                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                             F I L E D
                     REVISED AUGUST 18, 2003                  July 30, 2003

                                                        Charles R. Fulbruge III
              IN THE UNITED STATES COURT OF APPEALS             Clerk
                      FOR THE FIFTH CIRCUIT



                          No. 02-20412




     RUTH BAUER,


                                               Plaintiff-Appellant.


          versus


     THE STATE OF TEXAS; ET AL,

                                               Defendants,


     THE PRESIDING JUDGE OF PROBATE COURT
     NUMBER 3 OF HARRIS COUNTY, TEXAS,

                                               Defendant-Appellee.



          Appeal from the United States District Court
                for the Southern District of Texas



Before GARWOOD and HIGGINBOTHAM, Circuit Judges, and FELDMAN,
District Judge.*

GARWOOD, Circuit Judge:


     *
     District Judge of the Eastern District of Louisiana,
sitting by designation.
     Plaintiff Ruth Bauer (Bauer) appeals the district court's

dismissal pursuant to FED R. CIV. P. 12(b)(6) of her complaint

against “the Presiding Judge of Probate Court No. 3 of Harris

County, Texas,” Judge Rory Olsen, “in his official capacity only”,

seeking a declaratory judgment under 42 U.S.C. § 1983 “that Section

875 of the Texas Probate Code is unconstitutional.”    We affirm.

                 Factual and Procedural Background

     Bauer, the beneficiary of an approximately half-billion dollar

trust, has been the subject of four guardianship proceedings before

Judge Rory Olsen (Olsen), the presiding judge of Probate Court No.

3 of Harris County, some of which form the basis of this lawsuit.

     Bauer's complaint states that while she was seriously ill in

August of 2000, Olsen appointed her son, Douglas Bauer, temporary

guardian of her person and estate pursuant to TEX. PROB. CODE §

875, attorney Darlene Payne Smith (Smith) of the law firm Crain,

Caton & James, P.C. (Crain-Caton) guardian ad litem under       TEX.

PROB. CODE § 683, and Jim Wyckoff attorney ad litem.   On December

7, 2000, Douglas Bauer and Smith filed a motion to terminate the

guardianship proceeding, and on December 13, 2000, Olsen granted

the motion and entered an order terminating the guardianship.

     Bauer's complaint further alleges that on December 22, 2000,

she became disturbed and distressed and took a trip to relieve her

stress.   On December 27, 2000, in a second guardianship proceeding

initiated in Olsen's court by Douglas Bauer, Olsen again appointed



                                 2
Douglas Bauer temporary guardian.    Olsen scheduled a hearing on

January 4, 2001, to determine whether Douglas Bauer should continue

to serve as his mother's temporary guardian.     On January 5, 2001,

Olsen terminated the temporary guardianship because Douglas Bauer's

lawyers had failed to serve notice of the hearing, as required by

the state law authorizing creation of a temporary guardianship.

TEX. PROB. CODE § 875(e).    On January 11, 2001, Olsen, after an

evidentiary hearing attended by Bauer’s attorney, appointed Smith

guardian ad litem under TEX. PROB. CODE § 683(a) (see note 4, infra)

to investigate whether a guardian should be appointed for Bauer.

Bauer alleges the evidence showed she did not need a guardian.

     Bauer alleges that in late March or early April 2001, she

developed pneumonia and voluntarily entered the hospital on or

about April 4, 2001. Olsen asserts that the pneumonia caused Bauer

to suffer hallucinations and that she has a medical history of

alcoholic cirrhosis.   Bauer avers that she was released in good

condition on April 22, 2001.   In the interim, on April 11, 2001,

Smith, in her capacity as guardian ad litem for Bauer, filed a

third application for the appointment of a temporary guardian for

Bauer.   Bauer alleges that, without notice or an opportunity to be

heard, Olsen entered an order dated April 11, 2001, appointing

lawyer Judy Lennox temporary guardian for her.    On April 17, 2001,

Bauer alleges that Smith, who remained guardian ad litem for Bauer,

filed with Olsen an application for the appointment of a permanent



                                 3
guardian.

      On May 14, 2001, before action was taken on the permanent

guardianship application, Bauer filed a motion to recuse Olsen,

which was heard by Judge Guy Herman, Travis County Presiding

Probate Judge Court #1.               Herman did not rule on the motion, and

instead remanded the case for random assignment because he found

the April 11, 2001, temporary guardianship application was a new

and separate proceeding.               The case was then reassigned to Judge

Mike Wood,       the presiding judge of Probate Court No. 2 of Harris

County.

