Chief Justice                                                                                                          Clerk
James T. Worthen                                                                                                       Cathy S.Lusk


                                      Twelfth Court of Appeals
Justices                                                                                                               Chief Staff Attorney
Sam Griffith                                                                                                           Margaret Hussey
Diane DeVasto




           Wednesday, October 12, 2005


           Mr. Carnegie H. Mims Jr.                                        Mr. Kenneth Raney
           Mims & Associates                                               Thigpen & Raney
           203 Candler Drive                                               HON. College Ave.
           Houston, TX 77037                                               Ste. 1401
                                                                           Tyler, TX 75702

           Mr. Wayne B. Slaughter Jr.                                      Mr. M. Keith Dollahite
           W.B. Slaughter & Associates                                     100 East Ferguson
           The Center, Suite 935                                           Suite 1015
           8323 Southwest Freeway                                          Tyler, TX 75702
           Houston, TX 77074

           RE:       Case Number:                        12-04-00144-CV
                     Trial Court Case Number:            32,334-P

           Style: In the Estate of Earle Stanton, Deceased


           Enclosed is a copy of the Opinion issued this date in the above styled and numbered cause.
           Also enclosed is a copy of the Court's judgment.

           Very truly yours,

           CATHY S. LUSK, CLERK



           By: KahjJlA, MjL
                 Katrina McClenny, Chief Depuft Clerk

           CC:            Hon. Floyd T. Getz
                          Hon. John Ovard
                          Ms. Judy Carnes




                 1517 West Front Street • Suite 354 • Tyler, TX 75702 • Tel: 903-593-8471 • Fax: 903-593-2193
   Serving Anderson, Angelina, Cherokee, Gregg, Henderson, Houston, Nacogdoches, Rains, Rusk, Sabine, SanAugustine, Shelby, Smith, Trinity,
                                                    Upshur, Van Zandt and Wood Counties
                                                        www. 12thcoa.courts.state.tx.us
                                       NO. 12-04-00144-CV


                           IN THE COURT OF APPEALS


           TWELFTH COURT OF APPEALS DISTRICT


                                           TYLER, TEXAS

IN THE ESTATE OF                                           §              APPEAL FROM THE

EARLE STANTON,                                             §              COUNTY COURT AT LAW#3

DECEASED                                                   §              SMITH COUNTY, TEXAS



                                                     OPINION

       Carnegie H. Mims, Jr., as former temporary administrator of the Estate of Earle Stanton (the
"Estate"), appeals certain orders relating to the administration of the Estate. In five issues, Mims
challenges the ad litem's standing and authority and contends the probate court erred in appointing
a third-party dependent administrator, failing to award Mims attorney's fees for legal services he
performed as the temporary administrator, ordering an advance to the attorney ad litem for expenses,
and setting the dependent administrator's bond at $10,000. We affirm.


                                                   Background

       Earle Stanton, an only child, died without a will as a resident of Smith County. He was
unmarried with no children, and therefore his heirs were the descendants of his parents' siblings. See
Tex. Prob. Code Ann. § 38(a)3 (Vernon 2003). On June 24,2003, one month after Stanton's death,

Mims was appointed temporary administrator of the Estate by an order stating, in part, as follows:
                 As Temporary Administrator, Carnegie H. Mims, Jr. shall have the authority to ascertain and
       collect the assets of the estate, to manage the properties of the estate, including paying the expenses for
       the upkeep of the properties, to hire and employ professionals, such as attorneys, accountants, realtors,
       and security personnel, to collect the rental income due on the rental properties, and to provide
       safekeeping for any valuables located in the Decedent's home.
        Around the time of his appointment as temporary administrator, Mims entered into a
management contract with Peggy Ann Black and Henry Jackson to manage the Estate's real property.
In July, Mims filed an application to determine heirship.1 In August, the probate court entered an
order appointing Scott Killough as the attorney ad litem for the unknown heirs of the Estate.
Killough then filed a motion for deposit of security to investigate the existence of unknown heirs,
to which Mims objected. Following a hearing, the court entered an order on November 13,2003 that
Mims pay $15,000 from estate funds to Killough as a deposit to defray the costs of his investigation
to identify and locate the decedent's heirs. On December 22, 2003, Mims's appointment as
temporary administrator expired.          See id. § 131A(a) (duration of temporary administrator's
appointment may not exceed 180 days unless made permanent).
       On March 17,2004, Mims filed an application requesting the court to authorize payment of
attorney's fees to him for legal services he performed while serving as temporary administrator. On
March 26, Killough filed an application seeking the appointment of an independent third party as
dependent administrator of the Estate. Black and Jackson each filed, on March 30, an application
to be appointed as temporary administrator. Mims signed each application as attorney for the
applicant. Two days later, Mims himself filed an application, asking to be appointed again as
temporary administrator.

