NUMBER 13-11-00287-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

IN THE INTEREST OF X.L.S., A MINOR CHILD

On appeal from the County Court at Law No. 1

of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Perkes

Memorandum Opinion by Justice Garza

Appellant Nora Lopez, mother of X.L.S., a minor child, appeals from the denial of 

a statutory bill of review filed to set aside an order appointing appellee Arnoldo Argullin, 

X.L.S.’s great-grandfather, as X.L.S.’s permanent guardian. See TEX. PROB. CODE ANN.

§ 657 (West 2003).1 Appellant contends that the statutory bill of review should have 

been granted to correct the trial court’s substantial error in appointing Argullin as 

 

1

Section 657 of the probate code provides that an interested person may file a bill of review to 

revise or correct an erroneous decision, order, or judgment rendered by a court in a guardianship 

proceeding within two years of the decision. See TEX. PROB. CODE ANN. § 657 (West 2003). We note that 

Argullin did not file a brief to assist us in our disposition of this appeal. 
2

permanent guardian. By three issues, appellant contends the trial court erred by: (1) 

appointing Argullin as permanent guardian when he had not filed an application for 

permanent guardianship; (2) appointing a non-parent as X.L.S.’s guardian without a 

showing of necessity; and (3) entering a judgment against her when she was a minor at 

the time of the guardianship proceeding and was not represented by a next friend or 

guardian ad litem. We reverse and remand to the trial court. 

I. BACKGROUND

On May 21, 2008, when X.L.S. was approximately seven months old, Argullin 

filed an application for appointment as X.L.S.’s temporary guardian. See id. § 875 

(West Supp. 2011). On the same day, the trial court appointed Argullin as X.L.S.’s 

temporary guardian. 

On September 9, 2008, the trial court held a hearing to consider the necessity for 

the continuation of Argullin’s appointment as temporary guardian. Argullin, who was 

represented by counsel, and his wife appeared at the hearing. Appellant appeared pro 

se and Aaron Sillero, X.L.S.’s father, appeared pro se. During the hearing, Argullin’s 

counsel asked whether appellant and Sillero agreed with confirming Argullin’s 

appointment as X.L.S.’s temporary guardian. Appellant said, “No.” Sillero said he and 

appellant were “trying to get [their] son back.” Several times throughout the hearing, 

there were references to Argullin’s application for appointment as temporary guardian. 

For example, Argullin’s counsel stated, “Mr. Arguillin [sic], you are asking the Court to 

confirm your appointment as temporary guardian of [X.L.S.] . . . ?” Shortly thereafter, 

appellant appeared to agree only to temporary guardianship.2 The trial court stated, 

 

2

Specifically, appellant stated, “I agree that she can take care of him temporarily, but as far as—” 

Although appellant did not specify the identity of “she” in this statement, we assume she was referring to 
3

“Well, we’re just asking for temporary guardianship right now.” Immediately thereafter, 

Argullin’s counsel stated, “We are, Your Honor, although we had previously asked that 

the Court convert it to permanent, but we’ll take that up at the conclusion of the hearing, 

if necessary.” Shortly thereafter, X.L.S.’s guardian ad litem noted, “And this is 

temporary guardianship.” 

At the conclusion of the hearing, Argullin’s counsel presented the trial court with 

two proposed orders: one confirming Argullin as temporary guardian and one 

appointing him as permanent guardian. The trial court stated that it was granting 

permanent guardianship. The trial court signed an order appointing Argullin as 

permanent guardian that same day, September 9, 2008. 

