
No. 04-02-00119-CV
IN RE GUARDIANSHIP OF MARCELLO QUINTANILLA SOBERANES
From County Court at Law No. 2, Webb County, Texas 
Trial Court No. 2001-PB6-000065-L2
Honorable Jesus Garza, Judge Presiding
Opinion by:	Sandee Bryan Marion, Justice
 
Sitting:	Phil Hardberger, Chief Justice
		Alma L. López, Justice
		Sandee Bryan Marion, Justice	
Delivered and Filed:	December 24, 2002
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART

	In this appeal, we are asked to determine whether it is proper to terminate a temporary
guardianship on the grounds that the ward has left the jurisdiction of the trial court.  We conclude that
this is not a proper ground and reverse the trial court's judgment in part and remand on that basis.
We also hold that the court erred in assessing the attorney ad litem's fees against appellant and we
reverse that portion of the judgment.


BACKGROUND
	Marta Verges de Quintanilla ("appellant") and Marcello Quintanilla Soberanes ("Marcello")
have been married since 1977, and together they have two adult children.  Marcello has four children
from a prior marriage, one of whom is Maria Cristina Quintanilla de Sanchez ("Sanchez").  Appellant
is seventy-seven years old and Marcello is eighty-eight years old.  All are citizens of Mexico;
however, Sanchez maintains a residence in Laredo, Texas.
	On June 4, 2001, after suffering a fall, Marcello went to a hospital in Houston, Texas for
inpatient treatment of a hip fracture.  While there, he suffered a cerebrovascular accident and was left
with cognitive and motor deficits.  After spending a month in Houston, Marcello was transferred to
a hospital in Laredo, Texas for rehabilitation.  Appellant stayed at a nearby apartment.  On July 24,
2001, without notice to appellant, Marcello's physician permitted his discharge to Sanchez's
residence.  On that same day, Sanchez filed an Application for Appointment of Temporary Guardian
of the Person, asking that she be appointed Marcello's temporary guardian.  The Application did not
mention that Marcello was married or that appellant was in Laredo.  
	On July 25, 2001, Sanchez was appointed temporary guardian of the person of Marcello until
August 3, 2001, at which time the court would consider the necessity of a continued temporary
guardianship.  Sanchez was required to post a $2,000 bond.  Javier Montemayor was appointed
Marcello's attorney ad litem.  On July 26th, appellant learned that Marcello had been discharged from
the hospital.  Appellant contends she was unable to find her husband and she returned to Mexico.
On August 3rd, Sanchez and Montemayor filed a Joint Motion to Extend Temporary Appointment
of Guardian of Person, on the grounds that the presiding judge would not be able to hear Sanchez's
Application on August 3rd.  The hearing was extended to August 8, 2001.
	On August 8th, the court considered the Application and continued Sanchez's appointment
as temporary guardian until September 12, 2001, on which date the court would consider the
necessity of a permanent guardianship.  On August 29, 2001, appellant and her children were served
with process.  On September 12th, appellant appeared at the scheduled hearing and filed a Motion
in Limine, alleging: (1) Sanchez had claims adverse to Marcello, (2) Sanchez was an unsuitable
guardian and lacked standing, and (3) appellant was not disqualified to act as guardian if one was
necessary.  Also on September 12th, appellant filed a Contest of Appointment of Guardian.
	A brief hearing was held, on September 12th, but the court stated it would maintain the status
quo and continued the hearing until September 20th.  The court ordered that appellant be allowed
to visit with her husband.  Following a confrontation later that day between the families, appellant
filed a Motion For Immediate Removal of Violent, Abusive, Temporary Guardian, in which appellant
alleged that she and her family had been kept waiting when they went to Sanchez's home to see
Marcello, she was allowed a visit of only five minutes, and Sanchez's family was verbally and
physically abusive.  Appellant asked that Sanchez be removed as temporary guardian and that
appellant be appointed temporary guardian.  An ex parte emergency hearing on appellant's motion
to remove was held on September 13th, following which the court again maintained the status quo
until September 20th, and deferred ruling on the motion because all parties had not been served. 
	On September 20th, Montemayor moved for a continuance on the grounds that Marcello had
suffered a relapse and was so disoriented that he would not be able to attend the hearing.  The court
granted the motion and rescheduled the hearing to October 4, 2001.  The court again ordered that
appellant have visitation with her husband, and ordered that Marcello remain in Laredo, Webb
County.
	On October 1st, Sanchez changed counsel.  On October 2nd, Sanchez filed a Motion to
Terminate Temporary Guardianship on the grounds that Marcello was now in Mexico.  At the
October 4th hearing, the court ruled from the bench that it was terminating the guardianship because
all parties had left the jurisdiction.  The court signed a final judgment on January 8, 2002, terminating
the guardianship on the grounds that the ward, Marcello, had left the State of Texas.
REMOVAL OF SANCHEZ AS TEMPORARY GUARDIAN
	In her first issue, appellant asserts the trial court abused its discretion in failing to remove
Sanchez as Marcello's temporary guardian and she asks this court to order the trial court to appoint
