Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-13-00522-CV

Egna Bishop VILLARREAL,

Appellant

v.

Guillermo Gonzalez 

Guillermo Gonzalez GUERRA,

Appellee

From the 381st Judicial District Court, Starr County, Texas

Trial Court No. DC-09-139

Honorable Jose Luis Garza, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Patricia O. Alvarez, Justice

Delivered and Filed: July 2, 2014

AFFIRMED IN PART, REVERSED AND REMANDED IN PART

This is an appeal from a bench trial. The trial court found in favor of the appellee, 

Guillermo Gonzalez Guerra (“Guerra”), on his claim that he owned, by adverse possession, a 266-

acre tract of land in Starr County, Texas. The appellant, Egna Bishop Villarreal (“Villarreal”), 

argues the judgment must be reversed because the evidence is legally and factually insufficient to 

support the trial court’s findings that she or her predecessors in interest had notice of Guerra’s 

adverse possession. Villarreal further argues the evidence is legally insufficient to support the trial 

court’s award of attorney ad litem fees. We affirm the adverse possession portion of the judgment; 
04-13-00522-CV

however, because there is no evidence to support the award of attorney ad litem fees, we reverse 

this portion of the judgment and remand this case to the trial court for a determination of the 

appropriate amount of attorney ad litem fees.

BACKGROUND

In April 2009, Villarreal filed suit seeking a declaration that she owned an undivided 

8/11ths interest in a 266-acre tract of land in Starr County, Texas (“the property”), free and clear 

of any claim made by Guerra. Villarreal named Guerra and other individuals as defendants in her 

suit.1 The trial court appointed attorneys ad litem to represent some of these individuals, 

specifically the unknown heirs and successors of Erasmo Gonzalez, Manuela G. Canales, and 

Francisca G. Canales. In response to Villarreal’s suit, Guerra filed a counterclaim, seeking a 

declaration that he was the rightful owner of the property based on both the ten year and the twentyfive year adverse possession statutes.

At trial, Guerra testified that he first entered the property in the late 1960s. At the time, 

Villarreal’s grandfather, Guillermo Gonzalez (“Gonzalez”), owned an undivided 8/11ths interest 

in the property. Gonzalez’s siblings, Erasmo Gonzalez,2 Manuela G. Canales, and Francisca G. 

Canales, each owned an undivided 1/11th interest in the property. Guerra offered to lease the 

property from Gonzalez, who was Guerra’s grand uncle. However, Gonzalez refused to lease the 

property to Guerra. Instead, Gonzalez told Guerra he was giving him the property. Gonzalez also 

told Guerra to take care of the property and to not let anyone else on the property. Guerra followed 

Gonzalez’s instructions and took over the property. Guerra started telling others that the property 

belonged to him. Guerra built a gate at the entrance of the property. Guerra placed a lock on the 

1

Although other parties were involved in the trial court proceedings, Guerra and Villarreal are the only parties in this 

appeal.

2

Erasmo was Guerra’s grandfather.

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gate and did not provide anyone else with a key to the gate. The gate was bordered on each side 

by thick, thorny bushes that formed a natural barrier. Guerra also built fences around the perimeter 

of the property. Guerra grazed cattle on the property and was present on the property two to four 

times a week. Over the next four decades, Guerra continued to graze cattle on the land, and made 

numerous improvements to the property, including constructing five ponds, root-plowing and 

chop-rolling large swaths of the property, building a windmill and a shed on the property, and 

installing gas and electricity in an already-existing house. 

Guerra further testified that his wife went to the tax office and attempted to pay the taxes 

on the property, but the tax office would not accept payments from her. Thus, Guerra gave money 

to Gonzalez to pay the taxes on the property. In support of this testimony, Guerra presented checks 

drawn on his checking account, indicating Guerra had paid Gonzalez $400.00 each year between 

1981 and 1986. Guerra testified that everyone in his extended family knew that the property 

belonged to him. Guerra specifically testified that Villarreal’s mother, Arabela, was present when 

Gonzalez gave the property to Guerra. According to Guerra, no one ever challenged Guerra’s claim 

to the property while Gonzalez was alive. Gonzalez died in 1988. After Gonzalez died, two 

individuals entered onto the property and attempted to claim it as their own. Guerra had these 

individuals removed from the property. 

Four witnesses testified that they were familiar with Guerra’s long-time use of the property. 

