Appeal from the 257th District Court Harris County, Texas
Trial Court Cause No. 2015-37805
consists of Justices Jamison, Busby, and Donovan.
Hill Jamison, Justice.
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.
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. 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.
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. 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.
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.
final judgment, the trial court named the Tippinses as the
children's primary conservators and named the respective
parents as possessory conservators.
State now brings this appeal.
State's Intervention Was Timely.
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").
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.).
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