In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-19-00233-CV

___________________________

On Appeal from Probate Court No. 2

Tarrant County, Texas

Trial Court No. 2018-GD00257-2

Dissenting Memorandum Opinion by Chief Justice Sudderth

IN THE GUARDIANSHIP OF N.P., AN INCAPACITATED PERSON
2

DISSENTING MEMORANDUM OPINION

Leading questions with “yes” or “no” answers do not clear and convincing 

evidence make. At least that is what the trial judge—who was the sole judge of the 

credibility of the witnesses and weight to be given their testimony—determined. 

Because I would not disturb the trial court’s assessment of the weight of the evidence 

on appeal, I respectfully dissent.

Because guardianship is a judicial process by which citizens may be deprived of 

their rights and liberties, the Texas Legislature has enacted a protective statutory 

scheme with two major obstacles to obtaining full guardianship over a proposed ward. 

First, proof of certain essential findings must be by clear and convincing evidence.1

 

Second, before a guardian may be appointed—indeed, at all stages of the proceedings, 

even after a guardianship has been approved—the court is required to determine 

whether less restrictive alternatives to a full guardianship exist that would avoid the 

need for a full guardianship.2

1

For example, prior to appointing a guardian for a proposed ward, the court 

must find by clear and convincing evidence that the proposed ward is incapacitated, 

that appointment of a guardian would be in the proposed ward’s best interests, and 

that the appointment of a guardian would protect the proposed ward’s rights or 

property. Tex. Est. Code Ann. § 1101.101(a)(1)(A–C).

2

Before appointing a guardian, the court must find by clear and convincing 

evidence that “alternatives to guardianship that would avoid the need for the 

appointment of a guardian . . . and . . . supports and services available to the proposed 

ward that would avoid the need for the appointment of a guardian have been 

considered and determined not to be feasible.” Tex. Est. Code Ann.

§ 1101.101(a)(1)(D–E); see id. § 1151.351 (requiring supports and services to be 
3

The statutory scheme makes sense. Certainly, the removal of a person’s 

fundamental rights is of such weight and gravity that due process should require an 

applicant to justify, in a clear and convincing manner, that nothing short of a full 

guardianship is needed before a proposed ward is permanently deprived of her rights. 

Clear and convincing proof is that “degree of proof which will produce in the mind of 

[the factfinder] a firm belief or conviction as to the truth of the allegations sought to 

be established.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994) (quoting State 

v. Addington, 588 S.W.2d 569, 570 (Tex. 1979)).

By adopting the clear and convincing standard in these proceedings, the 

legislature deliberately imposed a stringent burden of proof on the applicants here to 

establish that the permanent removal of N.P.’s right to vote, marry, and operate a 

motor vehicle would be in her best interest and would serve to protect her rights or 

property. The burden of proof fell to the applicants to offer clear and convincing 

proof,

3 and it was the duty of the judge to hold the applicants to the standard

considered when the guardian communicates the ward’s Bill of Rights to the ward); 

§ 1054.104 (requiring supports and services to be considered during court visits); 

§ 1201.052 (requiring supports and services to be considered during the court’s annual 

review).

3

The majority’s observation that many courts in Texas have promulgated 

checklists and other procedures to ensure that guardianship proceedings be “smooth 

and expeditious” does not abrogate the need to provide the requisite proof. 

“Everybody else is doing it” is not a substitute for following the standards imposed by 

law.
4

imposed by law.

4

 Here, having found that the applicants had failed to discharge their 

burden of proof as to N.P’s right to vote, marry, and operate a motor vehicle, the 

court declined to award a full guardianship and instead elected a limited guardianship 

allowing N.P. to retain her right to vote, marry, and operate a motor vehicle.

As proof with regard to these three rights, the trial court had before it the 

following evidence: (1) testimony of Father, (2) testimony of Mother, (3) N.P.’s own 

testimony, (4) Dr. Nagireddy’s Certificate of Medical Examination, and (4) Dr. 

Nagireddy’s affidavit. While all four provide some evidence, in the form of opinions,

that N.P.’s right to vote, marry, and operate a motor vehicle should be removed, none 

provide any underlying facts or reasons to support the opinions offered.

5

As to Father’s testimony, he provided only the barest and most minimum of 

evidence, all of which was elicited from leading questions to which Father simply 

testified “yes”:

Q: Do you also concur with Dr. Nagireddy that your daughter 

should retain no rights, including the right to vote, determine whether 

she gets married, determine her residence or operate a motor vehicle; do 

you concur with that?

