       Jury Trial

       Section 21 of the Probate Code states that in “all contested probate and mental

illness proceedings . . . the parties shall be entitled to trial by jury as in other civil actions.”

It is this provision which Kuhler believes entitled him to a jury trial. However, statute



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pertaining to the appointment of a temporary guardian declares that the court shall appoint

same if after conducting a hearing under §875(f)(1) “the court determines that the applicant

has established” the requisite grounds. TEX . PROB . CODE ANN . §875(g) (Vernon Supp.

2001) (emphasis added). Nowhere in either §875(g) or any other part of §875 did the

legislature mention the right to a trial by jury. Again, it directed the “court” to assess

whether the prerequisites for such an appointment have been met. And, to the extent that

it used the word “court” and because we must assign words in a statute their plain

meaning, see TEX . GOV ’T. CODE ANN ., §312.002(a) & (b), one cannot reasonably argue that

he has a right to have a jury decide same.

       Simply put, while §21 of the Probate Code deals with the resolution of contested

issues in general, §875 specifically controls the appointment of an interim or temporary

guardian. And, where there may be an apparent conflict between the two provisions, the

statute dealing with the specific topic controls over the other. See Holmes v. Morales, 924

S.W.2d 920, 923 (Tex. 1996) (holding that statutes governing specific issues control over

statutes governing general matter when an apparent conflict exists). So, because §875(g)

governs the specific topic of appointing a temporary guardian and it states that the “court”

must determine the need for same, Kuhler was not entitled to a jury trial.

       Finally, our holding comports not only with authority applicable to analogous

situations but also §21 of the Probate Code. As to the former, it is clear that one has no

right to have a jury determine whether a temporary injunction should issue. Loomis Intern’l

Inc. v. Rathburn, 698 S.W.2d 465, 468-69 (Tex. App.–Corpus Christi 1985, no writ). This

is so because the proceeding is interlocutory in nature, Campbell v. Peacock, 176 S.W.


                                             2
774, 777 (Tex. Civ. App.–San Antonio 1915, no writ), and juries decide ultimate issues of

fact. Alamo Title Co. v. San Antonio Bar Assoc., 360 S.W.2d 814, 816 (Tex. Civ.

App.–Waco 1962, writ ref’d. n.r.e.). Because the proceeding is interlocutory, the findings

made by the trial court viz the decision to grant a preliminary injunction are not conclusive

of the ultimate factual disputes.     Rather, the court merely decides if some judicial

intervention is needed to protect a litigant while the controversy winds its way to final

adjudication by the ultimate fact-finder. The situation is no different when a temporary

guardian is sought. Much like a temporary injunction, a temporary guardian may be

appointed only when imminent danger of injury to one’s health, safety or property exists

and immediate action is needed to ameliorate the danger. TEX . PROB . CODE ANN . §875(g).

Furthermore, and again like a temporary injunction, the effectiveness of the interlocutory

act dissipates upon final resolution of the ultimate dispute. See id. at §875(k) (stating that

the term of the temporary guardian expires at the conclusion of the hearing challenging or

contesting the application or on the date a permanent guardian appointed by the court

qualifies as same). So, to the extent that the appointment of a temporary guardian is

comparable to the issuance of a temporary injunction, it is reasonable to treat the two alike

when it comes to the availability of a jury. Thus, one has no right to have a jury determine

whether a temporary guardianship should be appointed.

       And, as to our decision’s comportment with §21, it must be remembered that the

provision entitles one to a jury “as in other civil actions.” Given that juries are unavailable

when interlocutory relief is sought in other civil actions (such as one for injunctive relief),

they are unavailable here as well. So, our holding comports with §21.


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       Constitutionality of the Temporary Guardianship Statutes

       Mandamus will issue only if 1) the trial court clearly abused its discretion or violated

a duty imposed by law and 2) the complainant has no adequate legal remedy. In re Daisy

Mfg. Co., 17 S.W.3d 654, 658 (Tex. 2000). Implicit within this standard is the need for the

court to have acted in a matter considered objectionable. Here, Kuhler provided us with

neither an order nor evidence illustrating that the trial court addressed and rejected his

contention regarding the constitutionality of temporary guardianships.

And, to the extent that the trial court did not address the contention, we cannot hold that

it clearly abused its discretion or violated a duty imposed by law.

       Furthermore, one seeking mandamus relief must provide the court with clear and

concise argument for the contentions made with citation to authority and the record or

appendix. TEX . R. APP . PROC . 52.3 (h).     This duty entails more than proffering mere

conclusions. Rather, the relator must provide substantive analysis or discussion of the

facts and authorities relied upon, Howell v. Murray Mortgage Co., 890 S.W.2d 78, 81 (Tex.

App.–Amarillo 1994, writ denied) (applying Rule 74(f) of the rules of appellate procedure

which rule is identical to Rule 52.3(h)), especially when broaching issues of constitutional

magnitude. Bullard v. State, 891 S.W.2d 14, 15 (Tex. App.–Beaumont 1994, no pet.).

