                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-09-133-CV


ESTATE OF JASON RANDALL
FREDERICK, DECEASED

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           FROM PROBATE COURT NO. 2 OF TARRANT COUNTY

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                                   OPINION

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      After a jury trial in a probate proceeding, the trial court assessed costs

and attorney ad litem fees against Appellant Anieca Frederick, and she now

appeals from that assessment. In one issue, she argues that the trial court

abused its discretion by taxing the ad litem fees as costs against her rather than

against her son’s estate. Because we hold that the trial court did not abuse its

discretion, we affirm.

      Anieca’s son Jason Randall Frederick died on March 13, 2008. He was

survived by A.F., his minor child.     Samantha Petty, A.F.’s mother, filed a
petition in probate court for declaratory relief to have her status as surviving

spouse established, to determine heirship, and to be appointed as administratrix

of Jason’s estate. Anieca subsequently filed her application for appointment

of administratrix, contested Samantha’s amended application for appointment

of administratrix, and requested the court to determine heirship.

      On April 1, 2008, the trial court sua sponte appointed Ross Griffith as

attorney ad litem for Jason’s “unknown heirs, missing heirs, nonresident heirs,

unborn or unascertained heirs, heirs with legal disability, minor heirs and/or

incapacitated heirs.” On June 23, 2008, Samantha filed a motion asking the

court to require Anieca to give security for costs, arguing that Anieca’s contest

would greatly increase the ad litem fees incurred in the case. The trial court

entered an order requiring both Anieca and Samantha to post security of

$5,000.

      In October 2008, the trial court entered an agreed partial judgment

declaring that A.F. was Jason’s only child and his “statutory heir at law.”

Thus, the only contested issues remaining were whether Samantha was

Jason’s common-law wife and whether Samantha or Anieca should be

appointed adminstratrix of Jason’s estate.




                                       2
      Griffith subsequently filed a motion for additional security for costs. The

court granted the motion, requiring both Anieca and Samantha to post an

additional $5,000.

      Anieca filed a motion for summary judgment. Griffith requested that the

court grant the motion and declare that there was no common-law marriage

between Jason and Samantha. The court denied the motion.

      The matter proceeded to trial, at which the jury found that Samantha was

married to Jason at the time of his death. In accordance with this verdict, the

trial court declared Samantha to be the surviving spouse and Jason’s lawful

heir. The court also appointed Samantha as administratrix of Jason’s estate.

      Following the jury trial, Griffith filed an application for payment of fees

and expenses, requesting $217.56 in expenses and $28,946.50 in fees. The

court entered an order finding that Griffith was appointed to serve as attorney

ad litem; that the services Griffith rendered on A.F.’s behalf were necessary;

and that Griffith’s expenses and fees in the total amount of $25,000 were

reasonable and just. Finding Samantha to be the prevailing party, the court

taxed these costs against Anieca under rule 131 of the rules of civil procedure.

Anieca then filed this appeal.

      Anieca does not appeal the part of the judgment finding Samantha to be

Jason’s surviving spouse. In her sole issue, Anieca contends that the trial court

                                       3
abused its discretion by taxing costs against her.       She argues that under

probate code section 34A 1 and Ajudani v. Walker, 2 an opinion from the First

Court of Appeals, the trial court should have assessed Griffith’s fees against

Jason’s estate.

         The provisions regulating costs in ordinary civil cases apply in probate

proceedings except for matters for which the probate code has an express

provision. 3 Probate code section 34A provides that in a probate proceeding, the

probate judge may appoint an attorney ad litem to represent a person having a

legal disability. 4 This section further provides that “[e]ach attorney ad litem

appointed under this section is entitled to reasonable compensation for services

in the amount set by the court and to be taxed as costs in the proceeding.” 5




         1
              Tex. Prob. Code Ann. § 34A (Vernon 2003).
         2
              232 S.W.3d 219, 224 (Tex. App.—Houston [1st Dist.] 2007, no
pet.).
         3
              Tex. Prob. Code Ann. § 12(a) (Vernon 2003).
         4
         Id. § 34A; see also Austin Nursing Ctr, Inc. v. Lovato, 171 S.W.3d
845, 849 (Tex. 2005) (noting that “minors . . . are considered to be under a
legal disability”).
         5
              Tex. Prob. Code Ann. § 34A.

