Supreme Court of Texas 

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No. 20-0328 

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In the Guardianship of James E. Fairley 

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On Petition for Review from the 

Court of Appeals for the Fourth District of Texas 

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Argued September 30, 2021

JUSTICE HUDDLE delivered the opinion of the Court, in which 

Chief Justice Hecht, Justice Lehrmann, Justice Boyd, Justice Busby, 

Justice Bland, and Justice Young joined. 

JUSTICE DEVINE filed a dissenting opinion, in which Justice 

Blacklock joined. 

After Mauricette Fairley acted as her husband’s guardian for the 

last three years of his life, their daughter Juliette Fairley—the 

petitioner here—asks us to void all orders entered in the guardianship 

proceeding because the proposed ward, her now-deceased father, was 

personally served by a private process server. Specifically, Juliette 

claims personal service on her father by a private process server was 

insufficient to vest jurisdiction in the probate court because, she asserts, 

Chapter 1051 of the Estates Code requires a proposed ward in Texas to 

be personally served by a sheriff, constable, or other elected officeholder. 
2 

We hold the probate court’s orders are not void. While the Estates 

Code directs that personal service on a ward be effected in a particular 

manner, it does not reflect an intent by the Legislature that the failure 

to satisfy each technical requirement—as opposed to the failure to 

personally serve the ward altogether—is jurisdictional. Thus, we hold 

that a technical defect in personal service on the ward does not deprive 

the probate court of subject-matter jurisdiction or personal jurisdiction 

over the ward where the ward is personally served and participates in 

the proceedings through counsel without objection. We affirm the court 

of appeals’ judgment. 

I. Background 

Juliette seeks a guardianship in Texas, and her application is 

dismissed. 

This dispute between James Fairley’s wife, Mauricette, and his 

daughter, Juliette, has a tortured procedural history and has spanned a 

decade. The parties first involved the courts in Bexar County in 2011, 

when James was 81 and Juliette alleged that he needed a guardian. The 

probate court appointed a guardian ad litem who determined a 

guardianship was not necessary, so that proceeding was closed.1 The 

following year, Juliette filed another application asking to be appointed 

James’s permanent guardian. But Juliette agreed to nonsuit her 

application in exchange for certain promises regarding both James’s 

care and Juliette’s access to James. The probate court thus entered an 

1 None of the pleadings or orders from this initial application are part 

of the record on appeal. Mauricette asserts the guardianship was deemed 

unnecessary because James was adequately protected through various powers 

of attorney James had given to Mauricette. 
3 

order dismissing Juliette’s second guardianship application in 

September 2014. 

Juliette moves James to New York, and dueling proceedings are 

filed in Texas and New York. 

One month after the Bexar County probate court dismissed her 

application to serve as James’s permanent guardian, Juliette took her 

father from his San Antonio assisted-living facility to New York, where 

she lived. Mauricette then requested that a Bexar County probate court 

appoint her as James’s temporary guardian under Estates Code Section 

1251.001.2 Mauricette alleged that Juliette had unlawfully removed 

James from his residence and defrauded him into signing powers of 

attorney, which Juliette used to take money from James’s bank account. 

Mauricette claimed that Juliette endangered James’s health and safety 

and that Mauricette’s appointment as James’s temporary guardian was 

necessary for his protection. 

James was personally served with this temporary-guardianship 

application in New York in November 2014. According to an Affidavit 

of Service signed by Sara M. Clark, she served James with the 

application and citation at a New York residence “by personally 

delivering and leaving the same with JAMES E. FAIRLEY.” The 

affidavit describes James’s physical appearance and location within the 

residence where he was served. In her affidavit, Clark states that she 

is over the age of 18 and is “not a party to this action.” 

2 Section 1251.001 of the Estates Code authorizes courts to appoint a 

temporary guardian based on substantial evidence that a person may be 

incapacitated and probable cause that the immediate appointment of a 

guardian is required. TEX. EST. CODE § 1251.001(a). 
4 

Three days after Mauricette filed her temporary-guardianship 

application in Texas, Juliette filed a petition in New York state court 

asking that she be appointed James’s guardian. Mauricette opposed, 

and the New York court held a hearing on December 1, 2014. After 

determining that James was “able and willing to attend,” the New York 

court recessed the hearing to allow James to be brought to the 

courthouse. The court received evidence from a court-appointed 

evaluator who personally observed the “warm and affectionate” reunion 

between James and Mauricette at the courthouse. The New York court 

appointed Mauricette and the court evaluator “special temporary coguardians” of James for the limited purpose of returning James to Texas 

so the Bexar County probate court could resolve any further dispute over 

the guardianship. The New York court also revoked the powers of 

attorney in favor of Juliette and reinstated those in favor of Mauricette. 

Mauricette files an application for permanent guardianship of 

James. 

Back in Texas, on December 8, 2014, Mauricette filed (in the same 

probate court and under the same cause number as her application for 

temporary guardianship) an application seeking appointment as 

James’s permanent guardian.3 Mauricette alleged that James was 

totally incapacitated and that Juliette was a threat to his welfare. 

3 Section 1101.151 of the Estates Code authorizes courts to appoint a 

guardian with full authority over a person who is found to be totally without 

capacity to care for himself, manage his property, operate a motor vehicle, 

make personal decisions regarding residence, and vote in a public election. 

TEX. EST. CODE § 1101.151(a). 
5 

Shortly after Mauricette filed her application for permanent 

guardianship, the probate court held a hearing on Mauricette’s 

application for temporary guardianship. James was represented by a 

court-appointed attorney ad litem, who had filed an answer on James’s 

behalf in this proceeding and had served as James’s attorney ad litem 

during the 2012 proceedings in which Juliette sought to be appointed as 

James’s guardian. Following an evidentiary hearing, the probate court 

appointed Mauricette as James’s temporary guardian pending the 

resolution of Juliette’s contest to the application for a permanent 

guardianship. See TEX. EST. CODE § 1251.052(b)(1) (authorizing a 

temporary guardian to serve until the conclusion of the hearing 

contesting an application for guardianship). The probate court also 

ordered that James’s attorney ad litem “continue[] . . . to represent the 

interests of the Proposed Ward during the pendency of this contest.” 

