Court of Appeals Tenth Appellate District of Texas
10-24-00286-CV
In the Guardianship of Nathan Daniel Stewart, an Incapacitated Person
On appeal from the County Court of Coryell County, Texas Retired Judge Frank Griffin, presiding Trial Court Cause No. 24-408
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION
In four issues, Barbra Klecka (Mother) appeals from the trial court’s
order appointing David Stewart (Father) as the permanent guardian of the
person of their adult son Nathan Daniel Stewart (Nathan). We will sustain
Mother’s first issue, vacate the trial court’s order, and remand this cause to the
trial court for further proceedings consistent with this opinion.
Background
On January 2, 2024, Father filed an application for appointment as
permanent guardian of Nathan’s person. Father requested that citation issue
for the guardianship application to be served on both Nathan and Mother. Mother was personally served with citation along with Father’s
guardianship application. On January 12, 2024, Mother filed a pro se answer
generally denying the allegations in Father’s guardianship application. On
January 18, 2024, Mother further filed, through counsel, an objection to
Father’s guardianship application, asserting that Nathan was not
incapacitated and that, even if Nathan needed a guardian, Nathan would
object to Father being appointed as his guardian.
A citation also issued in Nathan’s name, but the officer’s return of service
states that “David Stewart” was personally served with Father’s guardianship
application and citation, not Nathan. Nevertheless, Father had filed a motion
seeking appointment of an attorney ad litem for Nathan, and the trial court
appointed an attorney ad litem for Nathan on January 19, 2024. On January
29, 2024, the attorney ad litem filed an answer on Nathan’s behalf.
The final hearing began on June 3, 2024. Nathan’s attorney ad litem
appeared on Nathan’s behalf. At the end of the day, the trial court recessed
the proceedings and continued the hearing to July 12, 2024.
On July 1, 2024, Mother filed her own application for appointment as
guardian of Nathan’s person and estate. The officer’s return of service states
that Nathan was personally served with citation along with Mother’s
guardianship application on July 10, 2024. The final hearing then concluded
on July 12, 2024. Nathan’s attorney ad litem again appeared on Nathan’s
In re Guardianship of Stewart Page 2 behalf and the record before us does not reflect Nathan was present in court
during either session of the final hearing.
The trial court subsequently communicated to the attorneys via email
that it found from the evidence that Nathan “is not competent and that a
guardian must be appointed over his person.” The trial court stated, however,
that the appointment of a guardian of Nathan’s estate was unnecessary at that
time. The trial court then explained that it believed that it was in Nathan’s
best interest that he maintain “significant contact” with both Mother and
Father. The trial court therefore stated that, before making a determination
on the guardian to be appointed, it was ordering Father, Mother, their
attorneys, and the attorney ad litem to confer and determine if an agreement
could be reached to establish a co-guardianship.
Father and Mother were unable to reach an agreement, and, on July 29,
2024, Mother filed a handwritten statement of preference by Nathan, dated
July 25, 2024, naming Mother as the person whom he wanted to be his
guardian. On August 14, 2024, the trial court, however, signed its final order
appointing Father as permanent guardian of Nathan’s person. This appeal
ensued.
Discussion
In her first issue, Mother contends that the trial court did not acquire
personal jurisdiction over Nathan with regard to Father’s guardianship
In re Guardianship of Stewart Page 3 application because Nathan was never personally served with such
guardianship application. Mother argues that the order appointing Father as
permanent guardian of Nathan’s person is therefore void.
“To issue a valid and binding judgment or order, a court must have both
subject-matter jurisdiction over a case and personal jurisdiction over the party
it purports to bind.” In re Guardianship of Fairley, 650 S.W.3d 372, 379 (Tex.
2022) (citing Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 7–8
(Tex. 2021)).
