COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00317-CV 

IN THE GUARDIANSHIP OF JEFFREY 

HERRON, AN INCAPACITATED 

PERSON

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FROM PROBATE COURT NO. 2 OF TARRANT COUNTY

TRIAL COURT NO. 2012-GD00235-2

MEMORANDUM OPINION1 ON REHEARING

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I. Introduction

After reviewing appellant Amy Herron’s motion for rehearing, we deny the 

motion. We withdraw our opinion of June 26, 2014, and substitute the following 

in its place.

 

1See Tex. R. App. P. 47.4.
2

In two issues, Appellant Amy Herron appeals the trial court’s order finding 

her liable for damage to Appellee Jeffrey Herron’s estate while she was serving 

as his guardian. We affirm.

II. Factual and Procedural Background

This case arises out of an accident that left Jeffrey, Amy’s husband, 

incapacitated. Amy was appointed as guardian of Jeffrey’s person and estate by 

the Parker County Court on November 4, 2010, and posted a $50,000 surety 

bond. On June 4, 2012, the Parker County Court issued a show-cause order 

regarding Amy’s failure to demonstrate the capability of properly performing her 

duties as guardian, but Amy moved to transfer the case to Tarrant County before 

the Parker County Court could rule. The case was transferred to Tarrant County 

Probate Court No. 2 on July 16, 2012, and the probate court appointed Thomas 

Henry to serve as Jeffrey’s guardian ad litem.

Henry’s preliminary report cited numerous problems regarding Amy’s 

actions as guardian. He noted that there was no record of Amy’s having filed an 

oath, that the estate’s inventory was not timely filed, that the inventory and 

annual accounting Amy eventually filed were deficient, that no investment plan 

was filed, that no application for allowance was filed, that no application for 

authority to pay the expenses reflected in the annual accounting or to pay the 

fees of Amy’s counsel was filed, and that there was no indication that notice was 

given to the estate’s creditors or that their claims had been handled. See 

generally Act of May 30, 1993, 73rd Leg., R.S., ch. 957, § 1, 1993 Tex. Gen. 
3

Laws 4081, 4107, 4113, 4115–17, 4126–27, 4129, 4145–46 (adding former 

probate code sections 700, 729, 741, 742, 774, 776, 784, and 855), repealed by

Act of May 19, 2011, 82nd Leg., R.S., ch. 823, § 3.02(a), 2011 Tex. Sess. Law 

Serv. 1901, 2094 (West 2011).2

At an August 10, 2012 conference, the probate court permitted Amy to 

resign as guardian of the estate instead of being removed. Amy then filed her 

final accounting, which the probate court rejected due to the numerous 

deficiencies highlighted by Robert Loudermilk, the probate court’s guardianship 

auditor. The deficiencies noted by Loudermilk include, among other things, that 

the opening figures did not match the inventory, appraisement, and list of claims 

originally approved by the Parker County Court; that no monthly allowance was 

ever established; that the disbursements section listed a “?” for the taxes; that 

the exhibits attached to the accounting indicated that funds were spent on the 

family and not solely on Jeffrey; that no verification of funds was provided; that 

the affidavit at the end of the accounting was incomplete; and that the account 

did not balance. See id.

On July 9, 2013, a hearing was held regarding approval of a settlement 

agreement for the personal injury suit arising from Jeffrey’s accident. Although 

 

2

The repeal of the Texas Probate Code and transfer of its provisions to the 

Texas Estates and Guardianship Code was intended as a recodification only, 

and no substantive change in the law was intended by the legislature. See Act of 

May 19, 2011, 82nd Leg., R.S., ch. 823, § 4.01, 2011 Tex. Sess. Law Serv. 

