553 S.W.3d 703
Tex. App.2018Background
- Grandparents Beryl and Arnold Tippins petitioned to be primary conservators for two grandchildren; one child’s father was initially unknown and served by publication.
- The trial court appointed Laura Arteaga as attorney ad litem for the unknown father using Government Code chapter 37 procedures (lists and rotating appointments for ad litems).
- The Tippinses moved to reconsider, arguing chapter 37 violates the Texas Constitution’s separation-of-powers provision and asking the court to vacate Arteaga’s appointment and appoint an ad litem without chapter 37 procedures; the court granted the motion and declared chapter 37 unconstitutional.
- The State (Attorney General) later intervened and moved to reconsider; the trial court denied that motion and proceeded to a final judgment awarding conservatorship to the Tippinses.
- On appeal the State argued, inter alia, the Tippinses lacked standing to challenge chapter 37; the Fourteenth Court of Appeals agreed, concluding the trial court lacked subject-matter jurisdiction to decide the constitutional claim.
- The appellate court modified the judgment to vacate the trial court’s ruling that chapter 37 is unconstitutional and affirmed the remainder of the judgment.
Issues
| Issue | Tippinses' Argument | State's Argument | Held |
|---|---|---|---|
| Whether Tippinses had standing to challenge constitutionality of Gov’t Code ch. 37 | Tippinses argued they could be injured by appointment method because they might have to pay ad litem fees and because ad litem appointment affects children’s best interests | State argued Tippinses lacked a concrete, particularized injury traceable to chapter 37 because the ad litem represented an opposing party and fee exposure or child’s best-interest concerns were not caused by the statute’s procedures | Held: Tippinses lacked standing; trial court lacked jurisdiction to decide statute’s constitutionality; appellate court vacated that ruling |
Key Cases Cited
- Heckman v. Williamson Cty., 369 S.W.3d 137 (Tex. 2012) (standing is a jurisdictional prerequisite and reviewed de novo)
- Barshop v. Medina Cty. Underground Water Conservation Dist., 925 S.W.2d 618 (Tex. 1996) (party challenging statute must show injury under the statute)
- Rhodes v. Cahill, 802 S.W.2d 643 (Tex. 1990) (ad litem fees may be taxed as costs; must be reasonable and necessary)
- Cahill v. Lyda, 826 S.W.2d 932 (Tex. 1992) (role of attorney ad litem is to represent interests of the unserved party)
- State v. Naylor, 466 S.W.3d 783 (Tex. 2015) (Texas has expansive intervention policy; common law limits post-judgment intervention absent set-aside)