[P]ersonal jurisdiction concerns the court’s power to bind a particular person or party to a judgment. Luciano, 625 S.W.3d at 8. Personal jurisdiction is composed of two elements: (1) the defendant must be amenable to the jurisdiction of the court, and (2) the plaintiff must validly invoke that jurisdiction by valid service of process on the defendant. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985)[ (per curiam)]. Establishing personal jurisdiction over a party requires “citation issued and served in a manner provided for by law.” In re E.R., 385 S.W.3d 552, 563 (Tex. 2012) (quoting Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990)).
Guardianship of Fairley, 650 S.W.3d at 379–80.
“Chapter 1051 of the Estates Code governs the issuance of notice and
service of citation in guardianship proceedings.” Id. at 382. Section 1051.103,
titled “Service of Citation for Application for Guardianship,” provides in
pertinent part:
(a) The sheriff or other officer shall personally serve citation to appear and answer an application for guardianship on:
In re Guardianship of Stewart Page 4 (1) a proposed ward who is 12 years of age or older . . . .
TEX. EST. CODE ANN. § 1051.103(a)(1). Section 1051.103 therefore required
personal service of citation for an application for guardianship on Nathan
because he was a proposed ward older than twelve. See id.
The record indicates that Nathan was not personally served with
Father’s guardianship application. Father appears to acknowledge as much in
his brief. Father nevertheless argues that valid service occurred because
Nathan was personally served with Mother’s guardianship application before
the trial court signed any judgment or order appointing guardian.
But Mother and Father are different parties, and their guardianship
applications seek different relief. Accordingly, Nathan should have been
personally served with Father’s guardianship application, in addition to
Mother’s guardianship application, under section 1051.103(a). See id.; cf. In re
C.T.F., 336 S.W.3d 385, 387–88 (Tex. App.—Texarkana 2011, no pet.) (holding
trial court was without authority to act on intervenors’ petition for intervention
in absence of service of process on defendant even though plaintiff’s petition
for divorce had been properly served on defendant).
Father argues that, even so, we should apply In re Guardianship of
Fairley and conclude that “the defective service, together with representation
by the [attorney] ad litem was sufficient to bring Nathan within the trial
court’s jurisdiction.” We disagree.
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Court of Appeals Tenth Appellate District of Texas
10-24-00286-CV
In the Guardianship of Nathan Daniel Stewart, an Incapacitated Person
On appeal from the County Court of Coryell County, Texas Retired Judge Frank Griffin, presiding Trial Court Cause No. 24-408
CHIEF JUSTICE JOHNSON delivered the opinion of the Court.
MEMORANDUM OPINION
In four issues, Barbra Klecka (Mother) appeals from the trial court’s
order appointing David Stewart (Father) as the permanent guardian of the
person of their adult son Nathan Daniel Stewart (Nathan). We will sustain
Mother’s first issue, vacate the trial court’s order, and remand this cause to the
trial court for further proceedings consistent with this opinion.
Background
On January 2, 2024, Father filed an application for appointment as
permanent guardian of Nathan’s person. Father requested that citation issue
for the guardianship application to be served on both Nathan and Mother. Mother was personally served with citation along with Father’s
guardianship application. On January 12, 2024, Mother filed a pro se answer
generally denying the allegations in Father’s guardianship application. On
January 18, 2024, Mother further filed, through counsel, an objection to
Father’s guardianship application, asserting that Nathan was not
incapacitated and that, even if Nathan needed a guardian, Nathan would
object to Father being appointed as his guardian.
A citation also issued in Nathan’s name, but the officer’s return of service
states that “David Stewart” was personally served with Father’s guardianship
application and citation, not Nathan. Nevertheless, Father had filed a motion
seeking appointment of an attorney ad litem for Nathan, and the trial court
appointed an attorney ad litem for Nathan on January 19, 2024. On January
29, 2024, the attorney ad litem filed an answer on Nathan’s behalf.
The final hearing began on June 3, 2024. Nathan’s attorney ad litem
appeared on Nathan’s behalf. At the end of the day, the trial court recessed
the proceedings and continued the hearing to July 12, 2024.