One month later, James was personally served with the 

application for permanent guardianship at the San Antonio assistedliving facility to which he had returned. The return of citation shows 

that James was personally served with the application and citation by a 

Texas licensed private process server. 

The probate court appoints Mauricette as James’s permanent 

guardian. 

Mauricette served as James’s temporary guardian under the 

probate court’s order for most of 2015. Then, following a November 2015 

hearing, the probate court appointed Mauricette as James’s permanent 

guardian. The probate court found James was “totally incapacitated” 

and that it was in his best interest that Mauricette be appointed 
6 

guardian of his person. The probate court’s order notes that James 

“appeared by and through his court appointed attorney ad litem.” 

Juliette challenges the appointment order through appeal and 

mandamus. 

Juliette appealed the probate court’s order appointing Mauricette 

as James’s permanent guardian. She argued the probate court abused 

its discretion by requiring her to deposit $20,000 as security for the 

probable costs of the guardianship proceeding and then dismissing her 

cross-application when she failed to do so. The court of appeals affirmed, 

and we denied Juliette’s petition for review. In re Guardianship of 

Fairley, No. 04-16-00096-CV, 2017 WL 188103 (Tex. App.—San Antonio 

Jan. 18, 2017, pet. denied). 

Juliette then filed a pro se petition for writ of mandamus in March 

2018. She argued that the order requiring her to pay $20,000 as security 

and later orders based on her failure to comply were void because they 

violated “the Texas Rules of Civil Procedure, the 8th Amendment, the 

Due Process and Equal Protection Clause [and] the Texas Estates Code.” 

The court of appeals denied Juliette’s mandamus petition. In re 

Guardianship of Fairley, No. 04-18-00190-CV, 2018 WL 1610924 (Tex. 

App.—San Antonio Apr. 4, 2018, orig. proceeding). 

Juliette files a mandamus petition in this Court, asserting the 

probate court never acquired jurisdiction over James. 

Juliette filed a pro se petition for writ of mandamus in this Court 

in June 2018, then retained new counsel. Because some of the 

challenged orders were issued by probate court judges who no longer 

presided over the case, the Court abated the mandamus proceeding 

under Rule of Appellate Procedure 7.2(b) to allow the current judge to 
7 

reconsider those orders. Juliette then filed in the probate court a motion 

to reconsider in which she argued, for the first time, that all the probate 

court’s orders after September 2014 were void because the court never 

obtained jurisdiction over James. Specifically, Juliette argued that 

Mauricette’s applications for guardianship were served on James by 

private process servers in violation of Section 1051.103 of the Estates 

Code, which Juliette contended required James to be served by “[t]he 

sheriff or other officer.” TEX. EST. CODE § 1051.103(a)(1). The probate 

court denied Juliette’s motion, finding that “citation was properly served 

upon [James] in this cause as required by the TEXAS ESTATES CODE and 

the Texas Rules of Civil Procedure [and] that this Court has jurisdiction 

over the pending guardianship proceeding in this Cause.” 

James dies, and Juliette’s mandamus petition is denied. 

After the probate court denied reconsideration, we reinstated the 

mandamus proceeding, and Juliette filed a redrawn petition asserting 

that every order issued after September 2014—the date her 2012 

application was dismissed—was void due to what she contends was 

improper service of Mauricette’s guardianship applications. James died 

soon thereafter, and Mauricette then argued that his death rendered 

moot any dispute over the guardianship orders. We denied the 

mandamus petition in January 2019. 

Juliette files a wrongful-death suit, which is transferred to the 

probate court. 

Juliette sued Mauricette and Mauricette’s other daughter (and 

James’s step-daughter), Dorothy, in Bexar County district court for 

wrongful death and to enjoin embalming or cremation of James’s body. 
8 

On Mauricette and Dorothy’s motion, the probate court transferred the 

wrongful-death suit to itself under Estates Code Section 1022.007(a).4

Mauricette requests dismissal of the wrongful-death suit, and 

Juliette files a TCPA motion. 

Following the transfer and consolidation of the wrongful-death 

suit into the guardianship proceeding, Mauricette and Dorothy sought 

dismissal of Juliette’s claims under Rule of Civil Procedure 91a. Juliette 

responded with a motion to dismiss under the Texas Citizens 

Participation Act (TCPA), TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011, 

in which she asked the probate court to vacate the transfer order and 

dismiss Mauricette’s Rule 91a motion. Juliette argued that the probate 

court never acquired jurisdiction over the guardianship proceeding. She 

also argued that the TCPA applied both to Mauricette’s motion to 

transfer and the Rule 91a motion to dismiss and that Mauricette failed 

4 Section 1022.007(a) of the Estates Code provides: 

A judge of a statutory probate court, on the motion of a party to 

the action or of a person interested in the guardianship, may: 

(1) transfer to the judge’s court from a district, county, or 

statutory court a cause of action that is a matter related to a 

guardianship proceeding pending in the statutory probate 

court, including a cause of action that is a matter related to 

a guardianship proceeding pending in the statutory probate 

court and in which the guardian, ward, or proposed ward in 

the pending guardianship proceeding is a party; and 

(2) consolidate the transferred cause of action with the 

guardianship proceeding to which it relates and any other 

proceedings in the statutory probate court that are related to 

the guardianship proceeding. 

TEX. EST. CODE § 1022.007(a). 
9 

to establish by clear and specific evidence a prima facie case for each 

essential element of the claims in those motions. 

The probate court denies Juliette’s TCPA motion, and the court 

of appeals affirms. 

The probate court denied Juliette’s motion to dismiss under the 

TCPA, and Juliette appealed. See TEX. CIV. PRAC. & REM. CODE

§ 51.014(a)(12) (allowing an interlocutory appeal from an order denying 

a motion to dismiss under the TCPA). The court of appeals affirmed. 

604 S.W.3d 450 (Tex. App.—San Antonio 2020). The court first 

concluded that service of Mauricette’s application for permanent 

guardianship by a private process server complied with Estates Code 

Section 1051.103. Id. at 457. The court also concluded that neither 

Mauricette’s motion to transfer the wrongful-death suit nor her Rule 91a 

motion to dismiss was a “legal action” under the TCPA and, therefore, 

the probate court did not err in denying Juliette’s motion to dismiss. Id.

at 457–60. 

