                                             OPINION
                                         No. 04-11-00058-CV

                            IN THE GUARDIANSHIP OF V.A., a Minor

                          From the Probate Court No. 1, Bexar County, Texas
                                    Trial Court No. 2010-PC-2075
                           Honorable Polly Jackson Spencer, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: May 16, 2012

AFFIRMED

           Appellants Pedro A. Sr. and Pedro A. Jr. bring a restricted appeal challenging the probate

court’s appointment of appellee David Balmer as guardian of V.A.’s estate. Appellants contend

the probate court lacked jurisdiction to appoint Balmer because the probate court did not comply

with the notice requirements of Texas Probate Code section 633. We affirm the probate court’s

order.

                                            BACKGROUND

           V.A. was severely injured in a car accident that took the lives of her brother, his

girlfriend, and their son. Prior to the accident, V.A. was living with her now-deceased brother

because her biological parents’ rights to her had been terminated more than a year prior to the
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accident. While V.A. was receiving treatment for her accident injuries, another one of her

brothers, Rogelio, initiated guardianship proceedings seeking appointment of David Balmer as

guardian of her estate.       V.A. was personally served with the application.          Neither V.A.’s

biological father, Pedro Sr., nor her other brother, Pedro Jr., was personally served, and the

restricted appellate record does not show that they were given notice by mail. Balmer pursued

V.A.’s claim and obtained a settlement against the trucking company involved in the accident.

The probate court approved the settlement, and a management trust was created to protect V.A.’s

estate.

          Pedro Sr. and Pedro Jr. now bring a restricted appeal challenging the probate court’s

jurisdiction to appoint Balmer as guardian of V.A.’s estate and all orders following the

appointment.

                  COMPLIANCE WITH SECTION 633 OF THE TEXAS PROBATE CODE

A. Standard of Review of a Restricted Appeal

          An appellant bringing a restricted appeal can prevail only if:

          (1) it filed notice of the restricted appeal within six months after the judgment was
          signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the
          hearing that resulted in the judgment complained of and did not timely file any
          postjudgment motions or requests for findings of fact and conclusions of law; and
          (4) error is apparent on the face of the record.

Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per curiam); accord

Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004) (citing TEX. R. APP. P. 26.1(c),

30). For purposes of a restricted appeal, “the face of the record” refers to “all the papers on file

in the appeal, including the reporter’s record.” Norman Commc’ns v. Tex. Eastman Co., 955

S.W.2d 269, 270 (Tex. 1997) (per curiam). The face of the record is limited to documents that

were before the court at the time a challenged order was signed. See Gen. Elec. Co. v. Falcon



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Ridge Apartments, Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991); Tankard–Smith, Inc. Gen.

Contractors v. Thursby, 663 S.W.2d 473, 476 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d

n.r.e.).

           The only restricted-appeal requirement at issue is whether error is apparent on the face of

the record. 1

B. Texas Probate Code Section 633

           Appellants contend the probate court lacked jurisdiction to appoint Balmer because the

court failed to comply with the mandatory requirements of section 633. Specifically, appellants

contend (1) Pedro Sr. was not personally served with the application of guardianship and

citation, (2) the Texas Department of Family and Human Resources (TDFHR), V.A.’s managing

conservator, was not personally served, (3) Pedro Jr. was not served by mail with the application

and citation, (4) the administrator of University Hospital, Bexar County, Texas, the facility in

which V.A. resided, was not served, and (5) the probate court failed to wait until the first

Monday following a ten-day period commencing with the service, notice, and affidavit

requirements of section 633 to appoint Balmer as guardian. See TEX. PROB. CODE ANN. § 633

(West Supp. 2011). 2

           Section 633 provides the notice and citation requirements and procedures for filing an

application for guardianship. See id. This section provides for different methods of service or

notice based on a particular person’s relationship to the proposed ward. See id. Subsection (c)




1
  Appellants filed a motion to strike documents outside the restricted record. Pursuant to General Electric, we will
consider only documents and testimony before the probate court on the date of Balmer’s appointment. See Gen.
Elec., 811 S.W.2d at 944.
2
  Recent amendments to section 633 apply only to guardianship proceedings commenced on or after September 1,
2011; thus, they are not applicable to this restricted appeal. See Act of June 17, 2011, 82d Leg., R.S., ch. 599, §§ 6
13, 2011 Tex. Sess. Law Serv. 1448, 1450 (amending subsection (b) and adding subsection (c–1) of section 633 and
establishing the effective date of the changes).

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prioritizes certain groups of people and requires personal service of citation upon them;

specifically, it provides:

        (c) The sheriff or other officer shall personally serve citation to appear and answer
        the application for guardianship on:
              (1) a proposed ward who is 12 years of age or older;
              (2) the parents of a proposed ward if the whereabouts of the parents are
              known or can be reasonably ascertained; [and]
              (3) any court-appointed conservator or person having control of the care and
              welfare of the proposed ward . . . .

