Opinion filed December 10, 2010

In The

Eleventh Court of Appeals 

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No. 11-10-00353-CV

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IN RE JOSEFINA MORENO

Original Mandamus Proceeding

M E M O R A N D U M O P I N I O N

Juan Moreno and Jaime Moreno filed a petition for writ of mandamus complaining of the 

trial court’s order appointing a temporary guardian for their mother, Josefina Moreno. Because 

Juan and Jaime have not carried their burden of proof, we deny the petition. 

I. Background Facts

Delfa Rodriguez, Josefina’s daughter, filed an application for the appointment of a 

temporary guardian of the person and estate of Josefina. The trial court scheduled a hearing. 

Juan and Jaime filed a motion for continuance. The trial court denied their motion and 

conducted the hearing. The trial court found by clear and convincing evidence that an imminent 

necessity existed for the appointment of a temporary guardian, and it appointed Delfa temporary 

guardian of the person and estate of Josefina. The trial court gave Delfa the authority to consent 

to medical treatment for Josefina; to make arrangements for Josefina’s housing, including the 

authority to place her in an assisted care facility; to administer any government funds Josefina 

received; and to apply for insurance or public benefits in Josefina’s name.
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II. Issues

Juan and Jaime challenge this order with four issues. They argue that the evidence was 

insufficient because Delfa’s application was based upon an outdated and incomplete physician’s 

report, that the trial court abused its discretion by denying their motion for continuance, that the 

trial court erred by naming Delfa temporary guardian, and that the trial court denied them their 

due process rights.

III. Standard of Review

To be entitled to the extraordinary relief of a writ of mandamus, Juan and Jaime must 

show that the trial court abused its discretion and that there is no adequate appellate remedy. In 

re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004). A trial court abuses its 

discretion if it reaches a decision so arbitrary and unreasonable as to constitute clear and 

prejudicial error of law or if it clearly fails to correctly analyze or apply the law. In re Cerberus 

Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding).

Clear and convincing evidence means the measure or degree of proof that will produce in 

the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to 

be established. TEX. FAM. CODE ANN. § 101.007 (Vernon 2008). When reviewing factual 

findings required to be made by clear and convincing evidence, we apply a standard of review 

that reflects this burden of proof. In evaluating the legal sufficiency of the evidence, we review 

all the evidence in the light most favorable to the finding to determine whether a reasonable 

factfinder could have formed a firm belief or conviction that the finding was true. In re J.F.C.,

96 S.W.3d 256, 266 (Tex. 2002). In doing so, we assume the factfinder resolved disputed facts 

in favor of the finding if a reasonable factfinder could do so, and we disregard all evidence that a 

reasonable factfinder could have disbelieved or found to have been incredible. Id. In a factual 

sufficiency review, we must also determine whether a factfinder could reasonably form a firm 

belief or conviction about the truth of the allegations. Id. If, in light of the entire record, the 

disputed evidence that a reasonable factfinder could not have credited in favor of the finding is 

so significant that a factfinder could not have reasonably formed a firm belief or conviction, then 

the evidence is factually insufficient. Id.
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IV. Discussion

A. Sufficiency of the Evidence.

Juan and Jaime complain first that the trial court erred when it found that Josefina was 

totally incapacitated because Delfa did not file a medical report in compliance with TEX. PROB.

CODE ANN. § 687 (Vernon Supp. 2010). Juan and Jaime, however, fail to appreciate that this 

was not a guardianship proceeding but was a temporary guardianship proceeding. Consequently, 

the application was governed by Section 875.

Section 875 does not require a medical report or a recent medical exam. Delfa’s 

application for temporary guardianship did, however, include a medical report. The physician’s 

name is illegible, but the report indicates that the physician saw Josefina six times from 

January 5, 2010, through June 22, 2010. The physician reported that Josefina suffers from 

several physical conditions, including Parkinson’s disease; that she has “SEVERE” cognitive 

impairment, suffering from Alzheimer’s dementia and anxiety disorder; and that she is totally

incapacitated.