Juliette petitioned for review in this Court. Here, she does not 

challenge the court of appeals’ ruling on her TCPA motion. Rather, she 

advances two jurisdictional arguments: either (1) James’s death caused 

the probate court to lose jurisdiction and prevented it from transferring 

Juliette’s wrongful-death case to itself or (2) the probate court lacked 

jurisdiction and all orders in the guardianship proceeding are void 

because James was not served by a sheriff, constable, or “other officer,” 

which Juliette interprets to exclude private process servers. 

II. Jurisdictional Principles 

Juliette urges us to hold that all the probate court’s orders issued 

after September 2014 are “void for lack of jurisdiction over James 
10 

Fairley.” Because the parties’ briefing does not consistently distinguish 

between them, we begin by setting forth some principles of the different 

types of jurisdiction at issue here. 

A. Subject-matter jurisdiction 

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. Luciano v. SprayFoamPolymers.com, 

LLC, 625 S.W.3d 1, 7–8 (Tex. 2021). Subject-matter jurisdiction refers 

to a court’s statutory or constitutional power to adjudicate a case. Steel 

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998). The subjectmatter jurisdiction of Texas courts derives solely from the Texas 

Constitution and state statutes. In re Allcat Claims Serv., L.P., 356 

S.W.3d 455, 459–60 (Tex. 2011). Because subject-matter jurisdiction 

cannot be conferred on a court by consent or waiver, a judgment is never 

considered final if the court that issued it lacked subject-matter 

jurisdiction. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000). 

Partly out of a desire to “reduce the vulnerability of final judgments to 

attack,” id. (quoting RESTATEMENT (SECOND) OF JUDGMENTS § 11 cmt. e 

(AM. L. INST. 1982)), we are reluctant to conclude that a statutory 

requirement affects a court’s subject-matter jurisdiction absent clear 

legislative intent to that effect. City of DeSoto v. White, 288 S.W.3d 389, 

393 (Tex. 2009). 

But courts do lack subject-matter jurisdiction to decide a moot 

controversy. State ex rel. Best v. Harper, 562 S.W.3d 1, 6 (Tex. 2018). 

The prohibition against deciding moot controversies is rooted in the 

separation-of-powers doctrine that prohibits courts from rendering 
11 

advisory opinions. Nat’l Collegiate Athletic Ass’n v. Jones, 1 S.W.3d 83, 

86 (Tex. 1999) (citing TEX. CONST. art. II, § 1). A suit may become moot 

at any time, including on appeal. Heckman v. Williamson County, 369 

S.W.3d 137, 166 (Tex. 2012). A case is moot when a live controversy no 

longer exists or the parties have no legally cognizable interest in the 

outcome. City of Krum v. Rice, 543 S.W.3d 747, 749 (Tex. 2017). 

B. Personal jurisdiction 

In contrast to subject-matter jurisdiction, personal 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). 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)). However, 

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. In re Fisher, 433 S.W.3d 523, 532 (Tex. 

2014). 

III. Analysis 

Juliette brought an interlocutory appeal from the probate court’s 

order denying her TCPA motion, which sought dismissal of Mauricette 

and Dorothy’s Rule 91a motion against her wrongful-death suit. She 

asserts this order and the court’s previous order transferring that suit 
12 

to the probate court—as well as all orders issued after September 

2014—are void because James was never properly served with a 

guardianship application. 

The parties’ briefs principally address the questions of whether 

service on James complied with Estates Code Chapter 1051 and whether 

defective service deprived the probate court of personal jurisdiction over 

James. Before considering those questions, however, we first address 

two threshold issues relating to subject-matter jurisdiction: Mauricette’s 

claim that James’s death rendered this appeal moot; and Juliette’s 

related claim that James’s death terminated the guardianship and the 

probate court’s subject-matter jurisdiction, such that any orders entered 

after his death are void. 

A. Did James’s death moot the appeal? 

Mauricette argues James’s death in December 2018 mooted 

Juliette’s appeal. We disagree. As noted, a case is moot when a live 

controversy no longer exists. City of Krum, 543 S.W.3d at 749. Juliette 

contends that the probate court lacked jurisdiction to transfer to itself 

her wrongful-death suit. If Juliette is correct, the result would be a 

reinstatement of Juliette’s wrongful-death suit in the district court. 

Juliette’s appeal thus presents a live controversy notwithstanding 

James’s death: whether the district court is the proper court to 

adjudicate her wrongful-death suit. Because this live controversy 

remains, we reject Mauricette’s argument that James’s death rendered 

this appeal moot. See id. 
13 

B. Did James’s death end the guardianship proceeding and 

thereby deprive the probate court of subject-matter 

jurisdiction? 

Juliette advances a different theory of how James’s death 

deprived the probate court of subject-matter jurisdiction to transfer the 

wrongful-death suit to itself. She argues that James’s death terminated 

the guardianship over him and, therefore, there was no longer a 

“guardianship proceeding pending” into which the probate court could 

transfer her wrongful-death suit. See TEX. EST. CODE § 1022.007(a) 

(authorizing statutory probate court to transfer to itself claims related 

to “a guardianship proceeding pending in” that court). We disagree. 

To initiate a proceeding to appoint a guardian, a person must file 

a written application in the proper court. TEX. EST. CODE § 1101.001(a). 

Texas law permits the creation of a guardianship of a person or an 

estate, or both. See id. §§ 1002.012(b) (defining “guardian” to include 

both the guardian of an incapacitated person and the guardian of an 

incapacitated person’s estate), 1101.001(b)(3) (requiring the application 

to state whether it is for guardianship of the person or estate, or both). 

It is undisputed that the applications in this case sought only 

guardianship of a person—James—and not guardianship of James’s 

estate. 