Id. § 633(c)(1)–(3). Subsection (d) applies to a different group of people and provides:

        (d) The applicant shall mail a copy of the application for guardianship and a
        notice containing the information required in the citation issued under Subsection
        (b) of this section by registered or certified mail, return receipt requested, or by
        any other form of mail that provides proof of delivery, to the following persons, if
        their whereabouts are known or can be reasonably ascertained:
              (1) all adult children of a proposed ward;
              (2) all adult siblings of a proposed ward;
              (3) the administrator of a nursing home facility or similar facility in
              which the proposed ward resides; . . . .

Id. § 633(d)(1)–(3). Subsection (f) further distinguishes groups in subsections (c) and (d) and

states, “The validity of a guardianship created under this chapter is not affected by the failure of

the applicant to comply with the requirements of Subsections (d)(2)–(9) of this section.” Id.

§ 633(f).

C. Analysis

        “The failure of a jurisdictional requirement deprives the court of the power to act (other

than to determine that it has no jurisdiction), and ever to have acted, as a matter of law.” City of

DeSoto v. White, 288 S.W.3d 389, 393 (Tex. 2009) (citation and internal quotation marks

omitted). A reviewing court applies statutory construction principles in determining whether a

statute’s requirements are jurisdictional. City of DeSoto, 288 S.W.3d at 394. See generally TEX.

GOV’T CODE ANN. ch. 311 (West 2005 & Supp. 2011) (“Code Construction Act”). “[T]he



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modern direction of policy is to reduce the vulnerability of final judgments to attack on the

ground that the tribunal lacked subject matter jurisdiction”; therefore, we analyze a statutory

provision under the presumption that the legislature did not intend to make the provision

jurisdictional. City of DeSoto, 288 S.W.3d at 393–94 (quoting Dubai Petroleum Co. v. Kazi, 12

S.W.3d 71, 76 (Tex. 2000)). A number of factors are considered, but we begin with the statute’s

text. Id. at 395. However, the fact that a statute’s requirements are mandatory does not, by

itself, make the requirements jurisdictional. Id. We also examine “‘the presence or absence of

specific consequences for noncompliance’ in determining whether a provision is jurisdictional.”

Id. at 396 (quoting Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex. 2001)). Finally, we

examine the resulting consequences from each possible interpretation. Id. (citing Helena Chem.,

47 S.W.3d at 495).

       1. Pedro Sr.

       The restricted appellate record shows that Pedro Sr.’s parental rights regarding V.A. had

been terminated before Rogelio initiated the guardianship proceeding. The court investigator’s

report specifically stated, “The biological parents of [V.A.] previously had their parental rights

terminated.” The termination of the parent-child relationship divested Pedro Sr. of all legal

rights and duties with respect to V.A. See TEX. FAM. CODE ANN. § 161.206 (West 2008).

Therefore, Pedro Sr. was not entitled to personal service of the application of guardianship. Cf.

In re Lambert, 993 S.W.2d 123, 132 (Tex. App.—San Antonio 1999, orig. proceeding) (“[T]he

trial court correctly dismissed biological mother’s post-termination motion to modify

conservatorship because she ‘has no justiciable interest in the subject matter in litigation’”

(quoting Glover v. Moore, 536 S.W.2d 78, 80 (Tex. Civ. App.—Eastland 1976, no writ))).




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       2. V.A.’s Managing Conservator, TDFHR

       Appellants assert that because TDFHR, V.A.’s managing conservator, was not personally

served, the probate court’s order appointing Balmer as guardian of V.A.’s estate is void. It is

undisputed that TDFHR was given notice of the proceedings, but it was not served in compliance

with section 633(c)(3).

       Generally, a party lacks standing to assert a due process violation based on improper

service of another party. See Sw. Constr. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859,

864 (Tex. App.—Texarkana 2005, pet. denied); cf. Warth v. Seldin, 422 U.S. 490, 499 (1975)

(“[T]he plaintiff generally must assert his own legal rights and interests, and cannot rest his claim

to relief on the legal rights or interests of third parties.”). Additionally, an appealing party “may

not complain of errors which do not injuriously affect him or which merely affect the rights of

others.” Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87, 92 (Tex. 1973); see In re M.C.R.,

55 S.W.3d 104, 107 (Tex. App.—San Antonio 2001, no pet.).               Appellants have made no

argument and cite no authority to support that these general rules do not apply to them, nor have

the appellants shown how their interests have been affected by failure to serve TDFHR.

Accordingly, appellants cannot complain of improper service upon TDFHR. See Warth, 422

U.S. at 499; Jackson, 499 S.W.2d at 92; Sw. Constr. Receivables, 162 S.W.3d at 864.