Ruben D. Saenz recalled going to the property with Guerra in the 1960s when he and Guerra were 

still in high school. Saenz would go with Guerra every weekend to help repair fences or haul water 

for the cattle. In exchange, Guerra would let Saenz hunt for deer on the ranch. Saenz also saw 

Guerra fix the windmill on the property, clear brush, and root plow. Saenz was surprised to learn 

that anyone other than Guerra was claiming an ownership interest in the property. Saenz confirmed 

that there was a gate at the entrance of the property and the gate was always locked. Another friend 

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of Guerra’s, Noel Garcia, testified that he had known Guerra for many years. Garcia started going 

to the ranch with Guerra in the mid-1970s, and went with him several times a year. On these visits, 

they would check the livestock, repair fences, and repair the windmill. Garcia was surprised that 

someone besides Guerra would claim an ownership interest in the property; he never imagined the 

property belonged to anyone else. Finally, Guerra’s two adult sons testified that they grew up 

knowing the property belonged to their father.

Villarreal also testified at trial. According to Villarreal, the money Guerra paid to her 

grandfather, Gonzalez, was not for taxes but for rent. Villarreal took the position that Guerra had 

leased the land from her grandfather and, after her grandfather died, continued to lease the land 

from her mother and her aunts, who inherited her grandfather’s interest in the property. In 1999, 

Villarreal’s mother and her aunts conveyed their interest in the property to Villarreal by deed. 

According to Villarreal, her mother had paid the taxes on the property. In support of this 

contention, Villarreal presented checks drawn on her mother’s checking account from 2001 to 

2009. Villarreal admitted that neither she nor her mother ever had a key to the gate. However, 

according to Villarreal, her grandfather did have a key to the gate. Villarreal had visited the 

property a few times. She recalled visiting the property once with her grandfather shortly before 

he died, and once in the 1990s when she was invited onto the property by Guerra for a family 

gathering. 

The trial court rendered judgment in favor of Guerra. The judgment declared that Guerra 

was the sole owner of the property under the ten year and twenty-five year statutes of limitation 

and dismissed all other pending claims. The trial court filed findings of fact and conclusions of 

law. In its findings, the trial court found that Gonzalez had actual notice that Guerra held the 

property by adverse possession, and that the alleged cotenants had actual and constructive notice 

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that Guerra held the property by adverse possession. Villarreal requested additional findings of 

fact and conclusions of law but this request was denied by the trial court. Villarreal appealed.

ADVERSE POSSESSION REQUIREMENTS

The Civil Practice and Remedies Code defines adverse possession as “an actual and visible 

appropriation of real property, commenced and continued under a claim of right that is inconsistent 

with and hostile to the claim of another person.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.021 

(West 2002). Title acquired by adverse possession is as full and absolute as any other perfected 

title. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.030(a) (West 2002) (“If an action for the 

recovery of real property is barred under this chapter, the person who holds the property in 

peaceable and adverse possession has full title, precluding all claims.”). 

Generally, to establish adverse possession, a claimant must prove: (1) actual possession of 

the disputed property; (2) under a claim of right; (3) that was adverse or hostile to the claim of 

another person and that it was consistently and continuously so for the duration of the statutory 

period. Villarreal v. Chesapeake Zapata, L.P., No. 04-08-00171-CV, 2009 WL 1956387, at *3 

(Tex. App.—San Antonio 2009, pet. denied) (mem. op.); Cherokee Water Co. v. Freeman, 145 

S.W.3d 809, 817 (Tex. App.—Texarkana 2004, pet. denied). “The possession must be of such 

character as to indicate unmistakably an assertion of a claim of exclusive ownership in the 

occupant.” BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 70 (Tex. 2011) (emphasis in original). 

The test for hostility is whether acts performed by the claimant on the land, and the use made of 

the land, were of such a nature and character as to reasonably notify the true owner of the land that 

a hostile claim was being asserted to the property. Villarreal, 2009 WL 1956387, at *3; Masonic 

Bldg. Ass’n of Houston, Inc., v. McWhorter, 177 S.W.3d 465, 472 (Tex. App.—Houston [1st Dist.] 

2005, no pet.). 