      On May 29, 2001, Bauer filed this suit (No. H-01-1781) under

42 U.S.C. § 1983 against Olsen “in his official capacity only” as

the presiding judge of Probate Court No. 3 of Harris County and

against “the State of Texas” seeking “a declaratory judgment that

section 875 of the Texas Probate Code is unconstitutional.”                           Bauer

alleged that section 875, which pertains to the appointment of

temporary guardians for incapacitated persons, violates her due

process and equal protection rights because the standard of proof

for    appointment         of     a    temporary         guardian        does   not   meet

constitutional requirements.1

      On June 20, 2001, Olsen moved to dismiss the suit against him

pursuant to Fed R. Civ. P. 12(b)(1) and 12(b)(6), asserting that

section 1983 relief against him was unavailable because he applied


      1
       The provisions of § 875 are set out in the Appendix to this opinion.

                                               4
the challenged statute in his adjudicatory capacity.

       On July 16, 2001, Bauer voluntarily dismissed the State of

Texas.

       On July 20, 2001, Bauer filed a separate section 1983 action

against Smith and Crain-Caton in the district court below, and on

August 7, 2001, she filed a First Amended Complaint in that suit.

On September 21, 2001, the district court ordered that action (No.

H-01-2456) consolidated into Bauer's suit against Olsen (No. H-01-

1781).      On October 29, 2001, Bauer sought leave to file in the thus

consolidated action a Second Amended Complaint against Smith,

Crain-Caton, and Olsen.

       On        November   30,    2001,      all    pending       state     guardianship

proceedings affecting Bauer were dismissed by Judge Wood, Smith was

discharged as guardian ad litem, and Judge Wood entered an order to

pay Smith from Bauer's estate appointee fees and expenses totaling

$200,000.

       On December 3, 2001, Bauer moved to dismiss without prejudice

her suit (No. H-01-2456) against Smith and Crain-Caton, reciting

that       the    case   had   been    settled      “pursuant      to    a   confidential

settlement agreement” dated November 26, 2001, with Smith and

Crain-Caton, and submitted a proposed agreed order of dismissal,

which the district court signed December 21, 2001.2                           On December


       2
        The order dismisses without prejudice “Civil Action No. H-01-2456 against Defendants
[Smith and Crain-Caton] . . . provided that the Court retains jurisdiction for the purpose of
enforcing the above described Settlement Agreement of the Parties, in its discretion upon the

                                              5
20,     2001,    Bauer      moved     for     leave     to    file    her     “First      Amended

Complaint” against Olsen.3                  This proposed complaint named as the

sole defendant “Rory R. Olsen in his official capacity as the

presiding judge of Probate Court No. 3 of Harris County, Texas,”

states that “Plaintiff seeks prospectively a declaratory judgment

that certain provisions of the Texas Probate Code pertaining to

guardianships are unconstitutional under the Constitution of the

United States” and requests “a declaratory judgment that the above

described guardianship provisions of the Texas Probate Code are

unconstitutional.”             This tendered pleading not only complained of

Probate Code § 875, but also added a complaint as Probate Code §

683.4       No other provision of the Probate Code was alleged to be



filing of an appropriate motion.”
        3
         The settlement and subsequent December 2001 dismissal of all Bauer’s claims against
Smith and Crain-Caton (cause No. H-01-2456), left only her claims against Olsen in cause No. H-
01-1781, and in effect rendered moot her October 29, 2001, motion (in the consolidated case) to
file a “Second Amended Complaint” against Smith, Crain-Caton and Olsen. By order of February
5, 2002, the district court denied (“without prejudice to re-urging after the court has ruled on all
outstanding motions”) Bauer’s October 29, 2001, motion for leave to file Second Amended
Complaint against Smith, Crain-Caton and Olsen in the consolidated action.
        4
         Section 683 provides as follows:

        “§ 683. Court’s Initiation of Guardianship Proceedings

                (a) If a court has probable cause to believe that a person domiciled or
        found in the county in which the court is located is an incapacitated person, and
        the person does not have a guardian in this state, the court shall appoint a guardian
        ad litem or court investigator to investigate and file an application for the
        appointment of a guardian of the person or estate, or both, of the person believed
        to be incapacitated.


                                                 6
unconstitutional.

     On February 22, 2002, the district court granted Olsen's

motion to dismiss under Rule 12(b)(6), not reaching the Rule

12(b)(1) motion to dismiss.                The court concluded that Bauer had

failed to allege an essential element of a section 1983 claim,

namely that the defendant’s complained of actions were taken under

color of state law.            The court observed that action by a state

judge solely in his adjudicatory capacity does not constitute state

action and that the “complaint fails to state that, other than his

alleged bias, Olsen acted outside his adjudicatory capacity in

making rulings against Bauer under § 875.”

