Affirmed as Modified and Opinion filed June 21, 2018.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-16-01022-CV


                    IN THE INTEREST OF K.L., A CHILD


                    On Appeal from the 257th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2015-37805


                                  OPINION

      In this appeal, the State of Texas challenges the trial court’s determination that
Government Code chapter 37—pertaining to the appointment of attorneys ad litem,
guardians ad litem, mediators, and guardians—violates the separation of powers
doctrine in the Texas Constitution. The trial court made this ruling at the request of
Beryl and Arnold Tippins, parties to the litigation. The State thereafter intervened to
challenge the ruling, arguing, among other grounds, that the Tippinses lacked
standing to seek the relief granted by the trial court. Because we conclude that the
Tippinses indeed lacked standing to request such relief, we modify the judgment to
vacate the trial court’s ruling that chapter 37 is unconstitutional. We affirm the
judgment as so modified.

                                         Background

       The underlying proceedings involved conservatorship and other issues
pertaining to two minor children. The Tippinses, the children’s maternal
grandparents, initiated the proceedings when they petitioned to be named primary
conservators for the children. They named the children’s parents as respondents,
although, at the time, one child’s father was unknown to the Tippinses and was
served by publication.1 The trial court used the procedures under Government Code
chapter 37 to appoint Laura Arteaga as attorney ad litem for the unknown father. See
Tex. R. Civ. P. 244 (requiring appointment of an attorney to represent a party served
by publication who has not filed an answer or appeared). Among other things,
chapter 37 requires courts in certain counties to create and maintain lists of qualified
people who are registered to serve as attorneys ad litem, guardians ad litem,
mediators, and guardians. See Tex. Gov’t Code §§ 37.001(a), 37.003(a). A court is
permitted to create more than one list, categorized by type of case and qualifications.
Id. § 37.003(b). Courts are then generally required to make such appointments on a
rotating basis from the lists but may disregard the lists and appoint someone agreed
to by the parties or of the court’s own choosing so long as there is a finding of good
cause and an explanation is provided. Id. § 37.004.

       After the appointment of Arteaga, the Tippinses filed a motion to reconsider
her appointment, arguing that chapter 37 violated the separation of powers doctrine
in the Texas Constitution both because it infringes on core judicial powers and its
vague and undefined use of the word “qualified” requires the judiciary to legislate

       1
         The father of the other child is not relevant to this appeal. All references herein to the
“father” are only to the originally unknown father of K.L.

                                                2
in the guise of interpreting the statute. See Tex. Const. art. II, § 1.2 The Tippinses
specifically requested that the court find the statute to be unconstitutional, reconsider
its appointment of Arteaga, and appoint an attorney ad litem without using the
chapter 37 procedures. Notice of the constitutional challenge was duly provided to
the Texas Attorney General’s Office as required by law. See Tex. Gov’t Code §
402.010.

          Before the motion was heard, the mother filed a counter-petition identifying
the child’s father as an “alleged father.” At the hearing on the motion, the father
appeared pro se and Arteaga appeared as attorney ad litem. The State did not appear
or respond to the motion at that time. Following the hearing, the trial court granted
the motion, held that chapter 37 violated the separation of powers doctrine, and
vacated the appointment of Arteaga. The court did not appoint a replacement
attorney ad litem, and the father’s paternity was subsequently established. Several
months later, while the parties were still litigating, the Attorney General’s Office
filed on behalf of the State a petition in intervention and a motion to reconsider the
order and its declaration that the chapter 37 procedures are unconstitutional. The trial
court denied the motion. The trial court thereafter held a trial on conservatorship and
other issues pertaining to the children.

          In its final judgment, the trial court named the Tippinses as the children’s
primary conservators and named the respective parents as possessory conservators.


2
    This provision states:
          The powers of the Government of the State of Texas shall be divided into three
          distinct departments, each of which shall be confided to a separate body of
          magistracy, to wit: Those which are Legislative to one; those which are Executive
          to another; and those which are Judicial to another; and no person, or collection of
          persons, being of one of these departments, shall exercise any power properly
          attached to either of the others, except in the instances herein expressly permitted.
Tex. Const. art. II, § 1.

                                                   3
The State now brings this appeal.

                        The State’s Intervention Was Timely.