                                          4
The statute does not specify against whom these costs must be assessed. In

a civil case, the assessment of costs is within the trial court’s discretion. 6

      Anieca argues that the legislative history of section 34A demonstrates

that the legislature intended for these costs to be assessed against the estate.

The legislature adopted section 34A in 1983. The “digest” section of a bill

analysis from the House Study Group (now the House Research Organization) 7

states that an attorney or guardian appointed under the statute “would be




      6
         See Tex. R. Civ. P. 131 (“The successful party to a suit shall recover
of his adversary all costs incurred therein, except where otherwise provided”);
Tex. R. Civ. P. 141 (“The court may, for good cause, to be stated on the
record, adjudge the costs otherwise than as provided by law or these rules.”);
Crescendo Invs., Inc. v. Brice, 61 S.W.3d 465, 480 (Tex. App.—San Antonio
2001, pet. denied) (“The assessment of costs will be reversed on appeal only
if the trial court abused its discretion.”); see also Suiter v. Woodard, 635
S.W.2d 639, 641 (Tex. App.—Waco 1982, writ ref’d n.r.e.) (“Normally the
taxing of an attorney ad litem fee for minor parties is in the discretion of the
trial court.”); Lofton v. Norman, 508 S.W.2d 915, 922 (Tex. Civ. App.—Corpus
Christi 1974, writ ref’d n.r.e.) (“Allowance of an attorney fee for an attorney
ad litem, the amount of the fee, and against whom the fee shall be taxed are
matters within the discretion of the trial court.”).
      7
         This independent administrative department of the Texas House of
Representatives provides objective information to House members about
legislation and issues that are before the Texas Legislature. See House
R e s e a r c h     O r g a n i z a t i o n ,   A b o u t    t h e    H R O ,
http://www.hro.house.state.tx.us/frame6.htm (last visited Apr. 8, 2010);
Legislative     R eference     L ib r a r y of  Texas,    Research    Tools,
http://www.lrl.state.tx.us/research/billsearch/help.cfm (last visited Apr. 8,
2010).

                                        5
entitled to court-determined fees, which would be charged against the estate.” 8

The Ajudani court relied on this language in reaching its holding that costs

assessed under section 34A should be assessed against the estate. 9          An

analysis of the same bill by the committee on judicial affairs contains no

language suggesting against whom the court-determined fees should be

assessed. 10 We note that the probate code has been amended a number of

times since the legislature enacted section 34A, and the legislature has never

added language expressly providing that costs under section 34A should be

assessed against the estate, even though it used such language in the section

of the code relating to guardianship matters. 11

      We may consider legislative history when construing a statute, even if the

statute is not ambiguous on its face. 12 But we must presume that when the

legislature excludes words from a statute, it does so purposely; we may insert



      8
       House Study Group, Bill Analysis, Tex. H.B. 266, 68th Leg., R.S.
(1983).
      9
           See Ajudani, 232 S.W.3d at 224.
      10
         House Comm. on Judicial Affairs, Bill Analysis, Tex. H.B. 266, 68th
Leg., R.S. (1983).
      11
        Tex. Prob. Code Ann. § 669 (Vernon 2003) (providing that in a
guardianship matter, the cost of the guardian ad litem shall be paid out of the
guardianship estate if the estate is sufficient to pay the costs).
      12
            Tex. Gov’t Code Ann. § 311.023 (Vernon 2005).