     On February 26, 2002, the court denied without explanation

Bauer's December 20, 2001, motion for leave to file a First Amended



            (b) To establish probable cause under this section, the court may require:

             (1) an information letter about the person believed to be incapacitated that
     is submitted by an interested person and satisfies the requirements of Section 683A
     of this code; or

             (2) a written letter or certificate from a physician who has examined the
     person believed to be incapacitated that satisfies the requirements of Section
     687(a) of this code, except that the letter must be dated not earlier than the 120th
     day before the date of the filing of an application under Subsection (a) of this
     section and be based on an examination the physician performed not earlier than
     the 120th day before that date.

             (c) A court that creates a guardianship for a ward under this chapter may
     authorize compensation of a guardian ad litem who files an application under
     Subsection (a) of this section from available funds of the ward’s estate. If after
     examining the ward’s assets the court determines the ward is unable to pay for
     services provided by the guardian ad litem, the court may authorize compensation
     from the county treasury.”

                                               7
Complaint.

      Bauer timely appeals.

                                Discussion

      Dismissals pursuant to Rule 12(b)(6) are appropriate where “it

appears beyond doubt that the plaintiff can provide no set of facts

in support of his claim which would entitle him to relief.”         Conley

v. Gibson, 78 S.Ct. 99, 102 (1957).        In making this determination,

the   court   accepts   as   true   all   allegations   contained   in   the

plaintiff’s complaint and all reasonable inferences are to be drawn

in favor of the plaintiff’s claims. Kaiser Aluminum & Chem. Sales

Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.

1982).   Review of a Rule 12(b)(6) dismissal is de novo. Davis v.

Bayless, 70 F.3d 367, 371 (5th Cir. 1995).

      Judges enjoy absolute immunity from liability for judicial or

adjudicatory acts.      Forrester v. White, 108 S.Ct. 538, 565 (1988).

Absolute judicial immunity, however, does not bar prospective

relief against a judicial officer.          Pulliam v. Allen, 104 S.Ct.

1970, 1981 (1984).

      Section 1983 provides a private right of action against

parties acting “under color of any statute, ordinance, regulation,

custom, or usage, of any State” to redress the deprivation of

rights secured by the United States Constitution or federal law.

City of St. Louis v. Praprotnik, 108 S.Ct. 915, 923 (1988).

Section 1983 is not itself a source of substantive rights; it


                                      8
merely provides a method for vindicating already conferred federal

rights. Albright v. Oliver, 114 S.Ct. 807, 811 (1994).   To prevail

on a section 1983 claim, the plaintiff must show that: 1) the

offending conduct was committed by a person acting under color of

state law; and 2) the conduct deprived the plaintiff of rights

secured by the Constitution or federal law.   Parrat v. Taylor, 101

S.Ct. 1908, 1909 (1981).

     First, we consider whether Bauer has standing to challenge the

constitutionality of these Texas's guardianship statutes through a

suit against Olsen.    Although Olsen has not raised the issue of

standing, we may consider it sua sponte.   See Lang v. French, 154

F.3d 217, 222 n.28 (5th Cir. 1998).   The three elements of Article

III standing are:   1) injury, 2) causation, and 3) redressability.

Okpalobi v. Foster, 244 F.3d 405, 425 (5th Cir. 2001).   Moreover,

as we recently stated in McClure v. Ashcroft, ___ F.3d ___ (No. 02-

30357, 5th Cir. June 20, 2003, slip op. 3461):

     “‘Beyond the constitutional requirements, the federal
     judiciary has also adhered to a set of prudential
     principles that bear on the question of standing.’
     Valley Forge Christian College [v. Americans United], 454
     U.S. [464] at 475, 102 S.Ct. 752 [(1982)]. ‘Prudential
     standing limitations help courts identify proper
     questions of judicial adjudication, and further define
     the judiciary’s role in the separation of powers.’ Ruiz
     v. Estelle, 161 F.3d 814, 829 n.22 (1998).” Id. at 3465.

     There are no guardianship proceedings at this time.     Bauer

alleges she has standing because of the “loss of personal and

financial rights and liberties...caused by Olsen” and argues a


                                 9
declaratory judgment is warranted because Olsen’s “past pattern of

conduct demonstrates a threat that he will continue to apply

unconstitutional   guardianship     statutes      against       Bauer   unless

declaratory relief is obtained.”         Bauer seeks declaratory rather

than injunctive relief because of section 1983’s provision, added

in 1996, that injunctive relief against a judicial officer for an

act or omission in his judicial capacity shall not be granted

unless a declaratory decree was violated or declaratory relief was

unavailable.   Tesmer v. Granholm, 114 F. Supp. 2d 603, 605 (E.D.

