                            NUMBER 13-08-00682-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


                   IN RE CONSUELO VILLARREAL CANTU


                      On Petition for Writ of Mandamus.


                         MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Rodriguez

      Through this petition for writ of mandamus, relator, Consuelo Villarreal Cantú,

contends that the trial court failed to satisfy “the mandatory and jurisdictional notice

requirements of the Texas Probate Code” because it held an initial guardianship hearing

and appointed a temporary guardian “without giving the proposed ward prior notice as

required by section 875 of the Texas Probate Code.” See TEX . PROB. CODE ANN . § 875

(Vernon Supp. 2008). We deny the petition for writ of mandamus.
                                        I. Standard of Review

        Generally, mandamus relief is available only to correct a clear abuse of discretion

when there is no adequate remedy by appeal. In re Bexar County Criminal Dist. Attorney's

Office, 224 S.W.3d 182, 185 (Tex. 2007) (orig. proceeding); Walker v. Packer, 827 S.W.2d

833, 840 (Tex. 1992) (orig. proceeding). Mandamus will also lie to correct a void order,

that is, an order the trial court had no power or jurisdiction to render. In re Sw. Bell Tel.

Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam); In re Dickason, 987

S.W.2d 570, 571 (Tex. 1998) (orig. proceeding); Urbish v. 127th Judicial Dist. Court, 708

S.W.2d 429, 431 (Tex. 1986) (orig. proceeding). When the trial court's order is void,

mandamus relief is available regardless of whether there is an adequate remedy by

appeal. Sw. Bell Tel. Co., 35 S.W.3d at 605; In re Vlasak, 141 S.W.3d 233, 235 (Tex.

App.–San Antonio 2004, orig. proceeding).

                                            II. Background

        This original proceeding arises from a guardianship proceeding initiated by Raquel

Villarreal Cantú, one of the seven adult children of the proposed ward, Raquel Cantú de

Villarreal (“Doña Raquel”).1          On June 20, 2007, Raquel filed an “Application for

Appointment of Temporary Guardian of the Person and Estate of Raquel Cantú de

Villarreal and Application for Temporary Restraining Order, Temporary Injunction, and

Permanent Injunction,” through which she asked, inter alia, to be appointed as temporary

guardian for Doña Raquel. The trial court set the matter for hearing that afternoon at 1:30



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        Doña Raquel’s seven children are as follows: Consuelo Villarreal Cantú, Raquel Villarreal Cantú,
Marcelo Villarreal Cantú, Carlos Villarreal Cantú, Ignacio Villarreal C antú, Fernando Villarreal Cantú, and
Martha Guadalupe Villarreal Cantú.

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p.m. and appointed Noe Garza as attorney ad litem for Doña Raquel. Garza met with

Doña Raquel before the hearing for a period of time in excess of an hour.

         The hearing commenced at 1:30 p.m. with appearances by counsel for Raquel;

counsel for Ignacio, Martha, Consuelo, and Fernando; Doña Raquel’s attorney ad litem;

and local counsel appearing on behalf of Doña Raquel’s attorney in Mexico. The record

reflects that Doña Raquel was personally served with a copy of the application at 3:45 p.m.

that afternoon. That same day, the trial court appointed Raquel as temporary guardian of

Doña Raquel.

         The hearing on the application resumed the following day. Ignacio filed a counter-

petition seeking temporary guardianship of his mother. The hearing continued on June 25,

and, according to the reporter’s record, Doña Raquel was present in the courtroom. On

July 15, the trial court appointed Raquel as temporary guardian over the person of Doña

Raquel and appointed Jaime Deitz as temporary guardian of Doña Raquel’s estate.

Subsequently, by settlement agreement incorporated into a final judgment, Ignacio was

appointed permanent guardian over the person of Doña Raquel. Subsequent to that,

following a jury trial, Ignacio was removed as his mother’s permanent guardian and was

replaced by Raquel.2




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            The jury found, inter alia, that Ignacio: failed to return accounts or reports that were required by law;
failed to obey court orders with respect to the perform ance of his duties as guardian; neglected to m aintain
Doña Raquel as liberally as her m eans and the condition of her estate perm itted; was guilty of gross
m isconduct or m ism anagem ent in the perform ance of his duties as guardian; was indebted to Doña Raquel;
was asserting a claim adverse to Doña Raquel; and was incapable of properly and prudently m anaging and
controlling Doña Raquel. The jury further found that Rachel was duly qualified to serve as Doña Raquel’s
guardian. The trial court entered judgm ent on this verdict, rem oving Ignacio as Doña Raquel’s perm anent
guardian and appointing Rachel in his place.

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         Consuelo brought this original proceeding contending that the trial court’s jurisdiction

over Doña Raquel was never properly invoked, and thus all orders in the guardianship

proceeding are void.3 The Court requested and received a response to the petition for writ

of mandamus from the real parties in interest, and further received a reply thereto from the

relator.

                                                  III. Analysis

         Relator asserts that “[a]lthough Doña Raquel was neither given prior notice of nor

appeared at the guardianship hearing, the trial court signed an order appointing Raquel

Villarreal Cantú as temporary guardian of Doña Raquel’s person and estate.” Relator’s

contentions are premised on section 875(e) of the Texas Probate Code. See TEX . PROB.