1901, 2095 (West 2011).
4

the record of that hearing does not show any discussion of Amy’s liability for the 

deficiencies of the estate, the probate court issued an order that day finding that 

Amy and her surety were liable to the estate for the $50,000 bond amount. In its 

order, the probate court stated that it had reviewed and taken judicial notice of 

the contents of its file and that it had “previously expressed, on multiple 

occasions, its concern about the total failure of documents filed by [Amy] and/or 

her counsel of record to comply with the requirements of the Texas Probate 

Code, and the losses and damages caused to [Jeffrey] and his estate by the 

same.” The probate court also stated that it based its order on having reviewed 

the numerous defective documents filed by or on behalf of Amy, the objections 

filed to the same by Henry, and additional defective documents filed on behalf of 

Amy thereafter. Accordingly, having found that Amy had caused loss or damage 

to Jeffrey and his estate of at least $50,000 and in order to prevent further 

damage, the probate court ordered that Amy and her surety were liable for the 

full bond amount.3 This appeal followed.

 

3

In its findings of fact entered after the order, the probate court again 

stated that it had taken judicial notice of the entire contents of its file, recited the 

eleven deficiencies in Amy’s performance as guardian of Jeffrey’s estate, and 

noted that the only realistic prospect for recovery against Amy was on the bond 

because she was destitute and any deficiency assessed against her would 

ultimately be unrecoverable and cause further injury to Jeffrey through the 

accumulation of additional attorney’s fees.
5

III. Analysis

In her first issue, Amy argues that she was denied due process when the 

court sua sponte signed the order finding her liable for the deficiency without 

providing her notice or holding a hearing.4 Our resolution of this appeal is guided 

 

4

Jeffrey’s guardian characterizes the probate court’s order as a postanswer default judgment and argues that Amy failed to preserve her complaint 

because she did not file a motion for new trial.

On rehearing, Amy cites Cunningham v. Parkdale Bank, 660 S.W.2d 810, 

813 (Tex. 1983), to support the same due process complaint she raised in her 

original appellate brief. However, Cunningham is distinguishable from the 

present case. In Cunningham, after a personal judgment was rendered against a 

former administrator for his actions during the pendency of his administration, he 

filed a motion for new trial and argued that the judgment was void because there 

were no pleadings seeking a judgment against him and no citation was issued to 

him personally. Id. at 812. The court held that the trial court erred by issuing the 

judgment when no pleadings had been filed requesting the judgment and the 

former administrator was given no notice or opportunity to explain or defend his 

actions before the judgment was rendered. Id. at 813–14. Here, however, after 

Amy was notified of the order against her, she did not file a motion for new trial. 

Instead, she raised her due process complaint for the first time on appeal. Even 

if we were to assume that the probate court abused its discretion by issuing the 

deficiency order, Amy has waived her complaint by failing to raise the issue in a 

motion for new trial or other post-judgment motion. See Tex. R. App. P. 33.1(a); 

Anderson v. McCormick, Nos. 01-12-00856-CV, 01-12-00857-CV, 2013 WL 

5884931, at *3–4 (Tex. App.—Houston [1st Dist.] Oct. 31, 2013, no pet.) (mem. 

op.) (discussing preservation of due process complaint in guardianship 

proceeding); see also In re L.M.I., 119 S.W.3d 707, 710–11 (Tex. 2003) (holding 

due process complaint was unpreserved when appellant failed to raise it during 

trial or in any post-judgment motion), cert. denied, 541 U.S. 1043 (2004).
6

by the probate code provisions that were in effect at the time that the order was 

signed.5

Under former probate code section 629, the judge of the court in which a 

guardianship is pending has wide latitude to address all matters related to the 

guardianship and the authority to issue all necessary orders. Act of May 30, 

1993, 73rd Leg., R.S., ch. 957, § 1, sec. 629, 1993 Tex. Gen. Laws 4081, 4088, 

repealed by Act of May 19, 2011, 82nd Leg., R.S., ch. 823, § 3.02(a), 2011 Tex. 