Mich. 2000).   When the question is whether a federal court should

enjoin a pending state-court proceeding, "even irreparable injury

is insufficient unless it is 'both great and immediate.'" Younger

v. Harris, 91 S.Ct. 746, 751 (1971).

     A plaintiff can meet the standing requirements when suit is

brought under the Declaratory Judgment Act, 28 U.S.C. § 2201-2202,

by establishing "actual present harm or a significant possibility

of future harm," Peoples Rights Org. v. City of Columbus, 152 F.3d

522, 527 (6th Cir. 1998), “even though the injury-in-fact has not

yet been completed.” Nat'l Rifle Ass'n of Am. v. Magaw, 132 F.3d

272, 280 (6th Cir. 1997).    An actual controversy must be extant at

all stages of review, not merely at the time the complaint is

filed. SEC v. Medical Comm. for Human Rights, 92 S.Ct. 577 (1972);

United States v. Munsingwear, Inc., 71 S.Ct. 104 (1950).                   The

“actual   controversy”   required   under    28   U.S.C.    §    2201(a)   "is


                                    10
identical to the meaning of 'case or controversy' for the purposes

of Article III." Lawson v. Callahan, 111 F.3d 403, 405 (5th Cir.

1997).

      In order to demonstrate that a case or controversy exists to

meet the Article III standing requirement when a plaintiff is

seeking injunctive or declaratory relief, a plaintiff must allege

facts from which it appears there is a substantial likelihood that

he will suffer injury in the future.   City of Los Angeles v. Lyons,

103 S.Ct. 1660, 1665 (1983); Cone Corp. v. Florida Dep't of

Transp., 921 F.2d 1190, 1205 (11th Cir. 1991).   Based on the facts

alleged, there must be a substantial and continuing controversy

between two adverse parties.   Emory v. Peeler, 756 F.2d 1547, 1551-

52 (11th Cir. 1985).   The plaintiff must allege facts from which

the continuation of the dispute may be reasonably inferred. Id.

Additionally, the continuing controversy may not be conjectural,

hypothetical, or contingent; it must be real and immediate, and

create a definite, rather than speculative threat of future injury.

Id.

      “‘Past exposure to illegal conduct does not in itself show a

present case or controversy regarding injunctive relief . . . if

unaccompanied by any continuing, present adverse effects.’" Lyons,

103 S.Ct. at 1665 (quoting O'Shea v. Littleton, 94 S.Ct. 669

(1974)).   To obtain equitable relief for past wrongs, a plaintiff

must demonstrate either continuing harm or a real and immediate


                                 11
threat of repeated injury in the future.                 Similar reasoning has

been applied to suits for declaratory judgments.                        Ashcroft v.

Mattis, 97 S.Ct. 1739 (1977); Golden v. Zwickler, 89 S.Ct. 956

(1969).

     Given that Bauer acknowledges there are currently no state

guardianship proceedings relating to her, that there have been no

such proceedings since November 2001, and that this matter was

transferred from Judge Olsen to Judge Wood, there does not exist a

“substantial likelihood” and a “real and immediate” threat that

Bauer will face injury from Olsen in the future.                      This court has

often held that plaintiffs lack standing to seek prospective relief

against   judges     where   the   likelihood      of    future       encounters     is

speculative. Adams v. McIlhany, 764 F.2d 294, 299 (5th Cir. 1985);

Society of Separationists, Inc. v. Herman, 959 F.2d 1283 (5th Cir.

1992).     Furthermore,       there    is    the    danger           that   excessive

superintending of state judicial functions "would constitute a form

of monitoring of the operation of state court functions that is

antipathetic   to    established      principles        of   comity."       O'Shea   v.

Littleton, 94 S.Ct. 669, 679 (1974).            Because there is no ongoing

injury to Bauer and any threat of future injury is neither imminent

or likely, there is not a live case or controversy for this court

to   resolve   and    a   declaratory       judgment         would    therefore      be

inappropriate.      Even assuming, arguendo, that the requirements of

Article III standing in this respect are minimally met, prudential


                                       12
standing       considerations             similarly       dictate       the    impropriety          of

declaratory relief for those reasons.5

       We also reject Bauer's appeal on the related ground that, due

to a lack of adversity between her and Olsen as to the facial

constitutionality             of    the    statutes       she    challenges         as    facially

invalid, there is no case or controversy under Article III and

Olsen is not a proper party under section 1983.                                     The case or

controversy requirement of Article III of the Constitution requires

a plaintiff to show that he and the defendants have adverse legal

interests. Aetna Life Ins. Co. v. Haworth, 57 S.Ct. 461 (1937).

