Garland v. Garland

868 S.W.2d 847, 1993 Tex. App. LEXIS 3487, 1993 WL 437768
CourtCourt of Appeals of Texas
DecidedOctober 29, 1993
Docket05-92-02815-CV
StatusPublished
Cited by3 cases

This text of 868 S.W.2d 847 (Garland v. Garland) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garland v. Garland, 868 S.W.2d 847, 1993 Tex. App. LEXIS 3487, 1993 WL 437768 (Tex. Ct. App. 1993).

Opinion

*848 OPINION

KINKEADE, Justice.

K. Thomas Garland appeals a probate court order dismissing his application for appointment of a guardian for his disabled adult son, Daniel Thomas Garland, for lack of jurisdiction. In one point of error, Thomas Garland contends the probate court erred in dismissing his application for guardianship because that court has original, exclusive, and mandatory jurisdiction of all applications for appointment of guardian. Because, in Dallas County, the statutory probate court is the exclusive court in which to file all guard-ianships, we reverse the probate court’s order and remand.

FACTUAL AND PROCEDURAL HISTORY

K. Thomas Garland and Judith Anne Garland are the natural parents of Daniel Thomas Garland, who suffers from Down’s syndrome. In 1987, when Daniel Garland was sixteen years of age, Thomas and Judith Garland divorced. The family district court appointed Judith Garland managing conservator of Daniel Garland. Because Daniel Garland suffered from Down’s syndrome at the time of the divorce, the family district court also ordered continuing support payments for him past the age of majority. In 1992, when Daniel Garland was twenty-two years of age, Thomas Garland asked the probate court to appoint him guardian of the estate and person of Daniel Garland. Judith Garland filed a motion to dismiss the application for guardianship because she contended the family district court had exclusive continuing jurisdiction over Daniel Garland. The probate court granted her motion and dismissed the case based on the continuing jurisdiction of the family district court.

GUARDIANSHIP PROCEEDINGS

In one point of error, Thomas Garland contends the probate court erred in dismissing his application for guardianship because the probate court has original, exclusive, and mandatory jurisdiction of all applications for guardianship. He argues that because Daniel Garland is incompetent and is no longer a child, the probate court proceeding is necessary and does not interfere with the continuing jurisdiction of the family district court to modify Daniel Garland’s support payments. He also argues that the Texas Probate Code vests jurisdiction of Daniel Garland’s guardianship in the probate court.

a. Jurisdiction of the Probate Court

The Texas Probate Code provides for the jurisdiction of guardianships, in pertinent part, as follows:

§ 5. Jurisdiction of District Court and Other Courts of Record With Respect to Probate Proceedings and Appeals from Probate Orders.
(c) In those counties where there is a statutory probate court ... all applications, petitions and motions regarding probate, administrations, guardianships, limited guardianships, and mental illness matters shall he filed and heard in such courts ... rather than in the district courts, unless otherwise provided by the legislature....

Tex.PROb.Code Ann. § 5(c) (Vernon Supp. 1993) (emphasis added).

In May 1993 the Texas Legislature amended the Texas Probate Code to include a separate section on guardianships which, in pertinent part, provides:

Sec. 606 District Court and Other Court of Record Jurisdiction.
(c) In those counties in which there is a statutory probate court ... all applications, petitions and motions regarding guardianships, mental illness matters, or other matters addressed by this chapter shall he filed and heard in those courts ... rather than in the district courts, unless otherwise provided by the legislature....

Act of May 30,1993, 73rd Leg., R.S., ch. 957, § 606, 1993 Tex.Sess.Law Serv. 4084, 4087 (Vernon) (to be codified as an amendment to TexPROB.Code by adding Chapter XIII, Part *849 2, Subpart A, § 606) (effective September 1, 1993).

Under both section 5(c) and the new section 606 of the Texas Probate Code, guardianship proceedings in Dallas County shall be filed in the statutory probate court. Id; Tex.PROB.Code Ann. § 5(c) (Vernon Supp. 1993). The statutory language is clear and unambiguous.

Judith Garland contends that the probate court properly dismissed Thomas Garland’s application because any guardianship proceeding should be initiated in the family district court, the court with continuing jurisdiction to modify Daniel Garland’s support order. In support of her contention, she relies on sections 11.05(a), 11.07(b), 14.05(a), and 14.051(b) of the Texas Family Code.

b. Continuing Jurisdiction of the Family District Court

Sections 11.05(a), 11.07(b), 14.05(a), and 14.051 of the Texas Family Code provide, in pertinent part, the following:

§ 11.05 Continuing Jurisdiction.
(a) Except as otherwise provided by this section ... when a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing, exclusive jurisdiction of all parties and matters provided for under this subtitle in connection with the child.
§ 11.07 Commencement of Suit and Petition for Further Remedy.
(b) Except in a motion to modify ... a request for further action concerning a child who is the subject of a suit affecting the parent-child relationship and who is under the jurisdiction of a court with continuing jurisdiction shall be initiated by the filing of a petition as provided in this chapter.
§ 14.05 Support of Child.
(a) The court may order either or both parents to make periodic payments or a lump sum payment, or both, for the support of a child until he or she is 18 years of age in the manner and to the persons specified by the court in the decree.
§ 14.051 Support for a Minor or Adult Disabled Child.
(a) In this section:
(1) “Adult Child” means a child that is 18 years of age or older.
(2) “Child” means a son or daughter of any age.
(b) The court may order either or both parents to provide for the support of a child for an indefinite period and determine the rights, privileges, duties, and powers of the child’s parents for the support of the child if the court finds that:
(1) the child, whether institutionalized or not, requires substantial care and personal supervision because of a mental or physical disability and will not be able to support himself; and
(2) the disability exists, or the cause of the disability is known to exist, before or on the 18th birthday of the child.

Tex.Fam.Code Ann. § 11.07(b) (Vernon 1986) & §§ 11.05(a), 14.05(a), 14.051(a), (b) (Vernon Supp.1993) (emphases added).

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868 S.W.2d 847, 1993 Tex. App. LEXIS 3487, 1993 WL 437768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garland-v-garland-texapp-1993.