Sess. Law Serv. 1901, 2094 (West 2011). Additionally, former section 632(a) 

provides that “a person does not need to be cited or otherwise given notice in a 

guardianship matter except in situations in which this chapter expressly provides 

for citation or the giving of notice.” Act of May 30, 1993, 73rd Leg., R.S., ch. 957, 

§ 1, sec. 632(a), 1993 Tex. Gen. Laws 4081, 4089, repealed by Act of May 19, 

2011, 82nd Leg., R.S., ch. 823, § 3.02(a), 2011 Tex. Sess. Law Serv. 1901, 2094 

(West 2011). None of the former probate code’s provisions expressly provide for 

citation or the giving of notice when a guardian is held liable on the bond for 

deficiencies to the estate. Rather, former section 668 states that when a 

guardian neglects to perform his or her required duties, the guardian and the 

sureties on the guardian’s bond are liable for the “additional costs incurred that 

 

5

The probate court signed the order on July 9, 2013. The repeal of the 

former probate code provisions cited in this opinion became effective on January 

1, 2014. See Act of May 19, 2011, 82nd Leg., R.S., ch. 823, § 3.02(a), 2011 

Tex. Sess. Law Serv. 1901, 2094–95 (West 2011) (to be codified at Texas 

Estates and Guardianship Code §§ 1051.001(a), 1053.101, 1055.102. 1155.152, 

1203.002, 1203.202(c)).
7

are not authorized expenditures under this chapter” and for the “reasonable 

attorney’s fees incurred in removing the guardian or in obtaining compliance 

regarding any statutory duty the guardian has neglected.” Act of June 19, 1993, 

73rd Leg., R.S., ch. 957, § 1, sec. 668, 1993 Tex. Gen. Laws 4081, 4097, 

repealed by Act of May 19, 2011, 82nd Leg., R.S., ch. 823, § 3.02(a), 2011 Tex. 

Sess. Law Serv. 1901, 2094 (West 2011).

Accordingly, based on the provisions listed above, we conclude that the 

probate court was not required to serve Amy with citation or notice before 

entering its order. Furthermore, despite Amy’s assertions that the deficiency was 

not brought to her attention before the order was entered, as set out above, the 

record reveals otherwise. In Henry’s written objections to Amy’s final accounting, 

which detailed the numerous ways in which Amy had neglected her duties as 

guardian and damaged the estate, he stated that the probate court “should and 

indeed must enter a Deficiency Judgment against Amy Herron and/or her 

Surety.” Additionally, in an email dated January 31, 2013, Loudermilk informed 

Amy that her final accounting had not been approved because, among other 

things, the accounting indicated that funds were spent on the family and not 

solely on Jeffrey; no verification of funds was provided; the opening figures did 

not match those found on the inventory, appraisement, and list of claims initially 

approved by the Parker County court; and the account did not balance.6 

 

6

Loudermilk further noted in his correspondence that if any funds “were the 

separate property of Mr. Herron and they were spent during the course of the 
8

Although no formal citation or notice was required,7 Henry’s written objection and 

Loudermilk’s correspondence was sufficient to provide Amy with notice of the 

deficiencies that had accrued during her time as guardian of the estate and that 

were subsequently reflected in the probate court’s order and findings of fact and 

conclusions of law.

Also, under former probate code section 760(b), “the court may 

immediately accept a resignation and appoint a successor without citation or 

notice but may not discharge the person resigning . . . or release the person or 

the sureties on the person’s bond until final order or judgment is rendered on the 

final account of the guardian.” Act of May 16, 2007, 80th Leg., R.S., ch. 614, 

§ 14, sec. 760(b), 2007 Tex. Gen. Laws 1173, 1178, repealed by Act of May 19, 

2011, 82nd Leg., R.S., ch. 823, § 3.02(a), 2011 Tex. Sess. Law Serv. 1901, 2094 

(West 2011). Because no final account had been rendered and Amy had not 

been discharged, she remained a party to the ongoing guardianship proceeding 

 

guardianship, those transactions need to be ratified.” He also noted that “[i]f the 

money spent on the family was Mr. Herron’s separate property, those funds may 

need to be reimbursed to the guardianship estate.”

7Amy attached an affidavit to her reply brief in this appeal, stating that an 

email between her attorney and Loudermilk showed no notice was given and no 

hearing was held. However, because documents attached to appellate briefs are 

not considered part of the record, Amy’s affidavit cannot be considered. See

Tex. R. App. P. 34.1; WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 

451, 465 n.23 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (stating that 

court cannot consider documents attached to appellate briefs and must consider 

case based solely upon the record filed).
9

at the time the probate court issued the deficiency order.8 Accordingly, based on 

the applicable provisions set out above and the fact that Amy had not been 

discharged at the time the order was entered, we overrule her first issue.