The Legislature created the statutory probate court in Bexar 

County from which this appeal arises. See TEX. GOV’T CODE

§ 25.0171(c). The Legislature gives statutory probate courts original 

jurisdiction over guardianship proceedings. TEX. EST. CODE

§ 1022.002(c); see also TEX. CONST. art. V, § 8 (“District Court 

jurisdiction consists of exclusive, appellate, and original jurisdiction of 
14 

all actions, proceedings, and remedies, except in cases where exclusive, 

appellate, or original jurisdiction may be conferred by this Constitution 

or other law on some other court, tribunal, or administrative body.”). 

The Estates Code defines a “guardianship proceeding” as “a matter or 

proceeding related to a guardianship or any other matter covered by this 

title,” including “the appointment of a guardian of a minor or other 

incapacitated person” and “an application, petition, or motion regarding 

guardianship or a substitute for guardianship under this title.” TEX.

EST. CODE § 1002.015. 

Section 1022.002 of the Estates Code expressly states when a 

guardianship proceeding begins and ends. A guardianship proceeding 

begins with “the filing of the application for the appointment of a 

guardian of the estate or person, or both.” Id. § 1022.002(d). It ends 

when “the guardianship is settled and closed under this chapter.” Id. 

Accordingly, the probate court acquired subject-matter jurisdiction over 

this guardianship proceeding when Mauricette filed her first application 

for guardianship, seeking a temporary guardianship. See id.

§ 1002.012(a) (defining “guardian” to include a person appointed as a 

temporary guardian). 

A ward’s death will necessarily bring the guardianship of the 

person to an end. See Zipp v. Wuemling, 218 S.W.3d 71, 74 (Tex. 2007) 

(“It is axiomatic that, with the death of the ward, the guardianship of 

the person must end.”). But the guardianship proceeding does not 

automatically terminate on the ward’s death. Instead, the probate 

court’s jurisdiction continues until the court settles and closes the 

guardianship and discharges the guardian. See Easterline v. Bean, 49 
15 

S.W.2d 427, 428 (Tex. 1932) (stating that a ward’s death causes the 

probate court to lose jurisdiction over the guardianship matter “save and 

except that the guardianship shall be immediately settled and closed, 

and the guardian discharged”). Consistent with this, the Estates Code 

expressly authorizes a guardian to take certain actions on behalf of a 

deceased ward before the closing of the guardianship. See TEX. EST.

CODE §§ 1204.051 (authorizing a guardian to make funeral 

arrangements “[b]efore a guardianship of the person . . . is closed on the 

ward’s death”), 1204.108(a) (requiring a guardian of the person to 

deliver a deceased ward’s property to the personal representative of the 

ward’s estate or other person entitled to the property). 

Here, it is undisputed that the probate court had not yet settled 

and closed the guardianship proceeding at the time it transferred 

Juliette’s wrongful-death suit to itself. See TEX. EST. CODE § 1204.001 

(establishing the procedures for settling and closing a guardianship). 

Thus, contrary to Juliette’s argument, there remained a “guardianship 

proceeding pending” into which the probate court could have transferred 

the wrongful-death suit. Aside from claiming the guardianship 

proceeding automatically terminated on James’s death, Juliette does not 

challenge the probate court’s authority under the Estates Code to 

transfer the wrongful-death suit to itself.5 We accordingly conclude that 

5 Of course, a probate court deciding whether to transfer a related cause 

of action under Section 1022.007 should take into account the death of the ward 

and the forthcoming closure of the guardianship proceeding, as well as whether 

there is a pending or imminent probate proceeding into which the cause of 

action should be transferred instead. 
16 

James’s death did not deprive the probate court of subject-matter 

jurisdiction to enter the transfer order. 

C. Service of citation 

Juliette contends the probate court never acquired personal 

jurisdiction over James because service on James did not comply with 

Chapter 1051 of the Estates Code. Therefore, according to Juliette, 

every order issued by the probate court after September 2014 is void. 

We address whether service of the applications for guardianship 

complied with the requirements in the Estates Code, then turn to 

Juliette’s contention that any defect in service would deprive the probate 

court of personal jurisdiction and render its orders void. 

1. Was James served in accordance with the Estates 

Code? 

Chapter 1051 of the Estates Code governs the issuance of notice 

and service of citation in guardianship proceedings. Two sections within 

Chapter 1051 are particularly important here. Section 1051.103, titled 

“Service of Citation for Application for Guardianship,” identifies five 

categories of persons who must be personally served with the application 

and citation. TEX. EST. CODE § 1051.103(a)(1)–(5). As relevant here, 

that section provides: 

(a) The sheriff or other officer shall personally serve 

citation to appear and answer an application for 

guardianship on: 

(1) a proposed ward who is 12 years of age or 

older . . . . 

Id. § 1051.103(a)(1). 
17 

Section 1051.051, titled “Personal Service,” addresses the manner 

in which personal service of citation or notice is effected in a variety of 

different circumstances: 

(a) Except as otherwise provided by Subsection (b), if 

personal service of citation or notice is required, the 

citation or notice must be served on the attorney of 

record for the person to be cited or notified. 

Notwithstanding the requirement of personal 

service, service may be made on that attorney by any 

method specified by Section 1051.055 for service on 

an attorney of record. 

(b) If the person to be cited or notified does not have an 

attorney of record in the proceeding, or if an attempt 

to serve the person’s attorney is unsuccessful: 

(1) the sheriff or constable shall serve the citation 

or notice by delivering a copy of the citation or 

notice to the person to be cited or notified, in 

person, if the person to whom the citation or 

notice is directed is in this state; or 

(2) a disinterested person competent to make an 

oath that the citation or notice was served 

may serve the citation or notice, if the person 

to be cited or notified is absent from or is not 

a resident of this state. 

Id. § 1051.051(a), (b). 

It is undisputed that Section 1051.103(a)(1) required personal 

service of citation for an application for guardianship on James because 

he was a proposed ward older than twelve. It is also undisputed that 

James was personally served with both the application for temporary 

guardianship and the application for permanent guardianship. 

However, the parties part ways on the question of who was required to 

serve the citation and application. To answer that question, we must 
18 

first determine whether Section 1051.103 or Section 1051.051 controls 

this question. 

a. Which statute dictates who must serve the 

citation? 