CODE ANN . § 875(e). Under the probate code, a respondent in a temporary guardianship

proceeding must be served with notice before a hearing is held on the application for

temporary guardianship and a temporary guardian is appointed. See id. Section 875(e)

states that:

         On the filing of an application for temporary guardianship, the clerk shall
         issue notice that shall be served on the respondent, the respondent's
         appointed attorney, and the proposed temporary guardian named in the
         application, if that person is not the applicant. The notice must describe the
         rights of the parties and the date, time, place, purpose, and possible
         consequences of a hearing on the application. A copy of the application
         must be attached to the notice.




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           It is anom alous that the petition for writ of m andam us alleging a failure of notice or defective notice
to Doña Raquel was filed not by Doña Raquel, her attorneys, or her ad litem , but was instead filed by one of
her children, who had, incidentally, agreed with the necessity for the appointm ent of a tem porary guardian.
Because the m andam us record and briefing is not com plete in this regard and because we will be denying
the petition based on the erroneous nature of relator’s com plaints, we need not further explore this issue
herein. See T EX . R. A PP . P. 47.1.

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See id. The respondent in a temporary guardianship proceeding is entitled to receive prior

notice of the hearing on the application, to be present at the hearing, to present evidence,

to confront and cross-examine witnesses, and to be represented by counsel. See id. § 875

(f)(1)(A)-(D). A person for whom a temporary guardian is appointed “may not be presumed

to be incapacitated.” Id. § 874.

       A judgment or order is void when it is apparent that the court rendering it lacked

jurisdiction of either the parties or the subject matter of the lawsuit. See In re Mask, 198

S.W.3d 231, 235 (Tex. App.–San Antonio 2006, orig. proceeding); In re Bokeloh, 21

S.W.3d 784, 794 (Tex. App.–Houston [14th Dist.] 2000, orig. proceeding). For a trial court

to have jurisdiction over a party, the party must be properly before the court in the pending

controversy as authorized by procedural statutes and rules. Perry v. Ponder, 604 S.W.2d

306, 322 (Tex. Civ. App.–Dallas 1980, no writ). Generally, a trial court does not have

jurisdiction to enter a judgment or order against a respondent unless the record shows

proper service of citation on the respondent, or an appearance by the respondent, or a

written memorandum of waiver at the time the judgment or order was entered. TEX . R. CIV.

P. 124; Werner v. Colwell, 909 S.W.2d 866, 869-70 (Tex. 1995); Autozone, Inc. v. Duenes,

108 S.W.3d 917, 920 (Tex. App.–Corpus Christi 2003, no pet.). If a trial court enters a

judgment before it acquires jurisdiction of the parties, the judgment is void. Mask, 198

S.W.3d at 235; In re B.A.G., 794 S.W.2d 510, 511-12 (Tex. App.–Corpus Christi 1990, no

writ) (citing Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985)).

       Here, the record shows that the trial court sent notice of the hearing by facsimile to

Joe Williams, who appeared at the hearing on behalf of Doña Raquel’s Mexican counsel.



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Doña Raquel’s ad litem, who had met with her prior to the hearing, appeared at the hearing

on her behalf. Based on the record, Doña Raquel was present for some, if not all, of the

proceedings attendant to the hearing. Doña Raquel was personally served with the

application shortly after the hearing began. The trial court’s first order appointing Raquel

as temporary guardian was not entered until after Doña Raquel was personally served with

the application.

        Under these circumstances, we conclude that the trial court had acquired jurisdiction

over Doña Raquel at the time it signed the order appointing Raquel as her temporary

guardian, and thus the order appointing Raquel as temporary guardian is not void. Cf. In

re B.A.G., 794 S.W.2d at 511-12 (concluding that the trial court lacked jurisdiction and its

actions were void when the allegedly incapacitated respondent did not receive personal

service under the former guardianship statute); Ortiz v. Gutierrez, 792 S.W.2d 118, 119

(Tex. App.–San Antonio 1989, writ denied) (holding that the personal service requirement

under the former guardianship statute was jurisdictional, and therefore, the trial court

properly dismissed a guardianship proceeding when the proposed ward had not been

personally served). Having found that the trial court’s jurisdiction was properly invoked, we

need not further address Consuelo’s issues herein. See TEX . R. APP. P. 47.1, 52.8(d).4

                                                V. Conclusion

        The Court, having examined and fully considered the petition for writ of mandamus,

the response thereto, and the reply, is of the opinion that relator has not shown herself

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          W e note that the parties did not raise or brief an issue regarding whether or not the trial court’s order
appointing a tem porary guardian was rendered m oot when the trial court appointed a perm anent guardian for
Doña Raquel. Cf. In re Guardianship of Erickson, 208 S.W .3d 737, 740 (Tex. App.–Texarkana 2006, no pet.)
(noting that issues pertaining to the rem oval of a tem porary guardian would be rendered upon the proper
appointm ent of a perm anent guardian). Accordingly, we do not address this issue herein.

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entitled to the relief sought. Accordingly, the petition for writ of mandamus is DENIED.

See id. 52.8(a).   The motion for temporary relief and sanctions, previously filed by

appellees, is DENIED. Appellees’ motion to consolidate and dismiss, as it pertains to this

cause, is likewise DENIED, as is their motion for oral argument.




                                                   NELDA V. RODRIGUEZ
                                                   Justice

Memorandum Opinion delivered and
filed this 2nd day of April, 2009.




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