       The court held a hearing on April 8, at which time it denied the applications of Mims, Black,
and Jackson and appointed Ken Raney as dependent administrator. The court also denied Mims's
application for attorney's fees, without prejudice to refiling. Mims timely filed this appeal.


                                Authority of Attorney Ad Litem

       In his first issue, Mims contends that Killough did not have the authority or standing either
to oppose the appointment of a temporary administrator or to apply for the appointment of an
independent third-party administrator. Mims does not contest the fact that Killough was duly
appointed by the court as attorney ad litem for the unknown heirs or deny that these unknown heirs
were Killough's clients. See id. § 34A (courtmay appoint attorney ad litem to represent unknown



         Mims is an attorney licensed to practice law in Texas.
heirs in probate proceeding); Cahill v. Lyda, 826 S.W.2d 932, 933 (Tex. 1992) (addressing duties
of attorney ad litem to clients). It is the attorney ad litem's duty to "defend the rights of his
involuntary client with the same vigor and astuteness he would employ inthe defense ofclients who
had expressly employed him for such purpose." Estate of Tart v. Harpold, 531 S.W.2d 696, 698
(Tex. App.-Houston [14th Dist.] 1975, writrefdn.r.e.) (quotingMadero v. Calzado, 281 S.W. 328
(Tex. Civ. App.-San Antonio 1926, writ dism'd)). The attorney adlitem owes thesame duty to his
clientas theattorneys representing executors oweto theirclients. Harpold, 531 S.W.2d at698. The
attorney ad litem must exhaust all remedies available to his client. Cahill, 826 S.W.2d at 933.
       A court has the power to appoint a temporary administrator if the interest of a decedent's
estate requires the immediate appointment of a personal representative. Tex. Prob. Code Ann.
§ 131A(a). An heir may request a hearing to contest the appointment. Id. § 131A(h)(l). An heir
may also make application for the appointment of a permanent administrator. Id. §§ 3(r), 76(c).
Here, Killough'sclients, hadtheybeenpresent, couldhaveopposed the appointment of a temporary
administrator and appliedfor the appointment of an independent third-party administrator. Because
they were notpresent, Killough hadboth standing and the authority to take those actions on behalf
of his clients. See Cahill, 826 S.W.2d at 933; Harpold, 531 S.W.2d at 698. Mims's issue one is
overruled.



                        Appointment of Dependent Administrator

       In his second issue, Mims contends the probate court abused its discretion when it appointed
an independent thirdpartyas administrator instead of himself, Black, or Jackson. He contends that
section 77 of the probate code prescribes the order of persons to be appointed when there are
multiple applications filed and that an independent third party would have the lowest priority. See
Tex. Prob. Code Ann. § 77 (Vernon 2003). Killough responds that section 77 requires that the
person appointed be "qualified" and that no person is "qualified" to serve "whom the court finds
unsuitable." Id. § 78(e).
       Temporary administrators shall have and exercise only such rights and powers as are
specifically expressed in the order of the court appointing them, and as may be expressed in
subsequent orders of the order. TEX. Prob. Code Ann. § 133 (Vernon 2003). The authority of a
temporary administrator is to act as a conservator, not a distributor of the estate. Barrett v.
Parchman, 675 S.W.2d 289,292 (Tex. Civ. App.-Dallas 1984, no writ). The powers of a temporary
administrator are very restrictive and may only be extended or expanded by the probate court. See
Tex. Prob. Code Ann. § 133. It is an improper use of the temporary administrator's authority given
him by the probate court to do more or less than the court has ordered or authorized him to do. See
id., Barrett, 675 S.W.2d at 292.

       Here, Mims filed an application to determine heirship without obtaining court authorization
to do so. Further, Mims allowed Black and Jackson to continue collecting rents and managing the
real property of the Estate after his authority as temporary administrator ended on December 22,
2003. Once Mims's authority ended, Black and Jackson had no legal right to continue managing the
real property of the Estate or collecting rents. Yet both Black and Jackson testified that they
continued to do so without any authorization from the probate court. Raney testified that he
practiced probate law, was a resident of Smith County, and did not know any of the heirs of the
Estate. The court appointed Raney as the dependent administrator of the Estate.
       The probate court is granted broad discretion in determining whether an individual is suitable
to serve as an executor or administrator. Dean v. Getz,970 S.W.2d 629,633 (Tex. App.-Tyler 1998,
no pet.). The legislature intended for the probate court to have wide latitude in determining who
would be appropriate for the purpose of administering estates. Id. With reference to Mims, Black,
and Jackson, the evidence shows all three acted contrary to the authority granted by the probate
court. This evidence supports the probate court's determination that all three were unsuitable to be
appointed temporary administrator of the Estate. We hold that the probate court did not abuse its
discretion in appointing Raney as the dependent administrator of the Estate. Mims's issue two is
overruled.