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additional words only when necessary to give effect to clear legislative intent. 13

When a statute is clear and unambiguous, we may not use legislative history

to alter or disregard its express terms or contradict its plain meaning. 14 That is,

when a statute’s text is clear, the text is determinative of legislative intent. 15

      Section 34A omits any express provision specifying which party or parties

may be ordered to pay attorney ad litem fees. Section 12(a) states that

provisions regulating costs in ordinary civil cases apply when the probate code

does not otherwise expressly provide. 16 Under the rules of civil procedure,

costs are generally assessed in favor of the successful party and against the

non-prevailing party, but the court may assess costs differently for good cause




      13
        In re M.N., 262 S.W.3d 799, 802 (Tex. 2008); Cameron v. Terrell
& Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981).
      14
         Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.
1999) (stating that legislative history “cannot be used to alter or disregard the
express terms of a code provision when its meaning is clear from the code
when considered in its entirety, unless there is an error such as a typographical
one”); N.P. v. Methodist Hosp., 190 S.W.3d 217, 222 (Tex. App.—Houston
[1st Dist.] 2006, pet. denied) (stating that courts may not use legislative history
to contradict the plain meaning of a statute).
      15
        Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.
2009) (op. on reh’g).
      16
            Tex. Prob. Code Ann. § 12(a).

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stated on the record. 17    Because section 34A clearly omits any express

provision regulating costs for appointments under that section, the language of

section 34A shows the legislature’s intent that provisions regulating costs in

ordinary civil cases apply to the assessment of attorney ad litem fees as costs

under that section.18 Perhaps the legislature left the assessment of costs to the

trial court’s discretion because it contemplated the possibility that parties

arguing over an estate could unnecessarily prolong litigation, thereby increasing

an ad litem’s fees and depleting the estate. Regardless of whatever reason we

could assign to the legislature for drafting the text as it did, because the text

of section 34A is clear and determinative, we respectfully disagree with the

holding of our sister court and decline Anieca’s request that we use legislative

history to alter section 34A. We hold that the trial court did not abuse its



      17
         Tex. R. Civ. P. 131, 141; see also In re Estate of Russell, No.
08-07-00187-CV, 2009 WL 3855950, at *6 (Tex. App.—El Paso Nov. 18,
2009, no pet.) (affirming trial court’s award, under rule 131, of costs against
executor individually, rather than against the estate, in favor of party who
successfully contested a will); Ray v. McFarland, 97 S.W.3d 728, 730–31
(Tex. App.—Fort Worth 2003, no pet.) (reversing trial court’s failure to award
costs under rule 131 to the successful party in a will contest); but see Ex’rs of
Tartt’s Estate v. Harpold, 531 S.W.2d 696, 698 (Tex. Civ. App.—Houston
[14th Dist.] 1976, writ ref’d n.r.e.) (stating that fee for attorney ad litem
representing the decedent’s unknown heirs “may be ordered paid out of the
assets of the estate as costs”).
      18
       See Entergy Gulf States, 282 S.W.3d at 437; In re M.N., 262
S.W.3d at 802; Cameron, 618 S.W.2d at 540.

                                       8
discretion by applying the provisions regulating costs that govern ordinary civil

proceedings and assessing costs against Anieca. 19 We overrule Anieca’s sole

issue.

         Having overruled Anieca’s sole issue, we affirm the judgment of the trial

court.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.

DELIVERED: April 8, 2010




         19
         See Tex. R. Civ. P. 131, 141; see also Roberts v. Williamson, 111
S.W.3d 113, 124 (Tex. 2003) (holding that trial court had failed to show good
cause on the record to assess guardian ad litem fees against the successful
party); Guerra v. Perez & Assocs., 885 S.W.2d 531, 533–34 (Tex. App.—El
Paso 1994, no writ) (holding that the trial court abused its discretion by
assessing as costs against the successful party one-half of the fee of court-
appointed surveyor without stating good cause for doing so); Dover Elevator
Co. v. Servellon, 876 S.W.2d 166, 169 (Tex. App.—Dallas 1993, no pet.)
(stating that the trial court was not authorized to assess guardian ad litem fees,
which are taxed as costs, against the prevailing party absent good cause shown
on the record).

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