Section 1051.103(a) states that “[t]he sheriff or other officer” shall 

personally serve citation of an application for guardianship on those for 

whom personal service is required, including a proposed ward who is 

twelve or older. Throughout the proceedings below, and in their briefing 

to this Court, both parties appear to assume this section governs the 

question of who should serve the application and citation. The parties’ 

briefing thus focuses on whether “other officer” as used in Section 

1051.103(a) includes a private process server. The court of appeals 

rejected Juliette’s contention that “officer” as used in Section 

1051.103(a) is limited to a sheriff, constable, or other elected official and 

concluded that “James was served in conformity with section 

1051.103(a).” 604 S.W.3d at 457. 

Amicus Texas College of Probate Judges (TCPJ) contends that the 

court of appeals should have looked instead to Section 1051.051. 

According to TCPJ, Section 1051.051 is the more specific statute with 

respect to who is authorized to serve citation in a guardianship 

proceeding. Juliette appeared to adopt this position at oral argument. 

We agree that Section 1051.051 is the controlling statute here. 

Section 1051.103(a) identifies those individuals who must receive

personal service of an application for guardianship. Section 1051.051 

specifies who may serve when personal service is required and how

service must be effected. 
19 

Section 1051.051 sets forth three different groups of persons who 

may serve, depending on whether the person to be served is represented 

by counsel and where the person is located. Under subsection (a), if the 

person to be served has an attorney of record in the proceeding, the 

citation must be served on that attorney. TEX. EST. CODE § 1051.051(a). 

Section 1051.051(a) then refers to Section 1051.055 for the method of 

service on an attorney. Id. (“Notwithstanding the requirement of 

personal service, service may be made on that attorney by any method 

specified by Section 1051.055 for service on an attorney of record.”). 

Section 1051.055(c) provides that a citation may be served on an 

attorney by (1) another party, (2) another party’s attorney, (3) a sheriff 

or constable, or (4) any person competent to testify. Id. § 1051.055(c). 

Subsection (b) applies if the person to be served does not have an 

attorney of record or if service on the attorney is unsuccessful. Id.

§ 1051.051(b). In that case, the method of service is determined by the 

location of the person who must be served. If that person is in Texas, 

subsection (b)(1) provides that “the sheriff or constable shall serve the 

citation” by delivering a copy in person. Id. § 1051.051(b)(1). If the 

person to be served is either absent from or not a resident of Texas, 

however, subsection (b)(2) provides that citation may be served by “a 

disinterested person competent to make an oath that the citation . . . 

was served.” Id. § 1051.051(b)(2). 

Nothing in the text of Section 1051.103(a) suggests that the 

reference to service by a sheriff or “other officer” (an otherwise undefined 

term) was itself intended to limit those who could serve citation for 

guardianship applications. We instead read “other officer” as a 
20 

reference to those persons who are authorized to serve citation 

elsewhere in the Estates Code. As noted above, depending on the 

circumstances, Section 1051.051 expressly allows for service of citation 

to be performed by a sheriff or constable, a disinterested person 

competent to make an oath, another party, another party’s attorney, or 

any person competent to testify. Accordingly, we conclude that, for those 

persons entitled to personal service of an application for guardianship 

under Section 1051.103(a), the method of service (including who must 

serve the application and citation) must comply with Section 1051.051. 

b. Did service of the guardianship applications 

on James comply with Estates Code Section 

1051.051? 

Having concluded that Section 1051.051 governs who must serve 

a citation and application for guardianship, we turn to whether service 

of each of the two applications for guardianship in this case—one served 

in New York, one in Texas—satisfied its requirements. 

Focusing on Section 1051.103(a), the court of appeals concluded 

that a private process server was an “other officer” authorized to serve 

an application for guardianship because a 1994 Bexar County probate 

court administrative order permitted licensed private process servers to 

serve process in the probate courts. 604 S.W.3d at 457. The court also 

relied on Rule of Civil Procedure 103, the general rule governing service 

of process, which authorizes service by “any person authorized by law or 

by written order of the court.” TEX. R. CIV. P. 103. But neither an order 

from the Bexar County probate courts nor a rule of procedure can trump 

a statute governing service of process in guardianship proceedings. See

Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000) (absent certain 
21 

circumstances not present here, “when a rule of procedure conflicts with 

a statute, the statute prevails”). The Estates Code establishes a detailed 

framework controlling service in these proceedings, and Section 

1051.051 specifies who is authorized to serve when personal service is 

required. These statutory requirements cannot be overridden by a 

conflicting court order or by a rule of procedure of general application. 

i. Service of application for temporary 

guardianship 

Mauricette filed her application for appointment as James’s 

temporary guardian in Bexar County in October 2014, shortly after 

Juliette took James to New York. James was personally served with 

this application and citation in New York by Sara Clark, a private 

process server. Juliette contends that Estates Code Section 1051.103(a) 

required service by a “sheriff or other officer” and contends that Clark 

was neither. But, as discussed above, Section 1051.103(a) does not 

prescribe who may effect service. Section 1051.051 does. Because 

James was absent from Texas, Section 1051.051(b)(2) authorizes 

personal service by “a disinterested person competent to make an oath 

that the citation . . . was served.” TEX. EST. CODE § 1051.051(b)(2). We 

thus reject Juliette’s argument that service of the temporaryguardianship application on James was defective because he was not 

served by a sheriff, constable, or other elected official. 

Juliette also argues that service of the application for temporary 

guardianship did not comply with Section 1051.051(b)(2) because the 

Affidavit of Service failed to establish that Clark was “disinterested.” A 

“disinterested” person is one who is “[f]ree from bias, prejudice, or 

partiality” and lacks “a pecuniary interest in the matter at hand.” 
22 

Disinterested, BLACK’S LAW DICTIONARY (11th ed. 2019). In her Affidavit 

of Service, Clark states only that she is “not a party to this action.” This 

statement alone does not establish that Clark was “disinterested.” See

Indus. Models, Inc. v. SNF, Inc., No. 02-13-00281-CV, 2014 WL 3696104, 

at *5 (Tex. App.—Fort Worth July 24, 2014, no pet.) (concluding that an 

affidavit stating that the person serving citation was “not a party” is 

insufficient to establish that person was “disinterested”); see also TEX.