On July 1, 2024, Mother filed her own application for appointment as
guardian of Nathan’s person and estate. The officer’s return of service states
that Nathan was personally served with citation along with Mother’s
guardianship application on July 10, 2024. The final hearing then concluded
on July 12, 2024. Nathan’s attorney ad litem again appeared on Nathan’s
In re Guardianship of Stewart Page 2 behalf and the record before us does not reflect Nathan was present in court
during either session of the final hearing.
The trial court subsequently communicated to the attorneys via email
that it found from the evidence that Nathan “is not competent and that a
guardian must be appointed over his person.” The trial court stated, however,
that the appointment of a guardian of Nathan’s estate was unnecessary at that
time. The trial court then explained that it believed that it was in Nathan’s
best interest that he maintain “significant contact” with both Mother and
Father. The trial court therefore stated that, before making a determination
on the guardian to be appointed, it was ordering Father, Mother, their
attorneys, and the attorney ad litem to confer and determine if an agreement
could be reached to establish a co-guardianship.
Father and Mother were unable to reach an agreement, and, on July 29,
2024, Mother filed a handwritten statement of preference by Nathan, dated
July 25, 2024, naming Mother as the person whom he wanted to be his
guardian. On August 14, 2024, the trial court, however, signed its final order
appointing Father as permanent guardian of Nathan’s person. This appeal
ensued.
Discussion
In her first issue, Mother contends that the trial court did not acquire
personal jurisdiction over Nathan with regard to Father’s guardianship
In re Guardianship of Stewart Page 3 application because Nathan was never personally served with such
guardianship application. Mother argues that the order appointing Father as
permanent guardian of Nathan’s person is therefore void.
“To issue a valid and binding judgment or order, a court must have both
subject-matter jurisdiction over a case and personal jurisdiction over the party
it purports to bind.” In re Guardianship of Fairley, 650 S.W.3d 372, 379 (Tex.
2022) (citing Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 7–8
(Tex. 2021)).
[P]ersonal jurisdiction concerns the court’s power to bind a particular person or party to a judgment. Luciano, 625 S.W.3d at 8. Personal jurisdiction is composed of two elements: (1) the defendant must be amenable to the jurisdiction of the court, and (2) the plaintiff must validly invoke that jurisdiction by valid service of process on the defendant. Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 200 (Tex. 1985)[ (per curiam)]. Establishing personal jurisdiction over a party requires “citation issued and served in a manner provided for by law.” In re E.R., 385 S.W.3d 552, 563 (Tex. 2012) (quoting Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990)).
Guardianship of Fairley, 650 S.W.3d at 379–80.
“Chapter 1051 of the Estates Code governs the issuance of notice and
service of citation in guardianship proceedings.” Id. at 382. Section 1051.103,
titled “Service of Citation for Application for Guardianship,” provides in
pertinent part:
(a) The sheriff or other officer shall personally serve citation to appear and answer an application for guardianship on:
In re Guardianship of Stewart Page 4 (1) a proposed ward who is 12 years of age or older . . . .
TEX. EST. CODE ANN. § 1051.103(a)(1). Section 1051.103 therefore required
personal service of citation for an application for guardianship on Nathan
because he was a proposed ward older than twelve. See id.
The record indicates that Nathan was not personally served with
Father’s guardianship application. Father appears to acknowledge as much in
his brief. Father nevertheless argues that valid service occurred because
Nathan was personally served with Mother’s guardianship application before
the trial court signed any judgment or order appointing guardian.
But Mother and Father are different parties, and their guardianship
applications seek different relief. Accordingly, Nathan should have been
personally served with Father’s guardianship application, in addition to
Mother’s guardianship application, under section 1051.103(a). See id.; cf. In re
C.T.F., 336 S.W.3d 385, 387–88 (Tex. App.—Texarkana 2011, no pet.) (holding
trial court was without authority to act on intervenors’ petition for intervention
in absence of service of process on defendant even though plaintiff’s petition
for divorce had been properly served on defendant).