Juan and Jaime complain that, because the physician last saw Josefina on June 22, the 

trial court could not consider these findings. Section 687 requires that the physician’s report be

less than 120 days old and be based upon an examination performed not earlier than the 120th

day before the filing of the application. Delfa filed her application on October 29. Josefina’s 

last exam was, therefore, 129 days before the filing of the application. Nonetheless, the trial 

court did not err by considering the physician’s report. First, Section 687 does not apply to an 

application for temporary guardianship. Second, Juan and Jaime did not object to the report at 

any time before or during the hearing.

The date of the last examination is a relevant factor, but it does not require rejection of 

the physician’s findings. The trial court could consider that the physician’s findings were 

corroborated by lay witnesses. Lesvia Vela, a friend of Josefina, testified that it is obvious that 

Josefina suffers from Parkinson’s and dementia. Delfa testified that her mother has declined. 

Delfa’s daughter, Erika Rodriguez, testified that her grandmother has deteriorated and that she 

needs to be taken care of. The physician’s report was contradicted by one witness, Ben 

Dominguez. He works for the Department of Family and Protective Services, and he 

investigated allegations involving Josefina. According to Dominguez, the Department 

determined that Josefina did have the mental capacity to make her own decisions. The trial court 
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could, however, reasonably conclude that a physician was in a better position to evaluate 

Josefina’s competency than the Department. The trial court could also consider that the 

physician’s determination was based upon several examinations and that Parkinson’s and 

dementia are permanent and debilitating conditions. If so, the trial court could find the evidence 

that Josefina was incapacitated credible and could form a firm belief or conviction that she was 

in need of a temporary guardian. Issue One is overruled.

B. Continuance.

Juan and Jaime next complain that the trial court abused its discretion by denying their 

motion for continuance. They asked the court to continue the hearing to give them more time to 

secure an expert witness. Section 875(f)(1) requires the trial court to hold a hearing on an 

application for appointment of a temporary guardian within ten days of the filing of the 

application unless the hearing date is postponed pursuant to Section 875(f)(2). In this instance,

the court can postpone the hearing for a period not to exceed thirty days after the filing date of 

the application. The application was filed on October 29. The hearing was held on 

November 23. Juan and Jaime’s motion for continuance reflects that the hearing had been 

previously reset once, but the mandamus record does not indicate why.

The trial court did not abuse its discretion by denying the motion for continuance. The 

court was required to hold the hearing within thirty days of October 29. Because November 25 

was Thanksgiving, the November 23 setting was, essentially, at the end of the statutory 

deadline. The court could, potentially, have moved the hearing one day to November 24, but it is 

clear from the record that this would not have allowed Juan and Jaime time to secure an expert.

Issue Two is overruled.

C. Delfa’s Appointment.

Juan and Jaime argue in their third issue that the trial court erred by appointing Delfa 

temporary guardian because (1) Josefina fears her, (2) Delfa expelled Josefina from her house, 

and (3) Josefina had expressed a preference to stay with her sons. Despite the disparaging 

comments about Delfa in the wording of their third issue, Juan and Jaime do not cite this court to 

a single record reference supporting the allegations that Josefina fears Delfa or that Delfa 

expelled Josefina from her home. We have independently reviewed the entire record and find 

absolutely no evidence to support either accusation. There are cross-examination questions and 

side-bar comments from counsel suggesting all manner of bad behavior by Delfa and her 
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witnesses, but these accusations were always denied and their denials were never refuted by any 

witness. Counsel’s comments are not evidence, and these accusations should not have been 

repeated in this manner without evidentiary support.

Dominguez did testify that Josefina expressed a desire to stay with one of her sons rather 

than live with Delfa. But Erika testified that last September her grandmother called and said that 

she wanted to come back. Erika and her father went to Jaime’s house, but he prevented them 

from taking Josefina. And by this time, Josefina had changed her mind and had decided to stay. 

According to Erika, the time from Josefina’s phone call to her subsequent decision to stay with 

Jaime was only fifteen minutes. If the trial court found Erika’s testimony credible, it could 

reasonably discount any expression of preference by Josefina.