R. CIV. P. 103 (prohibiting service by someone who is either “a party to” 

a suit or “interested in the outcome” of a suit). Accordingly, we conclude 

the record does not establish that James was served by a disinterested 

person, as required by Section 1051.051(b)(2).6

ii. Service of application for permanent 

guardianship 

Mauricette filed her application for appointment as James’s 

permanent guardian in December 2014, by which time James had 

returned to Texas. James was personally served by a private process 

server at the assisted-living facility in San Antonio, and, because he was 

served in Texas, Section 1051.051(b)(1) applies. Under that provision, 

personal service must be by “sheriff or constable”—a private process 

6 Juliette also asserts that the Affidavit of Service failed to comply with 

Section 1051.151, which requires the return of a person serving citation to be 

“endorsed on or attached to the citation.” TEX. EST. CODE § 1051.151(1). For 

the reasons we discuss below, this additional alleged technical defect in the 

method of service does not affect our ultimate disposition. Therefore, we 

assume without deciding that the Affidavit of Service was not endorsed on or 

attached to the citation, as required by Section 1051.151(1). 
23 

server is insufficient.7 Service of this application thus failed to satisfy 

Section 1051.051(b)(1)’s technical requirements. 

2. Did the technical defects in service deprive the 

probate court of personal jurisdiction over James or 

void its orders? 

Juliette conceded during oral argument that her complaints 

about service concern personal jurisdiction, not subject-matter 

jurisdiction. As we explain above, the probate court acquired subjectmatter jurisdiction over this guardianship proceeding when Mauricette 

filed her initial application. See TEX. EST. CODE § 1022.002(d). And 

Juliette does not contend the probate court lacked personal jurisdiction 

over her—her complaint is that the court lacked personal jurisdiction 

over James. Nevertheless, Juliette asks us to hold that technical defects 

in personal service on the now-deceased James voided all orders in the 

guardianship proceeding and deprived the probate court of jurisdiction 

to enter any orders, including the order transferring her wrongful-death 

suit to the probate court. We disagree because James never complained 

about these defects at a time at which they could have been corrected. 

7 By the time James was served with the permanent-guardianship 

application, his court-appointed attorney ad litem had entered an appearance 

and filed an answer on James’s behalf. Because James had an attorney of 

record, Section 1051.051(a) authorized service on James through that attorney 

by any method specified by Section 1051.055. TEX. EST. CODE § 1051.051(a). 

Although the record shows that a copy of the application for permanent 

guardianship was served on James’s attorney ad litem, the record does not 

reflect whether this attorney was also served with citation, as the statute 

requires. See id. § 1051.103(a) (requiring James to be personally served with 

“citation to appear and answer an application for guardianship”). And 

Mauricette does not argue that service was proper through James’s attorney 

ad litem. Therefore, we assume that James was never properly served through 

his attorney under Section 1051.051(a). 
24 

He instead entered a general appearance in the guardianship 

proceeding through his attorney ad litem and thereby consented to the 

personal jurisdiction of the probate court. 

Unlike with subject-matter jurisdiction, parties can consent to the 

court’s personal jurisdiction over them. In re Fisher, 433 S.W.3d at 532. 

One common way to consent to a court’s jurisdiction is by entering a 

general appearance in the proceeding. A party may enter an appearance 

in person or by attorney. TEX. R. CIV. P. 120. Such an appearance “shall 

have the same force and effect as if the citation had been duly issued 

and served as provided by law.” Id. Thus, a party’s appearance in a 

lawsuit cures any defect in the method of serving that party. Baker v. 

Monsanto Co., 111 S.W.3d 158, 161 (Tex. 2003). 

The mere presence of a party or that party’s attorney in court does 

not constitute an appearance. See Seals v. Upper Trinity Reg’l Water 

Dist., 145 S.W.3d 291, 297 (Tex. App.—Fort Worth 2004, pet. dism’d by 

agr.) (“[A] party who is a silent figurehead in the courtroom, observing 

the proceedings without participating, has not [made a general 

appearance].”). Instead, a party enters a general appearance when it 

(1) invokes the judgment of the court on any question other than the 

court’s jurisdiction, (2) recognizes by its acts that an action is properly 

pending, or (3) seeks affirmative action from the court. Exito Elecs. Co. 

v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004). Our courts routinely hold that 

a court-appointed attorney who files an answer or seeks affirmative 
25 

action from the court invokes the court’s jurisdiction and thus enters a 

general appearance on behalf of the client.8

Here, the probate court appointed an attorney ad litem to 

represent James’s interests in the guardianship proceeding. See TEX.

EST. CODE § 1054.001 (requiring court to appoint an attorney ad litem 

for the proposed ward in a proceeding for the appointment of a 

8 See In re M.D.M., 579 S.W.3d 744, 760–61 (Tex. App.—Houston [1st 

Dist.] 2019, no pet.) (attorney ad litem’s participation in final parentaltermination hearing on behalf of the father through questioning of witnesses 

and argument constituted a general appearance by the father that waived 

complaints regarding service); Roberts v. Fargason, No. 13-17-00395-CV, 2019 

WL 1716803, at *2 (Tex. App.—Corpus Christi–Edinburg Apr. 18, 2019, no 

pet.) (defendant made a general appearance and waived alleged defects in 

service when attorney ad litem appointed to represent him while in military 

service filed an answer on his behalf); In re A.L.H., 515 S.W.3d 60, 87 (Tex. 

App.—Houston [14th Dist.] 2017, pet. denied) (father in parental-termination 

case made a general appearance and waived any complaints about service 

because appointed attorney ad litem filed an answer on father’s behalf); In re 

D.M.B., 467 S.W.3d 100, 103–04 (Tex. App.—San Antonio 2015, pet. denied) 

(attorney ad litem’s objections to evidence and objection to entry of a temporary 

restraining order on behalf of the father in a parental-termination hearing 

constituted a general appearance by the father that waived his service 

complaints); In re P.Y.M., No. 04-13-00024-CV, 2013 WL 4009748, at *2 (Tex. 