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The adverse possession standard that courts apply to cotenants differs from the standard 

that courts impose between strangers. See Marshall, 342 S.W.3d at 70. “In an adverse possession 

claim between cotenants, the proponent must prove ouster—unequivocal, unmistakable, and 

hostile acts the possessor took to disseize other cotenants.” Id. “Cotenants must surmount a more 

stringent requirement because acts of ownership which, if done by a stranger would per se be a 

disseizin, are not necessarily such when cotenants share an undivided interest.” Id. (internal 

quotations omitted). Similarly, in an adverse possession claim involving a landlord and a tenant, 

the proponent must show that the landlord-owner had notice of the hostile nature of the tenant’s 

possession. Bernal v. Chavez, 198 S.W.3d 15, 19 (Tex. App.—El Paso 2006, no pet.); see Todd v. 

Bruner, 365 S.W.2d 155, 161 (Tex. 1963) (recognizing that the adverse possession standard is the 

same for cotenants as it is for landlords and tenants). Ultimately, however, “the test for establishing 

adverse possession, both between strangers and cotenants, is whether the acts unmistakably assert 

a claim of ‘exclusive ownership’ by the occupant.” BP Am. Prod., 342 S.W.3d at 71.

As a preliminary matter, we note that Villarreal contends that Guerra was required to satisfy 

a stringent ouster standard because he was a cotenant. However, the record establishes that Guerra 

was not a cotenant when he first entered the property, and he did not become a cotenant until 1983 

or 1984, when his father died and he inherited an interest in the land.3 Nevertheless, Villarreal 

asserted at oral argument that Guerra was required to satisfy a stringent ouster standard because 

when Guerra first entered the property, Guerra and Gonzalez had a landlord-tenant relationship. 

Based on the evidence before it, we cannot say that the trial court was required to find that Guerra 

and Gonzalez had a landlord-tenant relationship. As will be discussed in greater detail below, there 

was some evidence that Guerra exclusively possessed the property after Gonzalez told Guerra that 

3

The trial court’s findings of fact or conclusions of law do not address Guerra’s status when he entered the property, 

and Villarreal did not address this issue in her request for additional findings of fact and conclusions of law. 

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he was giving him the property. The law provides that possession of land following a verbal gift 

is generally regarded as hostile from its inception and indicates an intent to take the land as an 

owner. Bernal, 198 S.W.3d at 19; Dickson v. Dickson, 993 S.W.2d 735, 738 (Tex. App.—Houston 

[14th Dist.] 1999, no pet.); Heard v. Bowen, 184 S.W. 234, 235-36 (Tex. Civ. App.—San Antonio 

1916, writ ref’d). Possession of land following a verbal gift is adverse and not permissive because 

such a gift violates the statute of frauds and is unenforceable. Bernal, 198 S.W.3d at 19. 

LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE

Villarreal challenges the legal and factual sufficiency of the evidence to support the trial 

court’s findings that (1) Gonzalez had actual notice that Guerra held the property by adverse 

possession, and (2) the alleged cotenants had actual and constructive notice that Guerra held the 

property by adverse possession. 

Standards of Review

In an appeal from a bench trial, the trial court’s findings of fact have the same weight as a 

jury verdict. See Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). We review a trial court’s 

findings of fact under the same legal and factual sufficiency of the evidence standards used when 

determining whether sufficient evidence exists to support an answer to a jury question. Monroe v.

Monroe, 358 S.W.3d 711, 716 (Tex. App.—San Antonio 2011, pet. denied). As the factfinder, the 

trial court is the sole judge of the credibility of the witnesses and the weight to be given their 

testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). The trial court may 

believe or disbelieve the testimony of a witness, in whole or in part, and it may resolve any 

inconsistencies in a witness’s testimony. Dwairy v. Lopez, 243 S.W.3d 710, 713-14 (Tex. App.—

San Antonio 2007, no pet.). We may not pass upon the credibility of the witnesses, or substitute 

our judgment for that of the trial court, even if the evidence would clearly support a different result. 

Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). 