                                        Attorney's Fees

       In his third issue, Mims contends the trial court abused its discretion when it did not award

him attorney's fees for legal services he performed while he served as temporary administrator.
       The temporary administrator shall be entitled to receive a commission of five percent on all
sums actually received in cash and the same percent on all sums he may actually pay out in cash,
subject to certain limitations. Tex. Prob. Code Ann. § 241 (Vernon 2003). Any action taken by
an administrator not authorized by delineated powers or legal duty to the estate is not compensable.
Kay v. Sandler, 704 S.W.2d 430, 433 (Tex. App.-Houston [14th Dist.] 1985, writ ref d n.r.e.).
Where a temporary administrator is also an attorney, he is entitled to reasonable attorney's fees for
his legal services. See Tex. Prob. Code Ann. § 242 (Vernon 2003); see also Burton v. Bean, 549
S.W.2d 48, 51 (Tex. App.-El Paso 1977, no writ).          However, he must separately identify the
services he performed as temporary administrator and the services he performed as attorney for the
estate. See Burton, 549 S.W.2d at 51.

        Mimsfileda request for $15,140 in attorney's fees andout-of-pocket expenses. Theprobate
court stated at the hearing on Mims's application that it could not distinguish the fees for the work
Mims had done as temporary administrator and from the fees for his legal services. Consequently,
the probate court denied Mims's application, but stated that he could refile it. This was not an abuse
of the trial court's discretion. Mims's issue three is overruled.



                          Attorney Ad Litem's Expenses and Fees

       In hisfourth issue,Mimsquestions the inherent powerof the probate courtto ordera deposit
paid to the attorney ad litem from estate funds for expenses or to authorize the attorney ad litem to
retain counsel on appeal to represent him.
       A probate court shall have alljurisdiction andauthority to transact all business pertaining to
estates. Tex. Prob. CODE Ann. § 4 (Vernon 2003). Partiescan be requiredin all civil casesto give
security for costs during their pendency. Tex. R. Civ. P. 143. This rule has been incorporated in
probate proceedings. Tex. Prob. Code Ann. § 12(a) (Vernon 2003); see also Ray v. McFarland,
97 S.W.3d 728, 731 (Tex. App.-Fort Worth 2003, no pet.) ("Absent an express provision in the
probate code to the contrary, the rules regarding costs that are applicable to other civil cases are
applicable to probate cases."). Courts have frequently recognized the power of a court to order a
deposit of costs to defray future attorney ad litem expenses. See, e.g, Ex parte Hightower, 877
S.W.2d 17, 21 (Tex. App.-Dallas 1994, writ dism'd w.o.j.); Shirley v Montgomery, 768 S.W.2d
430, 433 (Tex. App.-Houston [14th Dist.] 1989, orig. proceeding).
       The evidence in this case showed that substantial investigation by an heir tracing service
would be required to trace the heirship of the decedent and to locate the heirs. The evidence also
showed that because there was a large number of potential heirs, the estimated cost of the
investigation was $15,000. The deposit was necessary to provide the ad litem with funds to pay for
the investigation. The trial court did not abuse its discretion by ordering the deposit.
         Mims also contends that Killough, as attorney ad litem, was not entitled to an attorney on
appeal. We disagree, as does the Texas Supreme Court. An attorney ad litem is entitled to
reasonable attorney's fees and expenses on appeal. Cahill, 826 S.W.2d at 933. Mims's fourth issue
is overruled.




                                             Administrator's Bond

         In his fifth issue, Mims contends that the trial court erred in setting Raney's bond as
dependent administrator in the amount of $10,000. The trial court entered an order requiring that
Raney place all cash, stocks, bonds, and other marketable securities in excess of $10,000 in
safekeeping. The amount of the bond of the personal representative shall be reduced in proportion
to the cash showed deposited or the value of the other securities or other assets placed in
safekeeping. Tex. Prob. Code Ann. § 194(6) (Vernon 2003). According to the sworn inventory
Mims filed as temporary administrator, the value of the estate assets that are not in safekeeping and
are not real property is $8,900. This is less than the amount of Raney's bond. Mims's issue five is
overruled.




                                                     Disposition

         The judgment of the trial is affirmed.




                                                                    JAMES T. WORTHEN
                                                                        Chief Justice


Opinion delivered October 12, 2005.
Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.


                                                      (PUBLISH)
                                COURT OF APPEALS
           TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT


                                          OCTOBER 12, 2005


                                       NO. 12-04-00144-CV


                   IN THE ESTATE OF EARLE STANTON, DECEASED



                               Appeal from the County Court at Law #3
                            of Smith County, Texas. (Tr.Ct.No. 32,334-P)


                       THIS CAUSE came to be heard on the appellate record and briefs filed herein,

and the same beinginspected, it is the opinion of this court that there was no errorin thejudgment.

                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment

of the court below Be in All Things Affirmed, and that all costs of this appeal are hereby

adjudged against the appellant, CARNEGIE H. MIMS, JR., for which execution may issue, and

that this decision be certified to the court below for observance.

                       James T. Worthen, Chief Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