Here, the sum of Kuhler’s argument consisted of his merely 1) stating that “[b]ased upon

the facts of this case, due process was clearly violated by the trial court” and 2) quoting

three sentences from Krause v. White, 612 S.W.2d 639 (Tex. App.–Houston [14th Dist.]

1981, writ ref’d n.r.e.). No substantive analysis was offered.


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        Nor do we consider the quotation of an excerpt from Krause as adequate substitute

for such missing analysis.              This is so because the allusion, in Krause, to the

constitutionality of temporary guardianships was clearly dicta and that dicta related to

sections of the Probate Code other than §875. Having failed to address the constitutional

status of temporary guardianships after the 1993 enactment of §875 (the provision under

which the trial court at bar acted), the dicta recited in Krause and relied upon by Kuhler is

of little use at bar.1

        In short, Kuhler provided neither argument nor applicable authority illustrating why

temporary guardianships authorized by §875 of the Probate Code were unconstitutional.

Consequently, he failed to comply with Rule 52.3(h) and waived the contention.

        Due Process

        As previously mentioned, mandamus can issue only when a clear abuse of

discretion has occurred and the applicant lacks adequate legal remedy. In re Daisy Mfg.

Co., supra. Moreover, the burden lies with the relator or applicant to satisfy both elements.

In re Carter, 958 S.W.2d 919, 922 (Tex. App. - Amarillo 1997, no pet.). Here, Kuhler did

not argue that he lacked adequate legal remedy. He simply contends that the trial court

violated due process in purportedly denying him opportunity to present evidence at the

interim hearing. To the extent that he makes no effort to illustrate the want of adequate

legal remedy, it cannot be said that he carried his burden.



        1
         We view the comments in Krause regarding the constitutionality of temporary guardianships as
dicta because the appellate panel there held that it had no jurisdiction to entertain the appeal. And, to the
extent that it had no jurisdiction over the appeal, it surely had no jurisdiction to substantively comment upon
anything other than jurisdiction.

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        Second, rule of procedure obligates an applicant for writ of mandamus to verify all

factual allegations contained in his petition. TEX . R. APP . PROC . 52.3. The petition of

Kuhler is replete with factual allegations, not the least of which is that the trial court

conducted no evidentiary hearing before confirming its prior appointment of a temporary

guardian.2 Nor did Kuhler attach a transcription of the hearing which Kuhler indicates was

convened by the court before issuing the order in dispute. Had such a transcription been

provided, we could have overlooked the failure to verify the petition and assessed the

accuracy of the factual allegations. Yet, without either, we have no competent evidence

supporting his allegations. In short, it appears that something happened at the hearing

from which this mandamus arose. And, before we can determine whether what transpired

effectively denied anyone due process, we would have to know what process, if any, was

given. Without a transcription of the hearing for us to peruse or comparable, probative

evidence illustrating what happened, we can hardly conclude that what occurred at the

hearing resulted in the deprivation of any due process to which Kuhler may have been

entitled.

        Third, it is well settled that before one is entitled to due process, he must have a

property right or liberty interest subject to loss or injury. University of Texas Medical


        2
          While Kuhler suggests that those seeking the appointment of the temporary guardian presented no
evidence at the hearing supporting their claim, he nevertheless states that the court heard from “one unsworn
witness.” So too does he state that he “presented a Declaration of Guardianship to the [trial] [c]ourt.” To the
extent that information or documentation was presented to the trial court for its consideration, it would be
imperative for Kuhler to present us with a transcription of the hearing at which that information was offered.
“[I]n determining whether mandamus should issue, we cannot plumb the subjective reasoning of the trial
court. We must focus on the record that was before the court and whether the decision was not only arbitrary
but also amounted ‘to a clear and prejudicial error of law.’” In re Bristol-Myers Squibb Co., 975 S.W.2d 601,
604-605 (Tex. 1998). This is especially so when, as here, we are left guessing at what occurred at and the
nature of the hearing.

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School v. Than, 901 S.W.2d 926, 929 (Tex. 1995) (stating that the review of a due process

claim begins with determining whether the complainant has a liberty or property interest

entitled to protection). The existence of such a property right or liberty interest goes

unmentioned by Kuhler. The latter simply asserts that he was denied due process. In

failing to argue and establish that he enjoyed such a right or interest and that the trial

court’s actions deprived him of same, the prerequisites for issuing mandamus went

unsatisfied.3

        For the foregoing reasons, we deny the petition for writ of mandamus.



                                                                              Brian Quinn
                                                                                 Justice

Publish.




        3
          The failure to discuss the existence of a right or interest is of particular import here given that §875
speaks of according the respondent or potential ward the opportunity to receive prior notice of the hearing,
legal representation, opportunity to present evidence and confront witnesses, and the opportunity to close
the proceedings. TEX. PROB . CODE ANN. §875(f)(1) (Vernon Supp. 2001). In creating this distinct
interlocutory procedure the legislature said nothing of affording third-parties over whom a temporary guardian
was being appointed opportunity to appear and dispute the application. And, while we do not hold that such
third-parties cannot intervene, Kuhler’s addressing that issue was imperative since one of the opposing
parties argued in its brief that he had no such right.

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