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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JUSTICE DEVINE, joined by Justice Blacklock, dissenting.

Today, the Court sanctions an end run around crucial safeguards 

the Legislature has enacted to shield proposed wards. Because proper 

service on a proposed ward is required whether the ward’s attorney 

ad litem generally appears or not, I respectfully dissent. 

Proposed wards in guardianship proceedings rank among the 

most vulnerable members of our society.1 When determined to be

incapacitated, Texas citizens must relinquish the fundamental “right to 

control [their] own property, liberty, and life in order ‘to promote and 

1 E.g., In re Thetford, 574 S.W.3d 362, 364 (Tex. 2019) (“A guardian can 

provide essential care for the ward. But tragically, wards are also vulnerable 

to neglect, abuse, and exploitation.”).
2

protect [their] well-being.”

2 While this tradeoff is often necessary,3 the 

importance of the interests at stake demands the utmost rigor. 

To that end, the Legislature has erected procedural safeguards to 

protect proposed wards,4 including stringent requirements for service of 

process. By legislative command, the only persons who may personally 

serve a proposed ward are a sheriff, constable, or “disinterested person 

competent to make an oath that the citation or notice was served.”5 No 

such person served James Fairley,

6 but the Court says that’s perfectly 

fine. In the Court’s view, “technical defects in service” don’t matter 

because Mr. Fairley’s court-appointed attorney ad litem effected a 

2 Id. (quoting TEX. EST. CODE § 1001.001(a)).

3 See TEX. EST. CODE § 1001.001(a) (“A court may appoint a 

guardian . . . only as necessary to promote and protect the well-being of the 

incapacitated person.”); Oyama v. California, 332 U.S. 633, 643-44 (1948) (“The 

whole theory of guardianships is to protect the ward during his period of 

incapacity to protect himself.”).

4 See, e.g., TEX. EST. CODE §§ 1054.001 (“[T]he court shall appoint an 

attorney ad litem to represent the proposed ward’s interests.”), 1101.052 (“A 

proposed ward is entitled to a jury trial on request.”), 1101.101(a)(1) (requiring 

clear and convincing evidence that the ward is incapacitated), 1104.002 (“[T]he 

court shall make a reasonable effort to consider the incapacitated person’s 

preference of the person to be appointed guardian and . . . give due 

consideration to th[at] preference[.]”).

5 Id. § 1051.051(b). Of course, the Legislature has provided that service 

on a proposed ward may be accomplished through both personal service on the 

ward and service on the ward’s attorney (which need not be effected in person). 

See id. §§ 1051.051(a), .055(c); ante at 27 n.9. But the Court assumes that 

James also wasn’t properly served through his attorney ad litem. Ante at 23

n.7. Strict compliance with the heightened service requirements must occur

in some way, but here strict compliance did not occur at all.

6 Ante at 21-23.
3

general appearance on his behalf by not objecting to the prospective

guardian’s noncompliance with the statutory requirements.

7 

In my view, allowing an attorney ad litem to acquiesce to a 

violation of the statutory mandate is untenable, especially because a 

ward could not do so himself.

8 An attorney ad litem’s inaction should 

not result in the ward receiving less than the scrupulous service the law 

demands. Holding otherwise affords inadequate protection to those

whom the law manifests a clear intent to provide enhanced protection. 

While we have set aside statutes for providing less than due process 

requires,

9 we have never said courts are free to ignore statutory 

requirements that go beyond what the Court or the Constitution deems 

minimally necessary. If the heightened service requirements the 

Legislature enacted are so easy to evade, they are utterly meaningless. 

But the words of a statute must mean something. The

Legislature’s requirement that a proposed ward receive personal service 

from a sheriff, constable, or disinterested person must advance some 

policy objective beyond merely providing the ward with actual notice of 

the pending guardianship proceeding. If personal service is all that 

7 Id. at 32.

8 See TEX. EST. CODE § 1051.105; cf. In re Guardianship of Erickson, 

208 S.W.3d 737, 742-43 (Tex. App.—Texarkana 2006, no pet.) (“The Probate 

Code implies that a proposed ward may not waive jurisdictional procedures.” 

(citations omitted)).

9 See, e.g., Sax v. Votteler, 648 S.W.2d 661, 667 (Tex. 1983) (holding that 

a statute violates due process when it abolishes a right to bring a 

well-established common-law cause of action without providing a reasonable 

alternative).
4

matters, as the Court holds, the legislative decree as to who may 

effectuate service on a proposed ward is pointless.

10

The Court characterizes a deviation from necessary statutory 

protections as a mere technicality.11 But the fact that the right person 

did not serve Mr. Fairley amounts to something more than a “technical 

defect[] in service.”12 Technical defects would not deprive him of 

protections the Legislature regarded as crucial for the most vulnerable. 

Failing to ensure that the right person served him with notice of the 

guardianship proceeding does.13

The heightened safeguards applicable to guardianship 

proceedings “protect a person’s liberty and property interests before a 

court may take the drastic action of removing [his] ability to make [his] 

10 Under the Texas Constitution, due process entails notice and a 

hearing at a minimum, but the Legislature may add additional protections it 

deems needful—as it did here. Cf., e.g., In re D.T., 625 S.W.3d 62, 69 (Tex. 

2021) (“[T]he Texas Legislature chose to afford parents opposing state-initiated 

termination proceedings more protection than the United States Constitution 

demands.”).

11 See ante at 27-28.

12 Id. at 32.

13 But the law demands strict compliance with even technical 

requirements for serving process. For example, we recently vacated a default 

judgment where “the trial court’s order authorized substitute service at a 

house number on ‘Heathers Hill Drive’ . . . , and the return stated that service 

was executed at the same house number but on ‘Heather Hills Drive’ in 

Dripping Springs.” Spanton v. Bellah, 612 S.W.3d 314, 318 (Tex. 2020); see id. 

at 317 (“Such deviances are certainly not trivial when the trial court has 

authorized substitute service.”). If strict compliance is required for a 

misspelling even though service was actually made at the defendant’s correct 

address, surely it is also required in guardianship proceedings involving a 

vulnerable class of people.
5

own legal decisions. The consequences are too great to risk [] 

haphazard” conformity with those protections.14 In blessing less than 

strict adherence, the Court’s decision exposes proposed wards to myriad 

varieties of chicanery in proceedings where they may be judicially 

determined to be incapacitated and incapable of protecting their own 

interests.15

The sick, elderly, and debilitated among us require and deserve 

meaningful protection. Their rights cannot and should not be sacrificed 

at the altar of judicial economy and administrative convenience. What 

the Legislature has given them, this Court has no right to take away.

We should hold that a failure to strictly comply with the 

heightened service requirements deprives the probate court of 

jurisdiction. Because the Court does not, I respectfully dissent.

John P. Devine

Justice

OPINION DELIVERED: March 4, 2022

14 Saldarriaga v. Saldarriaga, 121 S.W.3d 493, 499 (Tex. App.—Austin 

2003, no pet.).

15 See TEX. EST. CODE § 1101.101(a)(1). All involved in this

guardianship proceeding sought to act in the proposed ward’s best interest,

but, sadly, that is not true of all guardianship proceedings. In other cases, the 

consequences flowing from the rule the Court announces today could be grave.