                                 NUMBER 13-11-00287-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI – EDINBURG

                   IN THE INTEREST OF X.L.S., A MINOR CHILD


                  On appeal from the County Court at Law No. 1
                          of Cameron County, Texas.


                             MEMORANDUM OPINION
                  Before Justices Rodriguez, Garza, and Perkes
                     Memorandum Opinion by Justice Garza

        Appellant Nora Lopez, mother of X.L.S., a minor child, appeals from the denial of

a statutory bill of review filed to set aside an order appointing appellee Arnoldo Argullin,

X.L.S.’s great-grandfather, as X.L.S.’s permanent guardian. See TEX. PROB. CODE ANN.

§ 657 (West 2003).1 Appellant contends that the statutory bill of review should have

been granted to correct the trial court’s substantial error in appointing Argullin as

        1
           Section 657 of the probate code provides that an interested person may file a bill of review to
revise or correct an erroneous decision, order, or judgment rendered by a court in a guardianship
proceeding within two years of the decision. See TEX. PROB. CODE ANN. § 657 (West 2003). We note that
Argullin did not file a brief to assist us in our disposition of this appeal.
permanent guardian. By three issues, appellant contends the trial court erred by: (1)

appointing Argullin as permanent guardian when he had not filed an application for

permanent guardianship; (2) appointing a non-parent as X.L.S.’s guardian without a

showing of necessity; and (3) entering a judgment against her when she was a minor at

the time of the guardianship proceeding and was not represented by a next friend or

guardian ad litem. We reverse and remand to the trial court.

                                            I. BACKGROUND

        On May 21, 2008, when X.L.S. was approximately seven months old, Argullin

filed an application for appointment as X.L.S.’s temporary guardian. See id. § 875

(West Supp. 2011). On the same day, the trial court appointed Argullin as X.L.S.’s

temporary guardian.

        On September 9, 2008, the trial court held a hearing to consider the necessity for

the continuation of Argullin’s appointment as temporary guardian. Argullin, who was

represented by counsel, and his wife appeared at the hearing. Appellant appeared pro

se and Aaron Sillero, X.L.S.’s father, appeared pro se. During the hearing, Argullin’s

counsel asked whether appellant and Sillero agreed with confirming Argullin’s

appointment as X.L.S.’s temporary guardian. Appellant said, “No.” Sillero said he and

appellant were “trying to get [their] son back.” Several times throughout the hearing,

there were references to Argullin’s application for appointment as temporary guardian.

For example, Argullin’s counsel stated, “Mr. Arguillin [sic], you are asking the Court to

confirm your appointment as temporary guardian of [X.L.S.] . . . ?” Shortly thereafter,

appellant appeared to agree only to temporary guardianship.2 The trial court stated,


        2
         Specifically, appellant stated, “I agree that she can take care of him temporarily, but as far as—”
Although appellant did not specify the identity of “she” in this statement, we assume she was referring to

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“Well, we’re just asking for temporary guardianship right now.” Immediately thereafter,

Argullin’s counsel stated, “We are, Your Honor, although we had previously asked that

the Court convert it to permanent, but we’ll take that up at the conclusion of the hearing,

if necessary.”      Shortly thereafter, X.L.S.’s guardian ad litem noted, “And this is

temporary guardianship.”

         At the conclusion of the hearing, Argullin’s counsel presented the trial court with

two proposed orders:        one confirming Argullin as temporary guardian and one

appointing him as permanent guardian.         The trial court stated that it was granting

permanent guardianship.        The trial court signed an order appointing Argullin as

permanent guardian that same day, September 9, 2008.