In her second issue, Amy argues that there is no evidence to support her 

liability for any deficiency to the estate. However, as the probate court did here, 

a court may take judicial notice of its file at any stage of the proceedings. See

Att’y Gen. v. Duncan, 929 S.W.2d 567, 571 (Tex. App.—Fort Worth 1996, no 

writ). Furthermore, former probate code section 628 states that “record books or 

individual case files, including records on a computer file . . . or certified copies or 

reproductions of records, shall be evidence in any court of this state.” Act of April 

26, 1999, 76th Leg., R.S., ch. 67, § 2, sec. 628, 1999 Tex. Gen. Laws 424, 426, 

repealed by Act of May 19, 2011, 82nd Leg., R.S., ch. 823, § 3.02(a), 2011 Tex. 

Sess. Law Serv. 1901, 2094 (West 2011).

Here, in its findings of fact and conclusions of law, which Amy does not 

challenge,9the probate court stated that the issues and concerns listed by Henry 

 

8

In support of her argument that a suit must be brought to find her liable for 

the deficiency, Amy cites former probate code section 763, which provides that a 

“successor guardian may bring suit on the bond or bonds of the predecessor . . . 

for all the estate that came into the hands of the predecessor and has not been 

accounted for by the predecessor.” See Act of May 30, 1993, 73rd Leg., R.S., 

ch. 957, § 1, sec. 763, 1993 Tex. Gen. Laws 4081, 4124, repealed by Act of May 

19, 2011, 82nd Leg., R.S., ch. 823, § 3.02(a), 2011 Tex. Sess. Law Serv. 1901, 

2094 (West 2011). However, this provision is not applicable here because while 

Amy was allowed to resign, she had not been discharged, and the probate court 

retained the authority to find her liable on the bond for the estate’s deficiency 

attributable to her tenure as guardian. See Act of May 16, 2007, 80th Leg., R.S., 

ch. 614, § 14, sec. 760(b), 2007 Tex. Gen. Laws 1173, 1178 (repealed 2011).
10

in his preliminary report and objections to the final accounting were “verified by 

[the] Court from the contents of documents contained in the Court’s file.” These 

included that Amy had commingled guardianship funds, that the annual 

accounting and exhibits demonstrated on their faces that most of the 

expenditures from the estate were not made for Jeffrey’s benefit, that the filings 

of Amy and her attorneys did not comply with the probate code or the court’s 

procedures, and that tens of thousands of dollars in attorney’s fees and 

expenses were required for the guardian ad litem and successor guardian of the 

estate to review and object to the nonconforming documents and to rectify Amy’s 

improper handling of the estate during her tenure. In Henry’s objections to the 

final accounting, he noted that Amy’s final accounting showed on its face that she 

had expended over $93,632.48 of estate funds for which no court authority had 

been sought or obtained.10

Accordingly, we conclude that the record contains sufficient evidence to 

support the probate court’s decision as to Amy’s liability and the amount of the 

deficiency. Therefore, we overrule Amy’s second issue.

 

9When findings of fact are filed and are unchallenged, they occupy the 

same position and are entitled to the same weight as a jury’s verdict; they are 

binding on an appellate court unless the contrary is established as a matter of 

law or there is no evidence to support the finding. McGalliard v. Kuhlmann, 722 

S.W.2d 694, 696 (Tex. 1986); Inimitable Grp., L.P. v. Westwood Grp. Dev. II, 

Ltd., 264 S.W.3d 892, 902 & n.4 (Tex. App.—Fort Worth 2008, no pet.).

10Henry also stated that he believed that the amount consumed or 

expended without authority was actually significantly higher.
11

IV. Conclusion

Having overruled both of Amy’s issues, we affirm the probate court’s 

judgment.11

/s/ Bob McCoy

BOB MCCOY

JUSTICE

PANEL: LIVINGSTON, C.J., GARDNER and MCCOY, JJ.

DELIVERED: September 11, 2014

 

11Based on our resolution of this appeal, appellee’s “Motion to Strike 

Portions of Appellant’s Reply Brief” is moot.