The trial court could reasonably consider evidence that Delfa had taken care of both of 

her parents for several years and that, prior to her deterioration, Josefina had been appreciative of 

this support. The trial court could similarly consider testimony from a hospice nurse, who 

provided services to Josefina’s husband, that Delfa provided her parents with excellent care; 

Dominguez’s testimony that Adult Protective Services investigated a complaint against Delfa 

and found no grounds for any charges against her; and Delfa’s testimony that she was very 

knowledgeable about her mother’s health and had made arrangements in her home to take care of 

her mother. For example, Delfa had a room that would accommodate a wheelchair and a 

bathroom with bars in the shower and next to the toilet.

Finally, Juan and Jaime argue that Delfa has an interest adverse to Josefina. In support of 

this, they point to the application, which included a request for the authority to place Josefina in 

an assisted living center, and they contrast this with Delfa’s testimony that her intent was to keep 

Josefina in her home. This may be grounds for cross-examination, but it is insufficient to create 

an adverse interest. 

The trial court had sufficient evidence upon which to conclude that Delfa was an 

appropriate person to name as temporary guardian. Issue Three is overruled.

D. Due Process.

In their last issue, Juan and Jaime complain that their due process rights were violated

when the trial court imposed time limits on the hearing. The hearing began at 2:00 p.m. The 

trial court announced that it had several other matters scheduled for that day beginning at 
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2:30 p.m. and, therefore, that each side would be given fifteen minutes. Juan and Jaime 

complain that this time constraint prevented consideration of many issues.

Juan and Jaime recognize that trial courts have substantial discretion when managing 

their docket. Every trial court has the inherent power to control the disposition of the cases on its 

docket with economy of time and effort for itself, for counsel, and for litigants. Metzger v. 

Sebek, 892 S.W.2d 20, 38 (Tex. App.—Houston [1st Dist.] 1994, writ denied). The control 

given the trial judge must be exercised reasonably, and a party must be given a fair opportunity 

to present its case so that the factfinder may ascertain the truth. Sims v. Brackett, 885 S.W.2d 

450, 455 (Tex. App.—Corpus Christi 1994, writ denied).

Ordinarily, limiting a party to fifteen minutes to present its case in such an important 

situation would be disconcerting. But the trial court was, for all practical purposes, at the end of 

the statutory period available to hold a hearing. It had four other matters scheduled for that 

afternoon, including three juvenile procedings. Each side received fifteen minutes because that 

was all the time that the court could give them.

It is important to also appreciate that this was a temporary guardianship proceeding to 

consider if an interim arrangement was necessary until a regular guardianship proceeding could 

be held. Juan and Jaime suggest that the attorney ad litem wanted to continue the hearing. 

However, what he said was:

Your Honor, I’ve not had an opportunity to speak with my client, but what 

does concern me is that we do have the medical issues, the diagnoses. I believe 

the doctor would have enough to be able to recognize that there is cognitive 

impairment due to the Alzheimer’s and the dementia issues.

So I think that if it’s going to be continued that that is certainly fine, but I 

think that what needs to be done is the temporary guardianship needs to be put 

into place pending the next hearing.

The attorney ad litem did not attempt to continue the temporary guardianship hearing, and he has 

not joined Juan and Jaime’s mandamus proceeding. The trial court has set a hearing to consider 

the appointment of a permanent guardian on February 8. Juan and Jaime will have ample 

opportunity to secure an expert before then. Nothing the trial court did at the temporary 

guardianship hearing will prejudice their ability to present all of their evidence at that hearing.

The trial court was presented with evidence indicating that a temporary guardianship 

might be necessary and, for all practical purposes, could only consider that request on 
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November 23. The trial court, therefore, did not deny Juan and Jaime’s rights to due process. 

Issue Four is overruled.

V. Conclusion

The petition for writ of mandamus is denied.

RICK STRANGE

JUSTICE

December 10, 2010

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.