her as guardian.  In her second issue, appellant asserts that because there was no showing she was
not qualified, the trial court abused its discretion in failing to appoint her as Marcello's temporary
guardian.  Because the trial court did not rule on either appellant's motion in limine or her motion to
remove Sanchez as temporary guardian, appellant is precluded from raising these complaints on
appeal.
TERMINATION OF TEMPORARY GUARDIANSHIP
	In her third issue, appellant asserts the court erred in terminating the temporary guardianship.
On appeal, Sanchez asserts the temporary guardianship expired on its own terms on September 12,
2001 because that is the date on which the trial court was to consider the necessity of a permanent
guardianship.  Therefore, according to Sanchez, appellant cannot complain on appeal that the court
erred in terminating the guardianship because it had already expired. 
	A temporary guardianship may not remain in effect for more than sixty days, unless the
application for temporary guardianship, for conversion of a temporary guardianship to a permanent
guardianship, or for permanent guardianship is contested.  Tex. Prob. Code Ann. § 875(h), (k)
(Vernon Supp. 2002).  If a contest is filed, the court may appoint a new temporary guardian if the
court finds the appointment is necessary to protect the ward or the proposed ward's estate.  Id. §
875(k).  The term of the temporary guardian expires at the conclusion of the hearing on the contest
to the application or on the date the court-appointed permanent guardian qualifies to serve as the
ward's guardian.  Id. 
	Sanchez filed her application on July 24, 2001, sixty days from which was September 24,
2001.  Because appellant contested the appointment of Sanchez as temporary guardian, section
875(k) was triggered and Sanchez's appointment did not automatically expire by its own terms on
September 24th.  Sanchez's term as temporary guardian would have expired at the conclusion of the
hearing on appellant's contest, which was ultimately set for October 4, 2001.  Thus, we turn to the
provisions of the Probate Code for guidance on when termination of a temporary guardianship is
proper.
	The Webb County court's jurisdiction to determine guardianship issues attached when
Sanchez filed her application.  Bearden v. Texas Co., 41 S.W.2d 447, 459, aff'd, 60 S.W.2d 1031
(Tex. Comm'n App. 1933, judgm't adopted); Tex. Prob. Code Ann. §§ 605, 606, 610.  Once a
court acquires jurisdiction over the ward and appoints a temporary guardian, the guardianship can
be settled and closed when it expires; the ward dies or is found to have full capacity to care for
himself and manage his property; the ward is no longer a minor; or the ward no longer must have a
guardian appointed to receive funds due him from any governmental source.  See Tex. Prob. Code
Ann. § 694(b).  Nothing in the Probate Code supports the proposition that a ward's absence from
the jurisdiction alone is grounds for terminating a temporary guardianship.  This is especially true
under the circumstances presented here, where the temporary guardian submitted herself and the ward
to the court's jurisdiction and sought the court's authority to act as guardian of the ward's person. (1)
Therefore, at the October 4th hearing, the trial court should have proceeded on appellant's Motion
to Remove Temporary Guardian, Motion in Limine, and the Application for Permanent Guardianship.
ATTORNEY AD LITEM'S FEES	In her fourth issue, appellant asserts the trial court erred in ordering her to pay one-half of the
attorney ad litem's fees.  We agree.  In a proceeding to appoint a guardian, the court "shall appoint
an attorney ad litem" to represent the proposed ward's interest.  Tex. Prob. Code Ann. § 646(a).
The cost of a guardianship proceeding "shall be paid out of the guardianship estate, or, if the estate
is insufficient to pay for the cost of the proceeding, the cost of the proceeding shall be paid out of the
county treasury . . . ."  Id. § 669(a).  Montemayor was appointed by the court and his fees may be
assessed as costs against Marcello's estate or the county, but not against appellant.  See Overman v.
Baker, 26 S.W.3d 506, 513 (Tex. App.--Tyler 2000, no pet.).  Therefore, the trial court erred in
assessing the attorney ad litem fees against appellant.

CONCLUSION
	The trial court erred in terminating the temporary guardianship of Marcello Quintanilla
Soberanes and we reverse that portion of the trial court's judgment and remand the case for further
proceedings consistent with this opinion.  The trial court also erred in ordering Marta Verges de
Quintanilla to pay $3,000 in attorney's fees to F. Javier Montemayor, and we reverse that portion of
the trial court's judgment.  We affirm the judgment in all other respects. (2)
							Sandee Bryan Marion, Justice
PUBLISH
 
 
1.   Although appointed as temporary guardian of Marcello's person, and not of his estate, Sanchez used her
position as temporary guardian to notify Marcello's son  (Luis Quintanilla) that the power of attorney granted to him
by Marcello had been revoked, and she notified the prospective buyer of real property owned by Marcello that Luis was
not authorized to proceed with the sale.  Sanchez then disobeyed the court's order that Marcello remain in Laredo, and
left with him for Mexico before the October 4th hearing.
2.   Sanchez was also ordered to pay $3,000 in fees to Montemayor.  Sanchez does not appeal this ruling;
therefore, our disposition of this issue on appeal should not be interpreted as a holding that the court erred in assessing
fees against her.