       3. Pedro Jr.

       Appellants assert the probate court’s appointment of Balmer was void because Pedro Jr.

was not given notice pursuant to section 633(d)(2), which requires notice be given to “all adult

siblings of a proposed ward.” See TEX. PROB. CODE ANN. § 633(d)(2). However, the Code

specifically provides, “The validity of a guardianship created under this chapter is not affected

by the failure of the applicant to comply with the requirements of Subsections (d)(2)–(9) of this



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section.” Id. § 633(f). Because Pedro Jr. belongs to the class of persons listed in (d)(2), we will

not reverse the probate court’s appointment of Balmer based on the contention that Pedro Jr. was

not given proper notice. See id. § 633(d)(2), (f).

       4. University Hospital

       Appellants contend Balmer’s appointment is void because the administrator of University

Hospital, the facility where V.A. was residing, was not given notice by mail. See id. § 633(d)(3).

This provision, like the provision addressing notice to Pedro Jr., is subject to section 633(f). See

id. § 633(f). Accordingly, failure to give the hospital notice does not affect the validity of the

probate court’s appointment of Balmer as guardian of V.A.’s estate. See id. § 633(d)(3), (f).

       5. Noncompliance with Sections 633(f) and 633(d–1)

       Section 633(f) provides:

       The court may not act on an application for the creation of a guardianship until
       the Monday following the expiration of the 10-day period beginning the date
       service of notice and citation has been made as provided by Subsections (b), (c),
       and (d)(1) of this section and the applicant has complied with Subsection (d–1) of
       this section. The validity of a guardianship created under this chapter is not
       affected by the failure of the applicant to comply with the requirements of
       Subsections (d)(2)–(9) of this section.

TEX. PROB. CODE ANN. § 633(f). Section 633(d–1) provides:

       (d–1) The applicant shall file with the court:
          (1) a copy of any notice required by Subsection (d) of this section and the
          proofs of delivery of the notice; and
          (2) an affidavit sworn to by the applicant or the applicant’s attorney stating:
              (A) that the notice was mailed as required by Subsection (d) of this
              section; and
              (B) the name of each person to whom the notice was mailed, if the
              person’s name is not shown on the proof of delivery.

Id. § 633(d–1). It is undisputed that neither the ten-day waiting period of section 633(f) nor the

affidavit requirement of section 633(d–1) was strictly complied with. Appellants contend that

compliance with these provisions is jurisdictional; they rely on In re Guardianship of Erickson,

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208 S.W.3d 737, 741 (Tex. App.—Texarkana 2006, no pet.) and Ortiz v. Gutierrez, 792 S.W.2d

118, 119 (Tex. App.—San Antonio 1989, writ dism’d) in support of this contention. At least one

appellate court has called Erickson into question because it failed to analyze section 633(f) under

the supreme court’s holdings in Kazi and City of DeSoto. See In re Guardianship of Jordan, 348

S.W.3d 401, 409–10 (Tex. App.—Beaumont 2011, no pet.) (citing City of DeSoto v. White, 288

S.W.3d 389, 393 (Tex. 2009); Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75–77 (Tex. 2000)).

Ortiz was similarly called into question because it predated Kazi and City of DeSoto. See

Jordan, 348 S.W.3d at 409–10. 3 We turn to the analysis set forth in Kazi and City of Desoto to

determine if sections 633(f) and 633(d–1) are jurisdictional.

                  a. The plain language of the statute

         The plain language of section 633(f) and the use of the phrase “may not” means that

compliance with the ten-day waiting period is mandatory. See City of Athens v. MacAvoy, 353

S.W.3d 905, 909 (Tex. App.—Tyler 2011, pet. denied) (noting that both “may not” and “must”

are mandatory but not necessarily jurisdictional); see also TEX. GOV’T CODE ANN. § 311.016; cf.

City of DeSoto, 288 S.W.3d at 395 (recognizing that the use of the word “must” generally means

mandatory but not necessarily jurisdictional). Similarly, use of the phrase “shall” in section

633(d–1) indicates filing the affidavit is mandatory. See Helena Chem. Co. v. Wilkins, 47

S.W.3d 486, 493 (Tex. 2001). However, neither section 633(f) nor 633(d–1) contains express