Father argues that, even so, we should apply In re Guardianship of
Fairley and conclude that “the defective service, together with representation
by the [attorney] ad litem was sufficient to bring Nathan within the trial
court’s jurisdiction.” We disagree.
In re Guardianship of Stewart Page 5 We agree that “unlike challenges to subject-matter jurisdiction,
objections to personal jurisdiction generally can be waived, and a party may
consent to the personal jurisdiction of a court.” Guardianship of Fairley, 650
S.W.3d at 380 (citing In re Fisher, 433 S.W.3d 523, 532 (Tex. 2014)) (emphasis
added). However, chapter 1051 of the Estates Code indicates that a proposed
ward cannot waive personal service. See TEX. EST. CODE ANN. § 1051.105 (“A
person other than the proposed ward . . . may, by writing filed with the clerk,
waive the receipt of notice or the issuance and personal service of citation
either in person or through an attorney ad litem.”) (emphasis added); see also
In re Martinez, No. 04-07-00558-CV, 2008 WL 227987, at *1 (Tex. App.—San
Antonio Jan. 30, 2008, orig. proceeding) (mem. op.); In re Guardianship of
Erickson, 208 S.W.3d 737, 742–43 (Tex. App.—Texarkana 2006, no pet.) (“The
Probate Code implies that a proposed ward may not waive jurisdictional
procedures.”). Furthermore, “an attorney ad litem may not waive personal
service of citation” for the proposed ward. TEX. EST. CODE ANN. § 1051.055(e);
see Guardianship of Fairley, 650 S.W.3d at 387. Accordingly, failure to
personally serve an application for guardianship on a proposed ward deprives
the court of jurisdiction. Gauci v. Gauci, 471 S.W.3d 899, 901–02 (Tex. App.—
Houston [1st Dist.] 2015, no pet.); see Martinez, 2008 WL 227987, at *1–2.
In re Guardianship of Stewart Page 6 In Guardianship of Fairley, the Texas Supreme Court nevertheless did
conclude that a trial court properly exercised personal jurisdiction over the
proposed ward despite
technical defects in service . . . because it [was] undisputed that [the proposed ward] was personally served with the applications for guardianship, [the proposed ward] entered a general appearance and participated in the proceedings through his attorney ad litem, and [the petitioner] failed to establish that any deficiency with respect to the method of personal service rose to the level of a violation of due process.
650 S.W.3d at 390. The supreme court reasoned that while an attorney ad
litem cannot waive service altogether, section 1051.055(e) does not “prohibit a
general appearance and waiver of technical service defects when the proposed
ward has been served and has opted through his attorney to submit to the
court’s jurisdiction.” Id. at 388.
But here, Nathan was never personally served with one of the parties’
guardianship applications, i.e., his Father’s guardianship application. Cf. id.
at 387–88 (“[I]t is undisputed that [the proposed ward] was personally served
with both applications for guardianship.”). Accordingly, the complaint in this
case is not about a technical defect in service but about a lack of service
altogether. See id.
We conclude that because Nathan was not personally served with
citation of Father’s guardianship application before the trial court entered its
order appointing Father as guardian, the trial court lacked personal
In re Guardianship of Stewart Page 7 jurisdiction over Nathan to enter such an order. See Gauci, 471 S.W.3d at 901–
02; see Martinez, 2008 WL 227987, at *1–2. Furthermore, because the trial
court lacked personal jurisdiction over Nathan, the order appointing Father as
guardian is void. See Gauci, 471 S.W.3d at 902–03; see Martinez, 2008 WL
227987, at *2.
We sustain Mother’s first issue, and because our determination of
Mother’s first issue is dispositive of this appeal, we need not reach her second,
third, and fourth issues.
Conclusion
In light of the foregoing, we vacate the trial court’s order appointing
Father as the permanent guardian of Nathan’s person and remand this cause
to the trial court for further proceedings consistent with this opinion.
MATT JOHNSON Chief Justice
OPINION DELIVERED and FILED: June 25, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Vacated and remanded CV06
In re Guardianship of Stewart Page 8