The requirement of a justiciable controversy is not satisfied where

a judge acts in his adjudicatory capacity.                           Mendez v. Heller, 530

F.2d 457, 458 (2d Cir. 1976); Klein v. University of Kansas Medical

Ctr., 975 F. Supp. 1408, 1413 (D. Kan. 1997).                           Similarly, a section

1983 due process claim is not actionable against a state judge

acting purely in his adjudicative capacity because he is not a

proper       party       in     a     section          1983     action        challenging         the

constitutionality of a state statute.                         Nollet v. Justices of Trial



       5
         It is relevant in this connection that the relief Bauer seeks is merely a declaration that §
875 (and § 683 in her proposed amended complaint) is facially unconstitutional, while the
substance of what she complains of is that Olsen violated her rights in that (according to her
allegations) he was biased against her and acted in the proceedings involving her from improper,
ulterior motives and conspired with Smith and Crain-Caton to harm her and help them, wrongs
which are essentially independent of the claimed facial defects in the two challenged Texas
Probate Code sections. Moreover, no declaratory (or other) relief is sought in respect to such
wrongs and, for example, no declaratory relief is sought which would declare Olsen precluded
from sitting in any case involving Bauer.

                                                  13
Court of Comm. of Mass., 83 F. Supp. 2d 204, 2111 (D. Mass. 2000,

aff'd by Nollet v. Justices of the Trial Court, 248 F.3d 1127 (1st

Cir. 2000, unpublished)).

     In Chancery Clerk of Chickasaw County v. Wallace, 646 F.2d 151

(5th Cir. 1981), this court held that a plaintiff challenging the

state’s commitment procedures for the mentally ill must substitute

state bureaucrats for judges and chancery clerks as defendants,

noting “because of the judicial nature of their responsibility, the

chancery clerks and judges do not have a sufficiently ‘personal

stake in the outcome of the controversy as to assure that concrete

adverseness which sharpens the presentation of issues on which the

court   so   largely   depends     for   illumination   of   difficult

constitutional questions.’"      Id. at 160 (citing Baker v. Carr, 82

S.Ct. 691 (1962); Mendez v. Heller, 530 F.2d 457 (2d Cir. 1976)

(state court judges and clerks joined as defendants in a suit

challenging New York's durational residency requirement for divorce

found to lack the requisite interest in defending the allegedly

unconstitutional statutes)).     The Chickasaw court concluded there

was no adversity between the plaintiffs and the originally named

judicial defendants, as the defendants were not the real parties in

interest.    Prudential standing concerns and the circumstances

outlined in note 5, supra, likewise point in the same direction.

     Bauer attempts to distinguish Chickasaw and other such cases,

arguing this situation is different because Texas's guardianship


                                   14
statutes give Olsen the ability to enforce, not merely adjudicate

the law.      Bauer relies on Supreme Court of Virginia v. Consumers

Union of U.S., Inc., 100 S.Ct. 1967 (1980), in which it was held

that the Chief Justice of the Virginia Supreme Court was a proper

party under section 1983 because the Court acted in an enforcement,

rather than an adjudicatory capacity, in initiating proceedings

against      attorneys       for    violating       state     regulations        on    legal

advertising.6         Therefore, whether Olsen is a proper party under

section 1983 and whether there is a case or controversy depends on

whether Olsen likewise acted outside of his adjudicatory capacity.

       In our analysis of all these issues, we assume arguendo that

Bauer's Motion to Amend to add her allegations that section 683 is

unconstitutional should have been granted.

       Section 683 (quoted in note 4, supra) does not provide the

guardian ad litem with the authority to exercise any dominion over

the putative ward.           Instead, the guardian ad litem has merely the

same authority as a court investigator, which is to investigate and

report back to the judge whether the evidence warrants appointment

of a guardian for the putative ward.                       While section 683 gives

judges the power to initiate the appointment of a guardian ad

litem, deprivations of the ward's liberty can only result from the

appointment of a guardian or of a temporary guardian under section


       6
        The Court noted it did not decide whether the Supreme Court of Virginia was “a ‘person’
suable under § 1983.” Id., 100 S.Ct. at 1977 n.16.

                                              15
875, which Bauer does not allege Olsen initiated.                    To succeed, a

claim under section 1983 must show a deprivation of a liberty

interest      protected   by     the    Fourteenth      Amendment.        Moore   v.