3
  Ortiz is distinguishable from the case at hand. First, Ortiz addressed the lack of personal service on the proposed
ward. See Ortiz, 792 S.W.2d at 119. Here, there is no complaint of improper service upon V.A. Additionally, the
broad statement in Ortiz that “[t]he power of a court to appoint a guardian is a special power conferred by statute
and compliance with the statute is a condition precedent to the valid exercise of that power and is jurisdictional,” see
Ortiz, 792 S.W.2d at 119, is of limited applicability post-Kazi and post-City of DeSoto. Compare Kazi, 12 S.W.3d
71, 75–76 (Tex. 2000) (recognizing the “modern” trend to decrease vulnerability of final judgments and overruling
prior cases “to the extent that [they] characterized the plaintiff’s failure to establish a statutory prerequisite as
jurisdictional”), with Mingus v. Wadley, 115 Tex. 551, 558, 285 S.W. 1084, 1087 (1926) (“The general rule is that
where the cause of action and remedy for its enforcement are derived not from the common law but from the statute,
the statutory provisions are mandatory and exclusive, and must be complied with in all respects or the action is not
maintainable.”), overruled by Kazi, 12 S.W.3d 71 (Tex. 2000).


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language indicating a legislative intent to make these provisions jurisdictional. Cf. City of

DeSoto, 288 S.W.3d at 395. Accordingly, we will examine other factors to determine whether

the legislature intended compliance with section 633(f) and (d–1) to be jurisdictional.

               b. Other factors

       The legislature has given specific consequences for failure to give notice to certain

persons: “The validity of a guardianship created under this chapter is not affected by the failure

of the applicant to comply with the requirements of Subsections (d)(2)–(9) of this section.” TEX.

PROB. CODE ANN. § 633(f). Implicit in this statement is that failure to comply with any other

provision may affect the validity of the appointment of a guardian. However, this general

implication does not indicate that the validity of the proceeding can be challenged under a

jurisdictional-defect theory. Further, it is doubtful that the legislature intended for a person

belonging to the subsets in (d)(2)–(9) to challenge the validity of a guardianship proceeding for

failure to comply with the ten-day waiting period or the affidavit requirement when the

legislature specifically precluded recourse for these same persons when they were not given

notice in compliance with section 633. See id. § 633(f).

       Finally, the consequences of finding subsections 633(f) and 633(d–1) jurisdictional under

the present facts favor a determination that compliance with them is non-jurisdictional. Cf. City

of DeSoto, 288 S.W.3d at 396–97. Guardianship proceedings are necessarily ongoing and may

last for many years and consist of numerous orders. See In re Martinez, No. 04-07-00558-CV,

2008 WL 227987, at *1 (Tex. App.—San Antonio Jan. 30, 2008, no pet.) (mem. op.).

Appellants argue that courts have routinely held that personal service on a proposed ward of the

application for guardianship is jurisdictional. See, e.g., id.; Guardianship of B.A.G., 794 S.W.2d

510, 511 (Tex. App.—Corpus Christi 1990, no writ); Ortiz, 792 S.W.2d at 119 (holding the



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personal service requirement of a proposed ward pursuant to section 633’s predecessor—former

section 130E of the Probate Code—was jurisdictional). We do not dispute the contention that a

probate court lacks jurisdiction over a guardianship proceeding where the proposed ward has not

been properly served. However, compliance with the ten-day requirement of 633(f) and the

affidavit requirement of 633(d–1) is inherently different from failing to personally serve a

proposed ward. Determining subsections (f) and (d–1) are jurisdictional and subject to attack by

a party who does not belong to section 633(c) or (d)(1) could subject a multi-decade long

guardianship case to attack by a person wholly unconcerned or unconnected with the ward.

       Additionally, a guardianship proceeding, unlike other cases, allows potential relief for a

party contesting the appointment of a guardian. With the exception of persons who have adverse

interests to a ward, “any person has the right to commence any guardianship proceeding,

including a proceeding for complete restoration of a ward’s capacity or modification of a ward’s

guardianship, or to appear and contest any guardianship proceeding or the appointment of a

particular person as guardian.” TEX. PROB. CODE ANN. § 642 (emphasis added).

       Based on our analysis under Kazi and City of Desoto, we hold that under the specific

facts of the case, compliance with sections 633(d–1) and 633(f) was not jurisdictional. Cf.

Jordan, 348 S.W.3d at 410. Because appellants have not shown the probate court’s lack of

jurisdiction apparent on the face of the record, appellants’ point of error is overruled. See

McKanna v. Edgar, 388 S.W.2d 927, 928 (Tex. 1965); Tex. Dep’t of Pub. Safety v. Riley, 773

S.W.2d 756, 758 (Tex. App.—San Antonio 1989, no writ).

       We hold that compliance with Texas Probate Code subsections 633(f) and (d–1) is not

jurisdictional in situations where either a person not entitled to notice under section 633 or a

person entitled to notice under section 633(d)(2) challenges a probate court’s order for failure to



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comply with the ten-day requirement in section 633(f) or the affidavit requirement in section

633(d–1).

                                        CONCLUSION

       Appellants failed to show error apparent on the face of the record. Therefore, we affirm

the probate court’s order.


                                                      Rebecca Simmons, Justice




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