App.—San Antonio Aug. 7, 2013, pet. denied) (father in parental-termination 

case made a general appearance and waived any complaints about service 

when attorney ad litem questioned a witness and presented argument on 

behalf of the father at the termination hearing); Gamez v. Tex. Dep’t of Fam. & 

Protective Servs., No. 03-09-00190-CV, 2009 WL 4456150, at *5 (Tex. App.—

Austin Dec. 1, 2009, no pet.) (attorney ad litem’s answer and attendance at 

hearings and trial on behalf of mother in parental-termination case was a 

general appearance that waived complaints about service); Phillips v. Dall. 

Cnty. Child Protective Servs. Unit, 197 S.W.3d 862, 865 (Tex. App.—Dallas 

2006, pet. denied) (filing of an answer on mother’s behalf by attorney ad litem 

in parental-termination case was a general appearance that waived any 

complaints about defects in service); In re $475,001.16, 96 S.W.3d 625, 628–29 

(Tex. App.—Houston [1st Dist.] 2002, no pet.) (party entered a general 

appearance in forfeiture proceeding and waived challenges to defects in service 

because court-appointed attorney ad litem filed an answer on his behalf). 
26 

guardian); see also id. § 1002.002 (defining “attorney ad litem” as an 

attorney appointed by the court “to represent and advocate on behalf of 

a proposed ward . . . in a guardianship proceeding”). James’s appointed 

attorney filed an answer on James’s behalf. In advance of the hearing 

on Mauricette’s application for a temporary guardianship, he filed a 

request that James not be required to appear at the hearing. At the 

hearing on the temporary guardianship, the attorney ad litem 

represented to the court that he had spoken with James, and he 

conveyed James’s views regarding the guardianship to the court. He 

also appeared at the permanent-guardianship hearing and approved 

with his signature the 2015 order appointing Mauricette as James’s 

permanent guardian. 

An attorney ad litem is required by statute to review the 

application and relevant supporting materials; to interview the 

proposed ward before the appointment hearing; and to discuss with the 

ward, to the extent possible, the details of the case, the ward’s legal 

options, and the ward’s opinions regarding the necessity and scope of a 

guardianship. Id. § 1054.004. There is nothing in the record to suggest 

that this attorney’s representation of James was deficient in any way. 

And at no time during the guardianship proceeding did James’s attorney 

ad litem (or anyone else) assert any complaints about the manner in 

which James was served. 

We conclude that James made a general appearance in the 

guardianship proceeding through the affirmative actions of his attorney 

ad litem. Accordingly, he consented to the probate court’s personal 
27 

jurisdiction over him, waiving any technical defects regarding service. 

See Baker, 111 S.W.3d at 161.9

Amicus TCPJ correctly notes that the Estates Code provides that 

an attorney ad litem “may not waive personal service of citation.” TEX.

EST. CODE § 1051.055(e). But no one claims that occurred here—indeed, 

it is undisputed that James was personally served with both 

applications for guardianship. While Section 1051.055(e) prohibits 

waiving service altogether, we do not read it to prohibit a general 

appearance and waiver of technical service defects when the proposed 

9 Contrary to our dissenting colleagues’ characterization, we do not 

suggest that technical defects in service “don’t matter” and are “perfectly fine.” 

Post at ___ (Devine, J., dissenting). And we emphatically do not suggest that 

courts are “free to ignore statutory requirements.” Id. at __. Indeed, if anyone 

had alerted the probate court to a defect in service in a timely manner, the 

probate court could have and no doubt would have remedied the defect so as to 

satisfy the statute’s requirements in every detail. But, alas, ours is an 

imperfect world—one in which no one brought the defect to the probate court’s 

attention in time for it to be cured. The real question is thus not whether courts 

should ignore statutory requirements—obviously they should not and do not—

but, rather, whether the statutory text expresses the Legislature’s intent that 

anything short of strict compliance requires that the entire guardianship be 

voided when the attorney ad litem entered a general appearance for the ward, 

affirmatively invoked the probate court’s jurisdiction, and ably represented the 

ward. The text of the Estates Code reveals no such intent, and the dissent’s 

professed desire to read such a requirement into the statute is undermined by 

the Legislature’s decision to allow service on a ward to be accomplished by 

serving his attorney of record. See TEX. EST. CODE §§ 1051.051(a), 1051.055(c) 

(providing that service on a ward’s attorney may be delivered by a variety of 

persons, including another party, the attorney of record for another party, a 

sheriff or constable, or another person competent to testify). Because the 

Estates Code contemplates that personal jurisdiction attaches in a variety of 

ways that do not involve physical service on the ward by anyone, we cannot, in 

the absence of text signaling such an intent, conclude that the Legislature 

intended to attach jurisdictional significance to whether “the right person” 

serves a ward. 
28 

ward has been served and has opted through his attorney to submit to 

the court’s jurisdiction. See Ex parte Rodriguez, 466 S.W.3d 846, 851 

(Tex. Crim. App. 2015) (concluding that Family Code statute prohibiting 

juvenile from waiving “service of [the] summons” does not prohibit the 

waiver of defects in the manner of service). 

This reading coheres with our rules, which distinguish between a 

defendant’s appearance (which has “the same force and effect as if the 

citation had been duly issued and served as provided by law,” TEX. R.

CIV. P. 120) and a waiver of service. Rule 124 provides that a judgment 

cannot be rendered unless a defendant is served, or upon “acceptance or 

waiver of process, or upon an appearance by the defendant.” TEX. R. CIV.

P. 124. In short, although James’s appearance in the proceeding 

through his attorney ad litem waived any complaints about the method 

of personal service, it was not a waiver of personal service of citation on 

James. 

Juliette urges us to adopt a rule requiring strict compliance with 

the statutory requirements for service of a guardianship application, 

similar to the rule we apply when reviewing a default judgment. See

WWLC Inv., L.P. v. Miraki, 624 S.W.3d 796, 799 (Tex. 2021) (“For well 

over a century, this court has required that strict compliance with the 

rules for service of citation affirmatively appear on the record in order 

for a default judgment to withstand direct attack.” (quoting Primate 

Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994))). But even in 

the context of default judgments (which this case is not), that rule does 

not apply in every case. In PNS Stores, Inc. v. Rivera, 379 S.W.3d 267 

(Tex. 2012), we held that strict compliance with service requirements is 
29 

not required when a defendant seeks to void a default judgment through 

a collateral attack. In that case, the defendant argued that the 

plaintiff’s failure to comply with all the requirements for service 

rendered the judgment void and, therefore, the default judgment could 

be set aside by a collateral attack. We disagreed, and we held that, 

because the defendant failed to establish either an absence of service or 

defects in service that deprived the defendant of a meaningful 

opportunity to appear and answer the lawsuit, the judgment was not 

void. Id. at 275. 