Mississippi Valley State University, 871 F.2d 545 (5th Cir. 1989).

The invocation of section 683 simply to use a court investigator or

a   guardian    ad   litem     to   gather     information    involves     no   such

deprivation of liberty and, therefore, is not actionable under

section 1983 and the Fourteenth Amendment.                   Thus, we need not

determine whether Olsen acted within his adjudicatory capacity in

appointing a guardian ad litem under section 683.                     Instead, in

considering whether Olsen acted within his adjudicative capacity,

we only consider his appointment of temporary guardians under

section 875 because it is a temporary guardian, in contrast to a

section 683 guardian ad litem, that may be empowered to exercise

authority over the ward, thereby affecting the ward's liberty

interests.

      Texas    Probate    Code      §   875(a)    requires    that    a   court   be

“presented with substantial evidence” establishing probable cause

that a temporary guardian is necessary before appointing one.

Section 875(c) requires that an application for the appointment of

a temporary guardian be filed no later than the end of the next

business   day    after   the       appointment    of   a   temporary     guardian.

Section 875(d) further mandates that the court appoint an attorney

for the proposed ward if he has not already retained independent


                                          16
counsel.      Finally, notice to the ward and a hearing are required

under sections 875(e) and (f), respectively.

      It has been held that, in acting pursuant to a statute

allowing a county judge to involuntarily commit a minor to a

substance-abuse treatment facility on the petition of parent or

legal   guardian,     a   judge     was     within      his     adjudicatory    role.

Listenbee v. Reynolds, 201 F.3d 194 (3d Cir. 2000).                    As such, the

court in Listenbee found that the judge was not a proper party in

a   section    1983   challenge    to     the       statute's   constitutionality.

Similarly, the Ninth Circuit has held that a judge appointing a

temporary guardian pursuant to an Oregon statute allowing a judge

to appoint a temporary guardian without notice or a hearing, acts

in his adjudicatory capacity and therefore is not a proper party in

a   section    1983   suit     contesting       the    constitutionality       of   the

statute.      Grant v. Johnson, 15 F.3d 146 (9th Cir. 1994).                        By

comparison, judicial determinations pursuant to section 875 are

even more clearly within a judge's adjudicatory capacity, as this

statute requires notice and a hearing, among other safeguards and

limitations.

      Supreme    Court    of    Virginia       is    distinguishable    principally

because, unlike the disciplinary proceeding against the attorney

initiated by the Virginia Supreme Court, Olsen did not initiate a

temporary guardianship over Bauer.                  Instead, he issued an order

creating a temporary guardianship after evidence was presented to


                                          17
him and he found sufficient cause.           Although Olsen did initiate the

appointment     of   the   guardian    ad    litem   under   section        683,    who

petitioned after conducting an investigation for the creation of a

temporary   guardianship,      the     guardian      ad   litem   was       under   no

obligation to request a temporary guardianship.

     Other cases cited by Bauer are similarly distinguishable.                      In

Sparks v. Duval Ranch Company, Inc., 604 F.2d 976 (5th Cir. 1979),

the judge was allegedly bribed to conspire with the defendants

against   the    plaintiffs.          Bribery   is    not    within     a    judge's

adjudicatory capacity, and indeed is contrary to it.                    Ciudadanos

Unidos de San Juan v. Hidalgo County Grand Jury Comm'rs, 622 F.2d

807 (5th Cir. 1980) involved a challenge by minorities excluded

from consideration for grand jury service to grand jury selection

procedures and, thus, is similarly distinguishable from the case

sub judice.      Another case cited by Bauer, Familias Unidas v.

Briscoe, 619 F.2d 391, 396 (5th Cir. 1980), is inapposite because

the defendant judge was the County Judge of Medina County, an

executive as well as a judicial officer, and was sued for actions

taken in his executive capacity.

     Therefore, because determinations made under section 875 are

within a judge's adjudicatory capacity, there is no adversity

between Bauer and Olsen as to whether section 875 is facially

unconstitutional.      As such, there is no case or controversy under

Article III and Olsen is not a proper party under section 1983.