4

Likewise, the majority’s observation that, according to Estates Code Section 

1055.101, the rules relating to witnesses and evidence in guardianship proceedings are

applied only “to the extent practicable” is misplaced. Tex. Est. Code Ann. 

§ 1055.101. The clear and convincing standard of proof is not a mere rule of evidence 

or procedure; it is the law, and it should be applied whether practicable or not.

5

Nor was any evidence offered of “recurring acts or occurrences in the 

preceding six months” related to N.P.’s capacity to vote, to marry, or to operate a 

motor vehicle. See Tex. Est. Code Ann. § 1101.102.
5

A: Yes.

. . . .

Q: And in fact, if you told her to do something and she said yes, 

would you say that she’s just a passive participant and doesn’t fully 

understand what she’s consenting to?

A: Yes.

. . . .

Q: And she is not able to independently vote without undue 

influence. Is that correct?

A: Yes.

. . . .

Q: And do you also agree with the doctor that your daughter 

cannot . . . make personal decisions regarding residence, voting, 

operating a motor vehicle, or marriage?

A: Yes.

Mother’s testimony was even more truncated:

Q: Did you understand all the answers that your husband gave?

A: Yes, sir.

Q: If I ask you those same questions, or they ask you those same 

questions, would your answers be substantially the same?

A: Yes.

And, as to these three specific rights—the right to vote, the right to marry, and 

the right to operate a motor vehicle—N.P.’s testimony provided even less 

information. At best, N.P. provided no testimony about these three rights specifically
6

and only general evidence indicating that she needed her family’s support to make 

“the right decisions”:

Q: . . . So since you’ve turned 18 - -

A: Yes.

Q: Okay. You are an adult.

A: Yes.

Q: And did you know that you can do what you want?

A: Yeah, but I can’t.

Q: Oh, but you can’t? Why can’t you?

A: Because I don’t think I would make the right decisions.

Q: You don’t believe that you would make the right decisions?

A: No. I don’t think I would.

. . . .

Q: Okay. And do you want this judge, Judge Allen here, today, 

to grant this guardianship - -

A: Yes.

Q: - - that would appoint your mom and dad to be your 

guardian?

A: Yes.

Q: . . . And why do you want them to be your guardian?

A: Because I’m not capable of doing things without my family.

While the Certificate of Medical Examination carried with it the imprimatur of 

a medical doctor, on the issue of whether N.P.’s rights to vote, to marry, or to operate 
7

a motor vehicle should be removed, Dr. Nagireddy’s conclusions were likewise 

cursory. At one place in the form, Dr. Nagireddy simply responded with check marks 

to the following prompt: “Is the Proposed Ward able to initiate and make responsible 

decisions concerning himself or herself regarding the following.” As to the three 

categories, “Safely operate a motor vehicle,” “Vote in a public election,” and “Make 

decisions regarding marriage,” Dr. Nagireddy checked “No.” At a second place on 

the form, Dr. Nagireddy checked a box labeled, “Total” to indicate that “The 

Proposed Ward is totally without capacity (1) to care for himself or herself and (2) to 

manage his or her property.”6

 And, finally, in Dr. Nagireddy’s affidavit, the doctor 

averred that, “Based on my medical expertise and to a reasonable medical probability, 

without a guardian, I do not believe that there are available supports and services that 

would enable [N.P.] to . . . (d) make personal decisions regarding residence, voting, 

operating a motor vehicle, or marriage.”

The evidence recited above was all that was offered to support the divesting of 

N.P. of her rights to vote, to marry, and to operate a motor vehicle. Even looking at 

the evidence in light most favorable to the applicants, rather than the factfinder

(which would reverse the standard of review on appeal), I have no difficulty 

6

As the majority points out, at one place on the form, Dr. Nagireddy checked 

two contradictory boxes in error, rather than correctly choosing between two options, 

but the majority did not find the error to be “material.” While it might not be

material to the issues before us, it does highlight the hazards of checklist evidence and 

might give a trial judge pause to consider the reliability of other evidence provided 

through check marks on the same document.
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understanding how, at the conclusion of the hearing, the trial court was not persuaded 

by clear and convincing evidence of the need to divest N.P. of her right to vote, or of 

her right to marry, or of her right to operate a motor vehicle.7

As to the issue of supports and services, the entire guardianship process is 

premised on the concept that courts must seek any less restrictive alternatives, both 

formal and informal, to full guardianship if supports and services exist and are 

feasible.8

 Tex. Est. Code Ann. § 1001.001. In this case, supports and services means 

resources and assistance—both formal and informal—that would enable N.P. to

make personal decisions regarding voting, marrying, and operating a motor vehicle.9

Id. § 1002.031. By requiring judges to consider supports and services alternatives

before ordering a full guardianship, the law juxtaposes the desire to protect a 

7

To the extent that the majority faults the trial judge for not “closely 

question[ing]” the witnesses here, the majority misplaces the burden of providing 

clear and convincing evidence. The burden is not on the judge to supply the 

evidence. Moreover, the judge is not an advocate and should not be faulted for not

acting like one.