On September 7, 2010, appellant filed a statutory bill of review, contending that 

the order appointing Argullin as X.L.S.’s permanent guardian should be set aside 

because: (1) her due process rights were violated and (2) she had a meritorious 

defense to Argullin’s appointment as permanent guardian because she was X.L.S.’s 

natural parent. On March 22, 2011, the trial court held a hearing on appellant’s bill of 

review. Both appellant and Argullin were represented by counsel. At the hearing, 

appellant’s counsel complained that: (1) Argullin had only applied for temporary 

guardianship, but was appointed as permanent guardian; (2) appellant had no notice of 

the September 9, 2008 hearing; and (3) appellant was prevented from presenting a 

meritorious defense because she was a minor at the time of the guardianship hearing 

and was not represented by a next friend or guardian ad litem. The trial court stated 

that it had no intention of removing X.L.S. from Argullin’s care because X.L.S. was 

being taken care of and was doing well. When appellant asked to address the court, 

 

Argullin’s wife. 
4

the court refused, noting that it was not concerned with her or Argullin, but with the best 

interest of X.L.S. On April 11, 2011, the trial court signed an order denying appellant’s 

bill of review. 

Pursuant to appellant’s request, on May 2, 2011, the trial court issued findings of 

fact and conclusions of law. Among the findings of fact was that, at the guardianship 

hearing on September 9, 2008, neither Argullin nor anyone else prevented appellant 

from asserting a defense. In its conclusions of law, the trial court found, among other 

things, that appellant had not shown any meritorious defense to Argullin’s appointment 

as permanent guardian of X.L.S. This appeal followed. 

II. STANDARD OF REVIEW AND APPLICABLE LAW

In an appeal from the denial of a statutory bill of review, an appellate court 

determines whether (1) an interested person (2) filed a timely bill of review, and (3) 

showed substantial error. See Buck v. Estate of Buck, 291 S.W.3d 46, 53 (Tex. App.—

Corpus Christi 2009, no pet.).3 The record reflects that appellant timely filed her 

statutory bill of review within two years of the trial court’s order, see TEX. PROB. CODE 

ANN. § 657, and because she is X.L.S.’s natural parent, she is an interested party. See 

id. § 601(15) (West Supp. 2011) (“‘Interested persons’ or ‘persons interested’ means . . .

a person interested in the welfare of an incapacitated person, including a minor.”). 

Therefore, we must determine only whether she proved that substantial error was 

committed by the trial court. See TEX. PROB. CODE ANN. § 657. 

 

3 We note that both appellant’s petition for bill of review and the trial court’s findings of fact and 

conclusions of law appear to confuse the standard applicable to an equitable bill of review with the 

standard applicable to a statutory bill of review. “A statutory bill of review[—as here—]need not conform 

to the rules and is not limited by the restrictions of an equitable bill of review.” Buck v. Estate of Buck, 

291 S.W.3d 46, 53 (Tex. App.—Corpus Christi 2009, no pet.).
5

We review a trial court’s conclusions of law de novo. Nadolney v. Taub, 116 

S.W.3d 273, 280 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). The standard of 

review for conclusions of law is whether they are correct. Id. We will uphold 

conclusions of law on appeal if the judgment can be sustained on any legal theory the 

evidence supports. Id.

III. DISCUSSION

A. Jurisdiction

By her first issue, appellant contends that: (1) the trial court lacked jurisdiction to 

appoint a permanent guardian for X.L.S. when Argullin had not filed an application for 

permanent guardianship; and (2) the trial court violated appellant’s due process rights 

by granting an order unsupported by the pleadings. We begin by addressing appellant’s 

sub-issue that the trial court lacked jurisdiction to appoint a permanent guardian for 

X.L.S. 

Appellant argues that the trial court lacked jurisdiction to appoint a permanent 

guardian because it failed to comply with the statutory requirements of the probate code 

regarding appointment of a permanent guardian. Appellant relies on In re Erickson, 208 

S.W.3d 737, 740 (Tex. App.—Texarkana 2006, no pet.), which held that compliance 

with the probate code requirement of a ten-day waiting period following an application 

for guardianship was jurisdictional. See id. at 741 (“Any attempt by the trial court to 

exercise the special power of appointment of a guardian without compliance with 

express statutory jurisdictional provisions is a nullity.”). 

Since Erickson, however, the Texas Supreme Court has held that a mandatory 

statutory requirement is presumed not to be jurisdictional, and that such a presumption 
6

may be “overcome only by clear legislative intent to the contrary.” City of Desoto v. 