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The test for legal sufficiency is “whether the evidence at trial would enable reasonable and 

fair-minded people to reach the verdict under review.” City of Keller, 168 S.W.3d at 827. In 

making this determination, we credit evidence favoring the finding if a reasonable factfinder could, 

and disregard contrary evidence unless a reasonable factfinder could not. Id. If there is more than 

a scintilla of evidence to support the finding, the legal sufficiency challenge must fail. BMC 

Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). In reviewing a factual 

sufficiency issue, we consider all the evidence supporting and contradicting the finding. Plas-Tex., 

Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We set aside the judgment only if the 

finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and 

unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Actual Notice by Gonzalez

We begin with Villarreal’s arguments that the evidence is legally and factually insufficient 

to support the trial court’s finding that Gonzalez had actual notice that Guerra was claiming sole 

ownership of the property by adverse possession. In this section of her brief, Villarreal argues that 

parts of Guerra’s trial testimony conclusively establish that Guerra never gave Gonzalez notice 

that he was claiming the property by adverse possession. In support of this argument, Villarreal 

claims “[t]he evidence conclusively establishes the opposite of ouster and notice of repudiation” 

because Guerra “admitted that he refused to oust or give notice of repudiation to Gonzalez for any 

reason.” Villarreal directs our attention to parts of Guerra’s trial testimony that she characterizes 

as admissions that must be given conclusive effect. 

A true judicial admission is a formal waiver of proof usually found in pleadings or the 

stipulations of the parties, and is conclusive on the party making it. Mendoza v. Fidelity and Guar. 

Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980). A party’s testimonial declarations that 

are contrary to his position are not judicial admissions but quasi-admissions. Id.; Laredo Medical 

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Group Corp. v. Mireles, 155 S.W.3d 417, 429 (Tex. App.—San Antonio 2004, pet. denied). Quasiadmissions are usually not conclusive on the party making them; they are merely some evidence 

and the trier of fact decides the weight to be given them. Mendoza, 606 S.W.3d at 694. However, 

quasi-admissions will be treated as judicial admissions when the following five elements are 

satisfied: (1) the statement was made during the course of a judicial proceeding, (2) the statement 

was contrary to an essential fact embraced in a theory of recovery or a defense asserted by the 

person giving the testimony, (3) the statement was deliberate, clear, and unequivocal, (4) giving 

conclusive effect to the statement would be consistent with public policy, and (5) the statement 

would not be destructive of the opposing party’s theory of recovery. Id.; Mireles, 155 S.W.3d at 

429.

On cross-examination by Villarreal’s counsel, Guerra testified as follows:

Counsel: I asked you in your deposition: Did you ever tell anyone that you 

were claiming adversely? And you testified, no. Do you recall 

saying that?

Guerra: Yeah. 

Counsel: And I asked you in your deposition: Was the first time that you ever 

claimed adverse possession on this property was [sic] after this 

lawsuit was filed and you testified, yes. Do you remember saying 

that?

Guerra: Yes. 

Counsel: And I asked you in your deposition: How could anyone know if you 

have a stranger [sic], how could anyone know that you were 

claiming adversely against [Gonzalez] and his heirs? And you said, 

they wouldn’t know. Is that your testimony?

Guerra: Yes, sir. 

Guerra’s statements do not qualify as judicial admissions. First, Guerra’s statements were 

not deliberate, clear, and unequivocal. Guerra’s statements were made in response to questions 

about whether Guerra remembered or recalled isolated statements made during his deposition. 

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None of the questions provided any context for Guerra’s deposition testimony. And, some of the 

questions were poorly-phrased and confusing. Second, at least two of the statements were not 

contrary to an essential fact embraced in Guerra’s theory of recovery. To establish his adverse 

possession claim, Guerra was not required to tell others that he was making a claim, nor was he 

required to bring his claim at an earlier time. Because Guerra’s statements were not judicial 

admissions, they do not have conclusive effect. The trial court, as the trier of fact, was therefore 

free to decide the weight to be given to Guerra’s statements.

Villarreal also directs our attention to Guerra’s trial testimony that he always tried to 

maintain a friendly, cordial relationship with Gonzalez, and would never have fought with 

Gonzalez about the property. Villarreal suggests that the lack of hostility between Guerra and 

Gonzalez somehow rendered the evidence legally insufficient. We disagree. In the context of 

adverse possession, the term “hostile” refers to whether a claim is inconsistent with the rights of 

the true owner, not whether the parties are hostile to one another personally. Tran v. Macha, 176 

S.W.3d 128, 132-33 (Tex. App.—Houston [1st Dist.], 2004), rev’d on other grounds, 213 S.W.3d 

913 (Tex. 2006). In other words, there is no requirement that personal animosity exist between the 

parties. Id.

Viewed in the light most favorable to the judgment, the evidence shows that Guerra 

approached Gonzalez in the late 1960s and asked him if he could lease the property to graze cattle. 