         On September 7, 2010, appellant filed a statutory bill of review, contending that

the order appointing Argullin as X.L.S.’s permanent guardian should be set aside

because:       (1) her due process rights were violated and (2) she had a meritorious

defense to Argullin’s appointment as permanent guardian because she was X.L.S.’s

natural parent. On March 22, 2011, the trial court held a hearing on appellant’s bill of

review.     Both appellant and Argullin were represented by counsel. At the hearing,

appellant’s counsel complained that:        (1) Argullin had only applied for temporary

guardianship, but was appointed as permanent guardian; (2) appellant had no notice of

the September 9, 2008 hearing; and (3) appellant was prevented from presenting a

meritorious defense because she was a minor at the time of the guardianship hearing

and was not represented by a next friend or guardian ad litem. The trial court stated

that it had no intention of removing X.L.S. from Argullin’s care because X.L.S. was

being taken care of and was doing well. When appellant asked to address the court,

Argullin’s wife.

                                              3
the court refused, noting that it was not concerned with her or Argullin, but with the best

interest of X.L.S. On April 11, 2011, the trial court signed an order denying appellant’s

bill of review.

        Pursuant to appellant’s request, on May 2, 2011, the trial court issued findings of

fact and conclusions of law. Among the findings of fact was that, at the guardianship

hearing on September 9, 2008, neither Argullin nor anyone else prevented appellant

from asserting a defense. In its conclusions of law, the trial court found, among other

things, that appellant had not shown any meritorious defense to Argullin’s appointment

as permanent guardian of X.L.S. This appeal followed.

                          II. STANDARD OF REVIEW AND APPLICABLE LAW

        In an appeal from the denial of a statutory bill of review, an appellate court

determines whether (1) an interested person (2) filed a timely bill of review, and (3)

showed substantial error. See Buck v. Estate of Buck, 291 S.W.3d 46, 53 (Tex. App.—

Corpus Christi 2009, no pet.).3             The record reflects that appellant timely filed her

statutory bill of review within two years of the trial court’s order, see TEX. PROB. CODE

ANN. § 657, and because she is X.L.S.’s natural parent, she is an interested party. See

id. § 601(15) (West Supp. 2011) (“‘Interested persons’ or ‘persons interested’ means . . .

a person interested in the welfare of an incapacitated person, including a minor.”).

Therefore, we must determine only whether she proved that substantial error was

committed by the trial court. See TEX. PROB. CODE ANN. § 657.



        3
          We note that both appellant’s petition for bill of review and the trial court’s findings of fact and
conclusions of law appear to confuse the standard applicable to an equitable bill of review with the
standard applicable to a statutory bill of review. “A statutory bill of review[—as here—]need not conform
to the rules and is not limited by the restrictions of an equitable bill of review.” Buck v. Estate of Buck,
291 S.W.3d 46, 53 (Tex. App.—Corpus Christi 2009, no pet.).

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         We review a trial court’s conclusions of law de novo. Nadolney v. Taub, 116

S.W.3d 273, 280 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). The standard of

review for conclusions of law is whether they are correct.               Id.   We will uphold

conclusions of law on appeal if the judgment can be sustained on any legal theory the

evidence supports. Id.

                                        III. DISCUSSION

A.       Jurisdiction

         By her first issue, appellant contends that: (1) the trial court lacked jurisdiction to

appoint a permanent guardian for X.L.S. when Argullin had not filed an application for

permanent guardianship; and (2) the trial court violated appellant’s due process rights

by granting an order unsupported by the pleadings. We begin by addressing appellant’s

sub-issue that the trial court lacked jurisdiction to appoint a permanent guardian for

X.L.S.

         Appellant argues that the trial court lacked jurisdiction to appoint a permanent

guardian because it failed to comply with the statutory requirements of the probate code

regarding appointment of a permanent guardian. Appellant relies on In re Erickson, 208

S.W.3d 737, 740 (Tex. App.—Texarkana 2006, no pet.), which held that compliance

with the probate code requirement of a ten-day waiting period following an application

for guardianship was jurisdictional. See id. at 741 (“Any attempt by the trial court to

exercise the special power of appointment of a guardian without compliance with

express statutory jurisdictional provisions is a nullity.”).

         Since Erickson, however, the Texas Supreme Court has held that a mandatory

statutory requirement is presumed not to be jurisdictional, and that such a presumption



                                                5
may be “overcome only by clear legislative intent to the contrary.” City of Desoto v.