White, 288 S.W.3d 389, 394 (Tex. 2009); see also In the Guardianship of the Person & 

Estate of Jordan, 348 S.W.3d 401, 409 (Tex. App.—Beaumont 2011, no pet.) (holding 

that strict compliance with probate code requirements regarding guardianship 

appointment was not jurisdictional). Appellant complains that the trial court lacked 

jurisdiction because Argullin failed to comply with the probate code requirements to 

obtain permanent guardianship, including the requirement to submit a written 

application for permanent guardianship, see TEX. PROB. CODE ANN. § 682 (West Supp. 

2011), and the requirement to serve appellant and Sillero with notice of such an 

application, see id. § 633.4 We presume that the statutory requirements of the probate 

code identified by appellant are not jurisdictional, see City of Desoto, 288 S.W.3d at 

394, and appellant has not shown such a presumption to be overcome by “clear 

legislative intent to the contrary.” See id. We conclude that any failure by Argullin to 

comply with the statutory requirements of the probate code did not deprive the trial court 

of jurisdiction. We overrule appellant’s first sub-issue regarding jurisdiction. 

B. Relief Unsupported by Pleadings

By the second sub-issue of her first issue, appellant argues that the trial court 

deprived her of her due process right to notice by granting relief—permanent 

guardianship to Argullin—that was not requested by the pleadings. Appellant argues 

that because Argullin’s application sought only temporary guardianship, she had no 

 

4 We note that both sections 633 and 682 have been recently amended and the present case is 

governed by the prior versions of the statutes. See Act of June 17, 2011, 82nd Leg., R.S., ch. 599, § 6, 

2011 Tex. Sess. Law Serv. (West 2011). Because the amendments are not material to any issue before 

us, however, we cite to the current versions of the statutes. 
7

notice that Argullin sought permanent guardianship until the end of the hearing when 

the trial court announced it was appointing Argullin as X.L.S.’s permanent guardian. 

We agree that the trial court committed substantial error by granting relief that 

was not supported by the pleadings. As noted above, several times during the 

guardianship hearing, Argullin’s counsel, the trial court, and X.L.S.’s guardian ad litem 

specifically stated that the issue was confirmation of Argullin’s appointment as 

temporary guardian. It is undisputed that Argullin’s application requested only that he 

be appointed as X.L.S.’s temporary guardian. Although Argullin’s counsel made a 

vague reference at the hearing regarding a previous request that the court convert the 

temporary guardianship to permanent guardianship, the record contains no application 

for permanent guardianship, and nothing suggests that appellant had notice that 

Argullin’s appointment as X.L.S.’s permanent guardian was before the trial court. See 

In re A.B.H. & L.N.H., 266 S.W.3d 596, 601 (Tex. App.—Fort Worth 2008, no pet.) 

(finding that trial court abused its discretion in appointing appellee as sole managing 

conservator where appellee had only requested appointment as joint managing 

conservator and parties did not understand that issue was before the trial court); In re 

B.M., 228 S.W.3d 462, 465 (Tex. App.—Dallas 2007, no pet.) (finding that trial court 

abused its discretion in rendering final order on custody when motion to modify 

requested only temporary relief); see also In re J.A.L., K.D.L., & M.R.L, No. 02-10-374-

CV, 2012 Tex. App. LEXIS 2060, at *7 (Tex. App.—Fort Worth March 15, 2012, no pet.)

(mem. op.) (holding that trial court abused its discretion by granting appellee more relief 

than she requested in her pleadings). Thus, we conclude that the trial court abused its 

discretion by appointing Argullin permanent guardian of X.L.S. Accordingly, appellant 
8

proved the substantial error element of her statutory bill of review, and the trial court 

erred in denying her bill of review. See Buck, 291 S.W.3d at 53. We sustain appellant’s 

second sub-issue of her first issue.5

IV. CONCLUSION

We reverse the trial court’s denial of appellant’s bill of review and remand to the 

trial court for further proceedings consistent with this opinion.

DORI CONTRERAS GARZA

Justice

Delivered and filed the

18th day of October, 2012.

 

5 Having sustained this dispositive issue, we need not address appellant’s remaining issues. See 

TEX. R. APP. P. 47.1.