                                        18
Ordinarily, no case or controversy exists between a judge who

adjudicates claims under a statute and a litigant who attacks the

constitutionality of the statute.                In re Justices of The Supreme

Court of Puerto Rico, 695 F.2d 17, 19 (1st Cir. 1982).                        Section

1983 will not provide any avenue for relief against judges “acting

purely in their adjudicative capacity, any more than, say, a

typical state's libel law imposes liability on a postal carrier or

telephone company for simply conveying a libelous message.” Id. at

22.    The court in Puerto Rico offered several reasons for this

holding.      First, "judges sit as arbiters without a personal or

institutional        stake    on   either        side    of     the    constitutional

controversy."        Id. at 21.     Second, "almost invariably, they have

played no role in the statute's enactment."                   Id.    Third, "they have

not initiated its enforcement."                 Id.   Finally, "they do not even

have an institutional interest in following their prior decisions

(if any) concerning its constitutionality if an authoritative

contrary legal determination has subsequently been made." Id. All

of these reasons apply with equal force in the case of sub judice,

as    Olsen   did    not,    and   could    not       have,    initiated    temporary

guardianship        proceedings    under        section       875.      Instead,   the

requirements that the judge be presented with evidence, that an

application be filed, notice be given, and a hearing be held, all

of which were followed here, demonstrate that a judge acts in his




                                           19
adjudicatory capacity in appointing a temporary guardian.7

       Bauer also challenges the denial of her December 20, 2001,

motion to amend.              However, as explained above, the therewith

proposed amended complaint would have been subject to dismissal for

the reasons previously stated, and the proposed amendment would

hence have been futile.               Accordingly, Bauer’s contention in this

regard presents no reversible error.                       Bauer’s October 29, 2001,

motion to amend, which sought to file an amended complaint against

Smith, Crain-Caton and Olsen was mooted by her subsequent dismissal

of Smith and Crain-Caton (see note 3, supra).

       Our decision today does not foreclose Bauer or others from

directly challenging the constitutionality of Texas's guardianship

statutes, as it does not reach the question of whether these

statutes are constitutional. Bauer did not seek to dissolve either

temporary guardianship or the guardianship ad litem on the ground



       7
          The original complaint names as defendants only “the State of Texas and the Presiding
Judge of Probate Court No. 3 of Harris County, Texas” and alleges “[t]he Presiding Judge of
Probate Court No. 3 of Harris County, Texas, may be served by serving the Honorable Rory R.
Olsen, in his official capacity only.” The proposed amended complaint names as the only
defendant “Rory R. Olsen in his official capacity as the presiding judge of Probate Court No. 3 of
Harris County, Texas.” Olsen is never named as a defendant in his individual capacity. Assuming
that the Probate Court No. 3 of Harris County is a state agency, a question might arise as to
whether the suit is in effect one against a state agency and hence not within the Ex parte Young,
209 U.S. 123, 28 S.Ct. 441 (1908), prospective relief exception to the Eleventh Amendment.
See, e.g., Southern Christian Leadership v. Supreme Court of Louisiana, 252 F.3d 781, 783 n.2
(5th Cir. 2001); Landers Seed Company v. Champaign National Bank, 15 F.3d 729, 731-32 (7th
Cir. 1994); Clark v. Clark, 984 F.2d 272, 273 (8th Cir. 1993); Voisin’s Oyster House v. Guidry,
799 F.2d 183, 186, 187-88 (5th Cir. 1986). However, we will not address this question as Olsen
has not raised any Eleventh Amendment issue before us and it has not been addressed by the
district court.

                                                20
that the statutes authorizing their creation were unconstitutional.

Instead, she has attempted to use a lawsuit against Olsen as a

vehicle for         collaterally         challenging        the    constitutionality            of

Texas's guardianship laws.



                                         Conclusion

       For the foregoing reasons, the judgment of the district court

is

                                          AFFIRMED.8




       8
        With respect to several pending motions we carried with this case, this Court grants
appellant's Motion to Take Judicial Notice of public court records and information that are not in
dispute. Papasan v. Allain, 106 S.Ct. 2932 (1986). We deny appellee's Motion for Expedited
Appeal, which is moot. Finally, we deny Appellee's Motion for Damages and Costs Related to
Frivolous Appeal because this appeal is plainly not wholly without merit. Atwood v. Union
Carbide Corp., 847 F.2d 278 (5th Cir. 1988).

                                                21
                         Appendix

Section 875 of the Texas Probate Code provides as follows.

§ 875.   Temporary Guardian–Procedure

     (a) If a court is presented with substantial
evidence that a person may be a minor or other
incapacitated person, and the court has probable cause to
believe that the person or person’s estate, or both,
requires the immediate appointment of a guardian, the
court shall appoint a temporary guardian with limited
powers as the circumstances of the case require.

     (b) A person for whom a temporary guardian has been
appointed may not be presumed to be incapacitated. The
person retains all rights and powers that are not
specifically granted to the person’s temporary guardian
by court order.