White, 288 S.W.3d 389, 394 (Tex. 2009); see also In the Guardianship of the Person &

Estate of Jordan, 348 S.W.3d 401, 409 (Tex. App.—Beaumont 2011, no pet.) (holding

that strict compliance with probate code requirements regarding guardianship

appointment was not jurisdictional).          Appellant complains that the trial court lacked

jurisdiction because Argullin failed to comply with the probate code requirements to

obtain permanent guardianship, including the requirement to submit a written

application for permanent guardianship, see TEX. PROB. CODE ANN. § 682 (West Supp.

2011), and the requirement to serve appellant and Sillero with notice of such an

application, see id. § 633.4 We presume that the statutory requirements of the probate

code identified by appellant are not jurisdictional, see City of Desoto, 288 S.W.3d at

394, and appellant has not shown such a presumption to be overcome by “clear

legislative intent to the contrary.” See id. We conclude that any failure by Argullin to

comply with the statutory requirements of the probate code did not deprive the trial court

of jurisdiction. We overrule appellant’s first sub-issue regarding jurisdiction.

B.      Relief Unsupported by Pleadings

        By the second sub-issue of her first issue, appellant argues that the trial court

deprived her of her due process right to notice by granting relief—permanent

guardianship to Argullin—that was not requested by the pleadings. Appellant argues

that because Argullin’s application sought only temporary guardianship, she had no




        4
         We note that both sections 633 and 682 have been recently amended and the present case is
governed by the prior versions of the statutes. See Act of June 17, 2011, 82nd Leg., R.S., ch. 599, § 6,
2011 Tex. Sess. Law Serv. (West 2011). Because the amendments are not material to any issue before
us, however, we cite to the current versions of the statutes.

                                                   6
notice that Argullin sought permanent guardianship until the end of the hearing when

the trial court announced it was appointing Argullin as X.L.S.’s permanent guardian.

       We agree that the trial court committed substantial error by granting relief that

was not supported by the pleadings.         As noted above, several times during the

guardianship hearing, Argullin’s counsel, the trial court, and X.L.S.’s guardian ad litem

specifically stated that the issue was confirmation of Argullin’s appointment as

temporary guardian. It is undisputed that Argullin’s application requested only that he

be appointed as X.L.S.’s temporary guardian.        Although Argullin’s counsel made a

vague reference at the hearing regarding a previous request that the court convert the

temporary guardianship to permanent guardianship, the record contains no application

for permanent guardianship, and nothing suggests that appellant had notice that

Argullin’s appointment as X.L.S.’s permanent guardian was before the trial court. See

In re A.B.H. & L.N.H., 266 S.W.3d 596, 601 (Tex. App.—Fort Worth 2008, no pet.)

(finding that trial court abused its discretion in appointing appellee as sole managing

conservator where appellee had only requested appointment as joint managing

conservator and parties did not understand that issue was before the trial court); In re

B.M., 228 S.W.3d 462, 465 (Tex. App.—Dallas 2007, no pet.) (finding that trial court

abused its discretion in rendering final order on custody when motion to modify

requested only temporary relief); see also In re J.A.L., K.D.L., & M.R.L, No. 02-10-374-

CV, 2012 Tex. App. LEXIS 2060, at *7 (Tex. App.—Fort Worth March 15, 2012, no pet.)

(mem. op.) (holding that trial court abused its discretion by granting appellee more relief

than she requested in her pleadings). Thus, we conclude that the trial court abused its

discretion by appointing Argullin permanent guardian of X.L.S. Accordingly, appellant



                                            7
proved the substantial error element of her statutory bill of review, and the trial court

erred in denying her bill of review. See Buck, 291 S.W.3d at 53. We sustain appellant’s

second sub-issue of her first issue.5

                                          IV. CONCLUSION

       We reverse the trial court’s denial of appellant’s bill of review and remand to the

trial court for further proceedings consistent with this opinion.




                                                       DORI CONTRERAS GARZA
                                                       Justice

Delivered and filed the
18th day of October, 2012.




       5
         Having sustained this dispositive issue, we need not address appellant’s remaining issues. See
TEX. R. APP. P. 47.1.

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