8

The majority observes that “[n]o witness or report or medical examination 

suggested that anything less than a full guardianship of the person would be 

appropriate for [N.P.] or that any feasible alternatives to guardianship or feasible 

supports and services existed that would avoid the need for a full guardianship.” With 

respect, that also reverses the burden of proof.

9

At best, under the limited guardianship N.P. could only attempt to operate a 

motor vehicle. The legal operation of a motor vehicle requires a license. To receive a 

Texas driver’s license, N.P. would have to take and pass both “knowledge and driving 

tests.” Tex. Dep’t of Public Safety, How to Apply for a Texas Driver License,

https://www.dps.texas.gov/driverlicense/applyforlicense.htm (last visited Dec. 4, 

2020).
9

proposed ward from making bad or harmful decisions against the right of an 

individual to self-determination, the freedom of choice, and the opportunity for 

human development through learning from decisions made. Full guardianship 

contradicts the promotion of self-determination as well as the development of the 

skills necessary for self-determination. And achieving the right balance between these 

competing desires—the desire to prevent harm and the desire to foster selfdetermination—is of critical importance because, in reality, once a full guardianship is 

established, it is unlikely, if not impossible, to undo it.

The law recognizes that with support and guidance from others, even those 

with severe intellectual disabilities might be able to make some choices and decisions 

for themselves and, if so, should be allowed to do so. Family members, friends, and 

trusted advisors are a type of informal supports and services and, in fact, are the type 

of supports and services that everyone in society who cares about making sound 

choices uses from time to time. Just as individuals without intellectual disabilities

often consult family members, friends, or trusted advisors in making important life 

decisions, those with intellectual disabilities should be allowed to do so before their 

decision-making rights are permanently stripped from them.

Contrary to Dr. Nagireddy’s opinion that there were no available supports and 

services that would enable N.P. to make decisions about voting, marrying, or 

operating a motor vehicle, the record established that N.P. has available supports and 

services to her. N.P. acknowledged that she needed help from her family to make 
10

good choices. Her appreciation for the need of assistance from her family in this 

regard, combined with her family’s obvious willingness to provide such assistance, is 

evidence that supports and services—albeit unstructured and informal—are currently 

available as an alternative to full guardianship.

I take particular issue with regard to N.P.’s right to vote. The right to vote is a 

precious one; permanent disenfranchisement should not be imposed on such meager 

evidence as was provided here. As to Father’s “yes” answer to the question of 

whether N.P. is not able to independently vote without undue influence, I would 

postulate that most voters, at some point, have discussed with others (including family 

members or trusted friends) how they will vote and why. Given N.P.’s testimony that 

she relies on her family to help her make good decisions, I would expect her to do the 

same. Seeking and considering such input and advice does not mean that the voter is

not “independently vot[ing] without undue influence.” It simply acknowledges that 

voters make informed decisions of this nature by considering the opinions of those 

they trust. If it were not so, then why would candidates and causes seek endorsement 

from influential members of the community?

That this was an uncontested case should not relax these standards. Indeed, in 

such circumstances, heightened vigilance might be required to ensure that a proposed 

ward’s rights are not being trampled upon by those who—even with laudable and 

benevolent motivations and with sincere conviction that full guardianship is necessary 

to protect the proposed ward from harm—would seek to exercise more control over 
11

an individual than the law or evidence allows.10 In these proceedings, when the stakes 

are so high, the trial court rightfully acts as a gatekeeper, and I cannot fault the trial 

court here for assuming that role.

Because there is some evidence supporting the trial court’s determination that 

alternatives to a full guardianship were both feasible and available, and because the 

evidence offered was scant, thus supporting the trial court’s determination that the 

clear and convincing burden of proof had not been met, I would hold that the trial 

court did not abuse its discretion by granting a limited guardianship in lieu of a full 

one as to N.P.’s right to vote, to marry, and to operate a motor vehicle.

Because the majority holds otherwise, I respectfully dissent.

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Delivered: December 10, 2020

10Indeed, Dr. Nagireddy recommended that N.P. not attend the guardianship 

hearing at all, opining that she would not be able to “attend, understand, and 

participate” in it. The record belies this opinion and provides an example of why the 

trial court cannot relax standards and accept all evidence offered as true just because 

no one argued the point.