Gonzalez refused Guerra’s request to lease the property and gave him the property instead. 

Gonzalez instructed Guerra to take the property and to let no one else on it. Thereafter, Guerra 

placed his cattle on the property and took over the property. Guerra told others, including family 

members, that the property belonged to him. In the early 1970s, Guerra erected a gate at the 

property’s entrance and placed a lock on the gate. He did not provide Gonzalez, or anyone else for 

that matter, with a key to the gate. Guerra expressly stated that the purpose of placing the locked 

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gate on the property was to keep others off the property. As the reviewing appellate court, our role 

is not to substitute our judgment for that of the trial court, even if the evidence would clearly 

support a different result. See Ellis, 971 S.W.2d at 407. Based on the evidence presented, a 

reasonable factfinder could have concluded that Gonzalez had actual notice that Guerra was 

claiming the property by adverse possession. We conclude the evidence was legally sufficient to 

support such a finding.

In support of her factual sufficiency challenge, Villarreal incorporates by reference the 

arguments she made in her legal sufficiency challenge. Villarreal emphasizes Guerra’s previouslydiscussed statement indicating that no one would have known that Guerra was claiming adversely 

to Gonzalez. However, there was ample evidence that Gonzalez knew that Guerra was claiming 

the property adversely to Gonzalez. According to Guerra’s testimony, Gonzalez gave him the 

property and instructed him to prevent others from entering the property. Guerra subsequently 

placed a locked gate on the property and failed to provide Gonzalez, or anyone else for that matter, 

with a key to the lock. Any inconsistencies in Guerra’s testimony must be resolved by the trial 

court. See Dwairy, 243 S.W.3d at 713-14. After considering all of the evidence, we are unable to 

conclude that the trial court’s finding that Gonzalez had actual notice of Guerra’s adverse 

possession was so contrary to the overwhelming weight of the evidence as to be clearly wrong and 

unjust.

Having determined that the evidence was legally and factually sufficient to support the 

finding that Gonzalez had actual notice that Guerra was claiming sole ownership of the property 

by adverse possession, we need not address whether the evidence was legally and factually 

sufficient to support the trial court’s finding that the alleged cotenants had actual and constructive 

notice that Guerra held the property by adverse possession. See TEX. R. APP. P. 47.1 (requiring 

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opinions to be as brief as practicable while addressing every issue raised and necessary to the final 

disposition of the appeal).

Duration 

Next, Villarreal argues the trial court’s judgment must be reversed because there was 

legally and factually insufficient evidence to support the trial court’s findings that Guerra adversely 

possessed the property for the length of time required under the ten year or the twenty-five year 

adverse possession statutes. The ten year adverse possession statute provides that a person must 

bring suit no later than ten years after the day the cause of action accrues to recover real property 

held in peaceable and adverse possession by another who cultivates, uses, or enjoys the property. 

TEX. CIV. PRAC. & REM. CODE ANN. § 16.026(a) (West 2002). The twenty-five year adverse 

possession statute provides that a person must bring suit not later that twenty-five years after the 

day the cause of action accrues to recover real property held in peaceable and adverse possession 

by another who cultivates, uses, or enjoys the property. TEX. CIV. PRAC. & REM. CODE ANN.

§ 16.027 (West 2002).

Here, the evidence showed that Guerra adversely possessed the property beginning in the 

late 1960s and continued to do so until Villarreal filed suit in 2009. Additionally, the evidence 

showed that Gonzalez, who owned an 8/11ths interest in the property when Guerra entered the 

property, never filed suit to recover his interest in the property. Gonzalez died in 1988. We 

conclude the evidence was legally and factually sufficient to support the trial court’s finding that 

Guerra adversely possessed the property for the length of time required under the ten year adverse 

possession statute. 

ADDITIONAL FINDINGS OF FACT

After the trial court filed its findings of fact and conclusions of law, Villarreal filed a 

request for additional findings of fact and conclusions of law. Guerra opposed Villarreal’s request, 

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arguing that the additional findings and conclusions proposed by Villarreal were unnecessary, and 

the trial court’s original findings and conclusions adequately addressed all of the elements 

necessary to support the judgment. The trial court refused to file the additional findings and 

conclusions proposed by Villarreal. On appeal, Villarreal argues that we must presume that the 

trial court’s refusal to file additional findings and conclusions was harmful. We disagree.