Our holding in PNS Stores was designed to strike “a reasonable 

balance between the need for finality of judgments and the requirement 

that the power underlying judicial authority must be based on a 

litigant’s fair opportunity to be heard.” Id. at 274 (footnote omitted). 

Our decision here strikes the same balance. Even though the 

guardianship proceeding remained pending, the probate court’s order 

appointing Mauricette as James’s permanent guardian is “final” and is 

treated as such for purposes of appeal. See In re Guardianship of Jones, 

629 S.W.3d 921, 925 (Tex. 2021) (“[A]n order [in a guardianship 

proceeding] disposing of all issues and all parties ‘in the phase of the 

proceeding for which it was brought’ is final and appealable even when 

the proceeding remains pending as to other issues.” (quoting Crowson v. 

Wakeham, 897 S.W.2d 779, 783 (Tex. 1995))). Because James was 

personally served, and because Juliette does not allege any defects in 

service that rise to the level of a due process violation, none of the orders 

in the guardianship proceeding are void. 
30 

The cases cited to us in which courts have held a guardianship 

order void are consistent with our holding here because they involve 

situations where the proposed ward was never personally served. See

Gauci v. Gauci, 471 S.W.3d 899, 902 (Tex. App.—Houston [1st Dist.] 

2015, no pet.) (concluding that a guardianship order was void because 

the proposed ward was not personally served with citation and therefore 

the probate court lacked personal jurisdiction over the ward); In re 

Martinez, No. 04-07-00558-CV, 2008 WL 227987, at *2 (Tex. App.—San 

Antonio Jan. 30, 2008, orig. proceeding) (holding that orders issued in 

guardianship proceeding were void because the proposed ward was 

never served with citation); In re Guardianship of B.A.G., 794 S.W.2d 

510, 513 (Tex. App.—Corpus Christi–Edinburg 1990, no writ) (holding 

that all of the trial court’s actions regarding a guardianship were void 

because the proposed ward was never personally served). 

Juliette relies on dicta in several court of appeals opinions to 

support her contention that a probate court acquires jurisdiction of a 

guardianship proceeding only following “proper service” on the ward. 

See In re Guardianship of Phillips, No. 01-14-01004-CV, 2016 WL 

3391249, at *3 (Tex. App.—Houston [1st Dist.] June 16, 2016, no pet.) 

(“Service of citation on a proposed ward is jurisdictional and a court 

order appointing a guardian without proper service on the ward is 

void.”); In re Guardianship of V.A., 390 S.W.3d 414, 421 (Tex. App.—San 

Antonio 2012, pet. denied) (“We do not dispute the contention that a 

probate court lacks jurisdiction over a guardianship proceeding where 

the proposed ward has not been properly served.”); Whatley v. Walker, 

302 S.W.3d 314, 321 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) 
31 

(“Failure to serve the proposed ward with citation is jurisdictional, and 

a court’s subsequent order appointing a guardian without proper service 

on the ward is void.”); In re Guardianship of Erickson, 208 S.W.3d 737, 

740 (Tex. App.—Texarkana 2006, no pet.) (“[O]nly through compliance 

with Section 633 of the Texas Probate Code [the precursor to Estates 

Code Section 1051.103] is the trial court’s jurisdiction invoked.”). But 

none of these cases involved a challenge to the method by which the 

proposed ward was served. In Phillips, V.A., and Whatley, the primary 

complaint was that the applicant failed to comply with a requirement to 

provide notice to certain third parties, including the ward’s relatives. 

See Phillips, 2016 WL 3391249, at *4–5; V.A., 390 S.W.3d at 418–19; 

Whatley, 302 S.W.3d at 322. None of the courts in those cases voided 

any orders for lack of jurisdiction, nor did they conclude that a defect in 

service deprived the probate court of jurisdiction.10

* * * 

10 In Erickson, the court of appeals held that the probate court lacked 

jurisdiction not because of a service defect, but because the court failed to wait 

the required ten days after service before acting on the application for 

guardianship. 208 S.W.3d at 740–41; see TEX. EST. CODE § 1051.106 (“The 

court may not act on an application for the creation of a guardianship . . . 

earlier than the Monday following the expiration of the 10-day period 

beginning on the date service of notice and citation has been made . . . .”). 

Thus, Erickson does not support Juliette’s argument that a defect in the 

method of service on a proposed ward automatically deprives the probate court 

of jurisdiction over the guardianship proceeding. Erickson is also inconsistent 

with the presumption that failure to comply with a mandatory statutory 

requirement is not jurisdictional unless there is clear legislative intent to the 

contrary. See, e.g., City of DeSoto, 288 S.W.3d at 394; see also In re 

Guardianship of Jordan, 348 S.W.3d 401, 408–10 (Tex. App.—Beaumont 2011, 

no pet.) (calling into question the court’s holding in Erickson based on City of 

DeSoto and other decisions from this Court). 
32 

We conclude that the probate court obtained subject-matter 

jurisdiction over this guardianship proceeding when Mauricette filed 

her application for temporary guardianship and retained subject-matter 

jurisdiction after James’s death. We also conclude the probate court 

properly exercised personal jurisdiction over James and the technical 

defects in service did not void the probate court’s orders because it is 

undisputed that James was personally served with the applications for 

guardianship, James entered a general appearance and participated in 

the proceedings through his attorney ad litem, and Juliette failed to 

establish that any deficiency with respect to the method of personal 

service rose to the level of a violation of due process. We therefore affirm 

the court of appeals’ judgment. 

 

 Rebeca A. Huddle 

 Justice 

OPINION DELIVERED: March 4, 2022