      We begin by addressing the Tippinses’ assertion that the State waived its
contentions by failing to timely intervene in the trial court. As noted above, the State
did not appear for the hearing on the Tippinses’ motion to reconsider the
appointment of Arteaga and did not file its own motion to reconsider the granting of
the Tippinses’ motion until several months later. In support of their waiver argument,
the Tippinses cite Texas Rule of Civil Procedure 329b(a), which provides that a
motion for new trial must be filed within 30 days of the order in question. The
Tippinses additionally point out that time is frequently said to be “of the essence” in
cases involving the best interest of children, citing In re Barton, No. 07-08-0123-
CV, 2008 WL 1903483, at *2 (Tex. App.—Amarillo Apr. 30, 2008, orig.
proceeding) (mem. op.) (denying mandamus relief where unexplained delay in
seeking review was “troublesome given that the needs and stability of a child [were]
implicated”).

      In response, the State points out that Texas follows an expansive intervention
policy, permitting any party to intervene in litigation subject to being stricken for
cause, citing State v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015) (citing, in turn, Tex.
R. Civ. P. 60). In Naylor, the court observed that Texas procedural rules do not
impose any intervention deadline but common law has prohibited post-judgment
interventions unless the trial court first sets aside the judgment. Id. (citing First Alief
Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984)). The State additionally notes that
the Tippinses’ reliance on Rule 329b is misplaced as that rule applies to final
judgments and not interlocutory orders such as that at issue here. See, e.g., In re
Fischer, No. 14-11-00482-CV, 2011 WL 2899138, at *2 (Tex. App.—Houston [14th
Dist.] July 21, 2011, orig. proceeding) (mem. op.).

                                            4
       We agree with the State. The Tippinses do not cite any authority, and we have
discovered none, suggesting that the State’s intervention in this case was untimely.
Moreover, the Tippinses are unable to identify any way in which any party was
disadvantaged or prejudiced or any portion of the proceedings was compromised due
to the delayed intervention. Arteaga’s involvement in the litigation effectively ended
with the hearing on the Tippinses’ motion to reconsider, and the trial court did not
appoint a replacement attorney ad litem as the father of the child had made an
appearance in the case. Accordingly, we will consider the merits of the State’s
arguments.3

                             The Tippinses Lacked Standing.

       The State first argues that the trial court should not have even reached the
constitutional issue because the Tippinses lacked standing to challenge the
constitutionality of chapter 37 under the circumstances of this case. We agree.

       Standing is a constitutional prerequisite to suit. Heckman v. Williamson Cty.,
369 S.W.3d 137, 150 (Tex. 2012). It concerns whether a party has a sufficient
relationship with a claim to have a justiciable interest in its resolution. See Austin
Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). Standing is a
question of law subject to de novo review. Heckman, 369 S.W.3d at 150. A court
has no subject matter jurisdiction over a claim made by a party that lacks standing
to assert that claim. Id. If a party lacks standing, the trial court must dismiss the
claim. Id. at 150–51.

       For a party to have standing to raise a claim, (1) the party must have an injury

       3
          The Tippinses additionally suggest that Government Code section 402.010—the statute
requiring notice to the Attorney General’s Office before a court holds a statute unconstitutional—
is itself unconstitutional, citing Ex parte Lo, 424 S.W.3d 10, 28, 30 (Tex. Crim. App. 2013).
However, subsequent constitutional amendments abrogated Ex Parte Lo. See Tex. Const. art. V, §
32 (effective November 30, 2017). We therefore do not address the merits of this argument.

                                                5
in fact, i.e., a concrete and particularized injury that is actual or imminent and not
hypothetical; (2) the injury must be fairly traceable to the action complained of; and
(3) the injury must be likely to be redressed by the requested relief. See Heckman,
369 S.W.3d at 155. More specifically, to establish standing to challenge the
constitutionality of a statute, a party must have suffered some actual or threatened
injury under the statute that unconstitutionally restricts its own rights. See Barshop
v. Medina Cty. Underground Water Conservation Dist., 925 S.W.2d 618, 626 (Tex.
1996); Allstate Indem. Co. v. Mem’l Hermann Health Sys., 437 S.W.3d 570, 577
(Tex. App.—Houston [14th Dist.] 2014, no pet.).

       The State asserts that the Tippinses had no “concrete and particularized,”
“actual or imminent” injury from the appointment of an ad litem using chapter 37
procedures such that would give them standing to challenge the constitutionality of
the chapter in this case. The State emphasizes that the ad litem was appointed to
represent an opposing party (the then unnamed father of one of the children) and
thus the Tippinses could not be injured in a concrete and particularized way by the
manner of the ad litem’s appointment.