After the trial court files findings of fact and conclusions of law, a party may request 

additional findings of fact or conclusions of law. TEX. R. CIV. P. 298. The trial court shall file any 

additional or amended findings and conclusions that are appropriate within ten days after the 

request is filed. Id. The trial court is only required to make additional findings on ultimate issues; 

additional findings that relate to an evidentiary point are improper. Doncaster v. Hernaiz, 161 

S.W.3d 594, 608 (Tex. App.—San Antonio 2005, no pet.). 

“If the record shows the complaining party did not suffer injury, the trial court’s failure to 

make such additional findings does not require reversal.” City of San Antonio v. El Dorado 

Amusement Co., Inc., 195 S.W.3d 238, 243 (Tex. App.—San Antonio 2006, pet. denied). To obtain 

a reversal, the appellant must show from the record that the trial court’s refusal to file additional 

findings of fact and conclusions of law as requested was reasonably calculated to cause and did 

cause the rendition of an improper judgment. Id. at 243-44; Doncaster, 161 S.W.3d at 608. If the 

trial court’s refusal to make additional findings does not prevent an adequate presentation on 

appeal, there is no reversible error. El Dorado Amusement, 195 S.W.3d at 244; Doncaster, 161 

S.W.3d at 608. An appellant is prevented from making an adequate presentation on appeal if she 

is forced to guess the reasons for the trial court’s decision. El Dorado Amusement, 195 S.W.3d at 

244; Doncaster, 161 S.W.3d at 608. An appellant usually does not have to guess the reasons for 

the trial court’s decision when there is only one ground of recovery or a single defense. Larry F. 

Smith, Inc. v. The Weber Co. Inc., 110 S.W.3d 611, 614 (Tex. App.—Dallas 2003, pet. denied). 

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In this case, the record shows Villarreal has suffered no injury. Because adverse possession 

was the only ground of recovery presented, the reasons for the trial court’s decision were apparent. 

Moreover, Villarreal was not prevented from adequately presenting her arguments on appeal. 

Villarreal has failed to show from the record that the trial court’s refusal to file additional findings 

of fact and conclusions of law was reasonably calculated to cause and did cause the rendition of 

an improper judgment. 

ATTORNEY AD LITEM FEES

In its judgment, the trial court awarded attorney ad litem John A. Pope III $12,533.89 as 

reasonable and necessary fees and attorney ad litem Rene P. Montalvo $6,475.00 as reasonable 

and necessary fees. Villarreal was ordered to pay these attorney ad litem fees as costs. See TEX. R.

CIV. P. 244 (requiring the trial court to tax attorney ad litem fees as costs). On appeal, Villarreal 

argues the attorney ad litem fees awarded in the judgment must be reversed because the record 

contains no evidence supporting the amount of attorney ad litem fees awarded. The record before 

us includes the last two pages of Mr. Pope’s motion for attorney ad litem fees. It does not include 

any part of Mr. Montalvo’s motion, nor does it not include any affidavits or billing records. Thus, 

there is nothing in the record to support the amount of attorney ad litem fees awarded. We conclude 

that the portion of the judgment awarding attorney ad litem fees must be reversed.

The trial court was required to appoint attorneys ad litem to represent the defendants in this 

case who were served with citation by publication and failed to file an answer or appear before the 

court. See TEX. R. CIV. P. 244. The trial court was also required to allow the attorneys ad litem to 

be paid a reasonable fee for their services. See id.; Rhodes v. Cahill, 802 S.W.2d 643, 647 (Tex. 

1990). “An attorney ad litem cannot as a practical matter recover his fees from his unknown 

clients.” Rhodes, 802 S.W.2d at 647. “Our rules of civil and appellate practice should therefore be 

read to provide a reasonable fee and source of payment for the necessary efforts of an attorney ad 

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litem.” Id. Therefore, we conclude that this case must be remanded to the trial court for further 

proceedings to determine the appropriate amount of attorney ad litem fees. See TEX. R. APP. P.

43.3(b) (allowing appellate court to reverse and remand cases for further proceedings).

CONCLUSION

We reverse the portion of the judgment awarding attorney ad litem fees and remand this 

case to the trial court for further proceedings to determine the appropriate amount of attorney ad 

litem fees. We affirm the remainder of the judgment.

Karen Angelini, Justice

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