     (c) A sworn, written application for the appointment
of a temporary guardian may be filed before the court
appoints a temporary guardian. The application must be
filed not later than the end of the next business day of
the court after the date of appointment of the temporary
guardian. The application must state:

     (1) the name and address of the person who is the
subject of the guardianship proceeding;

     (2) the danger to the person or property alleged to
be imminent;

     (3) the type of appointment and the particular
protection and assistance being requested;

     (4) the facts and reasons supporting the allegations
and requests;

     (5) the name, address, and qualification of the
proposed temporary guardian;

     (6) the    name,   address,    and   interest   of   the
applicant;
and

     (7) if applicable, that the proposed temporary
guardian is a private professional guardian who has


                            22
complied with the requirements of Section 697 of this
code.

     (d) At the earliest of the filing of an application
for temporary guardianship or the appointment of a
temporary guardian, the court shall appoint an attorney
to represent the proposed ward in all guardianship
proceedings in which independent counsel has not been
retained by or on behalf of the proposed ward.


     (e) 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 and, if applicable, a copy of the order
appointing the temporary guardian must be attached to the
notice.

     (f)(1) A hearing shall be held not later than the
10th day after the date of the filing of the application
for temporary guardianship unless the hearing date is
extended as provided by Subdivision (2) of this
subsection.    At a hearing under this section, the
respondent has the right to:

     (A) receive prior notice;

     (B) have representation by counsel;

     (C) be present;

     (D) present evidence and confront and cross-examine
witnesses; and

     (E) a closed hearing if requested by the respondent
or the respondent’s attorney.

     (2) Every temporary guardianship granted before a
hearing on the application required by Subdivision (1) of
this subsection expires on its own terms at the
conclusion of the hearing unless the respondent or the
respondent’s attorney consents that the order appointing
the temporary guardian may be extended for a longer


                           23
period not to exceed 60 days after the date of the filing
of the application for temporary guardianship.

     (3) Every temporary guardianship granted before a
hearing on the application required by Subdivision (1) of
this subsection shall be set for hearing at the earliest
possible date and takes precedence over all matters
except older matters of the same character.

     (4) Every temporary guardianship granted before a
hearing on the application required by Subdivision (1) of
this subsection must include an order that sets a certain
date for hearing on the application for temporary
guardianship.

     (5) On one day’s notice to the party who obtained a
temporary   guardianship   before  a   hearing   on  the
application required by Subdivision (1) of this
subsection, the respondent or the respondent’s attorney
may appear and move for the dissolution or modification
of the temporary guardianship. If a motion is made for
dissolution    or   modification   of    the   temporary
guardianship, the court shall hear and determine the
motion as expeditiously as the ends of justice require.

     (6) If the applicant is not the proposed temporary
guardian, a temporary guardianship may not be granted
before a hearing on the application required by
Subdivision (1) of this subsection unless the proposed
temporary guardian appears in court.

     (g) If at the conclusion of the hearing required by
Subsection (f)(1) of this section the court determines
that the applicant has established that there is
substantial evidence that the person is a minor or other
incapacitated person, that there is imminent danger that
the physical health or safety of the respondent will be
seriously impaired, or that the respondent’s estate will
be seriously damaged or dissipated unless immediate
action is taken, the court shall appoint a temporary
guardian by written order. The court shall assign to the
temporary guardian only those powers and duties that are
necessary to protect the respondent against the imminent
danger shown. The powers and duties must be described in
the order of appointment.

     (h) Except as provided by Subsection (k) of this
section, a temporary guardianship may not remain in


                           24
effect for more than 60 days.

     (i) If the court appoints a temporary guardian after
the hearing required by Subsection (f)(1) of this
section, all court costs, including attorney’s fees, may
be assessed as provided in Section 665A, 665B, or 669 of
this code.

     (j) The court may not customarily or ordinarily
appoint the Department of Protective and Regulatory
Services as a temporary guardian under this section. The
appointment of the department as a temporary guardian
under this section should be made only as a last resort.

     (k) If an application for a temporary guardianship,
for the conversion of a temporary guardianship to a
permanent guardianship, or for a permanent guardianship
is challenged or contested, the court, on the court’s own
motion or on the motion of any interested party, may
appoint a new temporary guardian without issuing
additional citation if the court finds that the
appointment is necessary to protect the proposed ward or
the proposed ward’s estate.       A temporary guardian
appointed under this subsection must qualify in the same
form and manner required of a guardian under this code.
The term of the temporary guardian expires at the
conclusion of the hearing challenging or contesting the
application or on the date a permanent guardian the court
appoints for the proposed ward qualifies to serve as the
ward’s guardian.




                           25