       The Tippinses base their standing argument on two grounds, asserting they
had a justiciable interest in the appointment process because (1) they could
potentially be required to pay the ad litem’s fees as costs, see Rhodes v. Cahill, 802
S.W.2d 643, 647 (Tex. 1990) (explaining that a successful party may be required to
pay an attorney ad litem’s fees as costs pursuant to Tex. R. Civ. P. 244), and (2) the
ad litem would be involved in a case to determine the best interests of their
grandchildren, see Lowe v. Lowe, 971 S.W.2d 720, 725 (Tex. App.—Houston [14th
Dist.] 1998, pet. denied) (noting the best interests of the child are of paramount
importance in suits affecting the parent-child relationship). We take these arguments
in turn.

                                          6
       First, the fact that the Tippinses could be required to pay the ad litem’s fees is
not an injury or threatened injury traceable to the method of the ad litem’s
appointment. In other words, the Tippinses could be required to pay those fees
without regard to the process of ad litem appointment. See Barshop, 925 S.W.2d at
626 (requiring party contesting constitutionality of statute to have suffered some
actual or threatened injury under the statute); Allstate Indem., 437 S.W.3d at 577
(same); see also Rhodes, 802 S.W.2d at 647 (explaining that ad litem fees under Tex.
R. Civ. P. 244 should be taxed as costs of the case); Garza v. Slaughter, 331 S.W.3d
43, 46-48 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (reversing trial court’s
refusal to order successful party to pay ad litem’s fees as costs under Rule 244).4

       In support of their second ground, concerning best interests of the children,
the Tippinses urge that the chapter 37 procedures unnecessarily hamper the trial
court’s ability to match an appropriate attorney ad litem with the circumstances
presented in a given case. They additionally assert that, as the child’s grandparents,
they have an interest in assuring that an appropriate ad litem is appointed to represent
the unknown father. We disagree that these considerations establish an injury in fact
to the Tippinses, i.e., a concrete and particularized injury that is actual or imminent
and not merely hypothetical. See Heckman, 369 S.W.3d at 155. Although, as stated
above, the best interests of the child are of paramount importance in suits affecting
the parent-child relationship, see Texas Family Code section 153.002 and Lowe, 971
S.W.2d at 725, the primary duty of an attorney ad litem appointed pursuant to Rule
244 is to represent the interests of the unserved party. See Cahill v. Lyda, 826 S.W.2d
932, 933 (Tex. 1992); see also Harris Cty. Children’s Protective Servs. v. Olvera,
77 S.W.3d 336, 341 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (“The role

       4
         A successful party is further protected from unreasonable or excessive fees by the
requirement that such fees must be reasonable and necessary. See Rhodes, 802 S.W.2d at 646–47;
Garza, 331 S.W.3d at 47-48.

                                              7
of an attorney ad litem is, like every attorney, to pursue, protect, and defend the
interests of his or her client.”). The Tippinses have not alleged a sufficient interest
in the representation of an opposing party in the litigation to give them standing to
contest how that representation is accomplished. Cf. Anderson Producing Inc. v.
Koch Oil Co., 929 S.W.2d 416, 424 (Tex. 1996) (holding movant on motion to
disqualify lacked standing to challenge adequacy of opposing counsel’s client’s
consent to representation). To hold otherwise would offend the principles of our
adversarial system. See generally Sacks v. Zimmerman, 401 S.W.3d 336, 342 (Tex.
App.—Houston [14th Dist.] 2013, pet. denied) (explaining that under our adversarial
system, Texas courts have consistently resisted attempts by parties to litigation to
hold opposing counsel liable for actions taken during the litigation even if frivolous
or without merit).

       The Tippinses lacked standing to challenge the constitutionality of
Government Code chapter 37 under the circumstances of this case. Accordingly, the
trial court lacked subject matter jurisdiction to consider the Tippinses’ constitutional
claim. See Heckman, 369 S.W.3d at 150. We therefore sustain the State’s first issue.5

                                          Conclusion

       Because we conclude that the Tippinses lacked standing to challenge the
constitutionality of chapter 37 under the circumstances of this case, we modify the
judgment to vacate the trial court’s ruling that chapter 37 is unconstitutional. We
affirm the judgment as so modified. See Doan v. TransCanada Keystone Pipeline,
LP, 542 S.W.3d 794, 797, 809 (Tex. App.—Houston [14th Dist.] 2018, no pet.)
(modifying judgment to vacate certain rulings for lack of jurisdiction and affirming
remainder of judgment); Human Biostar, Inc. v. Celltex Therapeutics Corp., 514

       5
         We received two amicus curiae briefs in this case; however, since neither brief addressed
the standing issue, we need not discuss the arguments raised in those briefs.

                                                8
S.W.3d 844, 846–47 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)
(permitting challenge to interlocutory order in appeal from final judgment).




                                      /s/       Martha Hill Jamison
                                                Justice



Panel consists of Justices Jamison, Busby, and Donovan.




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