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In re K.L.

Court of Appeals of Texas, Fourteenth District

June 21, 2018

IN THE INTEREST OF K.L., A CHILD

          On Appeal from the 257th District Court Harris County, Texas Trial Court Cause No. 2015-37805

          Panel consists of Justices Jamison, Busby, and Donovan.

          OPINION

          Martha Hill Jamison, Justice.

         In this appeal, the State of Texas challenges the trial court's determination that Government Code chapter 37-pertaining to the appointment of attorneys ad litem, guardians ad litem, mediators, and guardians-violates the separation of powers doctrine in the Texas Constitution. The trial court made this ruling at the request of Beryl and Arnold Tippins, parties to the litigation. The State thereafter intervened to challenge the ruling, arguing, among other grounds, that the Tippinses lacked standing to seek the relief granted by the trial court. Because we conclude that the Tippinses indeed lacked standing to request such relief, we modify the judgment to vacate the trial court's ruling that chapter 37 is unconstitutional. We affirm the judgment as so modified.

         Background

         The underlying proceedings involved conservatorship and other issues pertaining to two minor children. The Tippinses, the children's maternal grandparents, initiated the proceedings when they petitioned to be named primary conservators for the children. They named the children's parents as respondents, although, at the time, one child's father was unknown to the Tippinses and was served by publication.[1] The trial court used the procedures under Government Code chapter 37 to appoint Laura Arteaga as attorney ad litem for the unknown father. See Tex. R. Civ. P. 244 (requiring appointment of an attorney to represent a party served by publication who has not filed an answer or appeared). Among other things, chapter 37 requires courts in certain counties to create and maintain lists of qualified people who are registered to serve as attorneys ad litem, guardians ad litem, mediators, and guardians. See Tex. Gov't Code §§ 37.001(a), 37.003(a). A court is permitted to create more than one list, categorized by type of case and qualifications. Id. § 37.003(b). Courts are then generally required to make such appointments on a rotating basis from the lists but may disregard the lists and appoint someone agreed to by the parties or of the court's own choosing so long as there is a finding of good cause and an explanation is provided. Id. § 37.004.

         After the appointment of Arteaga, the Tippinses filed a motion to reconsider her appointment, arguing that chapter 37 violated the separation of powers doctrine in the Texas Constitution both because it infringes on core judicial powers and its vague and undefined use of the word "qualified" requires the judiciary to legislate in the guise of interpreting the statute. See Tex. Const. art. II, § 1.[2] The Tippinses specifically requested that the court find the statute to be unconstitutional, reconsider its appointment of Arteaga, and appoint an attorney ad litem without using the chapter 37 procedures. Notice of the constitutional challenge was duly provided to the Texas Attorney General's Office as required by law. See Tex. Gov't Code § 402.010.

         Before the motion was heard, the mother filed a counter-petition identifying the child's father as an "alleged father." At the hearing on the motion, the father appeared pro se and Arteaga appeared as attorney ad litem. The State did not appear or respond to the motion at that time. Following the hearing, the trial court granted the motion, held that chapter 37 violated the separation of powers doctrine, and vacated the appointment of Arteaga. The court did not appoint a replacement attorney ad litem, and the father's paternity was subsequently established. Several months later, while the parties were still litigating, the Attorney General's Office filed on behalf of the State a petition in intervention and a motion to reconsider the order and its declaration that the chapter 37 procedures are unconstitutional. The trial court denied the motion. The trial court thereafter held a trial on conservatorship and other issues pertaining to the children.

         In its final judgment, the trial court named the Tippinses as the children's primary conservators and named the respective parents as possessory conservators.

         The State now brings this appeal.

         The State's Intervention Was Timely.

         We begin by addressing the Tippinses' assertion that the State waived its contentions by failing to timely intervene in the trial court. As noted above, the State did not appear for the hearing on the Tippinses' motion to reconsider the appointment of Arteaga and did not file its own motion to reconsider the granting of the Tippinses' motion until several months later. In support of their waiver argument, the Tippinses cite Texas Rule of Civil Procedure 329b(a), which provides that a motion for new trial must be filed within 30 days of the order in question. The Tippinses additionally point out that time is frequently said to be "of the essence" in cases involving the best interest of children, citing In re Barton, No. 07-08-0123-CV, 2008 WL 1903483, at *2 (Tex. App.-Amarillo Apr. 30, 2008, orig. proceeding) (mem. op.) (denying mandamus relief where unexplained delay in seeking review was "troublesome given that the needs and stability of a child [were] implicated").

         In response, the State points out that Texas follows an expansive intervention policy, permitting any party to intervene in litigation subject to being stricken for cause, citing State v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015) (citing, in turn, Tex.R.Civ.P. 60). In Naylor, the court observed that Texas procedural rules do not impose any intervention deadline but common law has prohibited post-judgment interventions unless the trial court first sets aside the judgment. Id. (citing First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984)). The State additionally notes that the Tippinses' reliance on Rule 329b is misplaced as that rule applies to final judgments and not interlocutory orders such as that at issue here. See, e.g., In re Fischer, No. 14-11-00482-CV, 2011 WL 2899138, at *2 (Tex. App.-Houston [14th Dist.] July 21, 2011, orig. proceeding) (mem. op.).

         We agree with the State. The Tippinses do not cite any authority, and we have discovered none, suggesting that the State's intervention in this case was untimely. Moreover, the Tippinses are unable to identify any way in which any party was disadvantaged or prejudiced or any portion of the proceedings was compromised due to the delayed intervention. Arteaga's involvement in the litigation effectively ended with the hearing on the Tippinses' motion to reconsider, and the trial court did not appoint a replacement attorney ad ...


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