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NO. 01-14-00788-CV

IN THE FIRST COURT OF APPEALS OF HARRIS COUNTY, TEXAS

IN RE GUARDIANSHIP OF M.P.G. 

DONALD GAUCI, 

APPELLANT, 

V. 

KATHRYN WOESSNER GAUCI, 

APPELLEE. 

APPEAL FROM ORDER APPOINTING PERMANENT GUARDIAN OF THE PERSON 

PURSUANT TO TEXAS ESTATES CODE SECTION 1103.001 

CAUSE NO. 430,385, PROBATE COURT NO. 2 OF HARRIS COUNTY, TEXAS

THE HONORABLE MIKE WOOD, PRESIDING

APPELLANT’S REPLY BRIEF 

John L. Dagley (TBN 05310500) 

Kenneth J. Fair (TBN 24007171) 

Katie Tipper-McWhorter (TBN 24083974) 

CAMPBELL HARRISON & DAGLEY L.L.P.

4000 Two Houston Center 

909 Fannin Street, Suite 4000 

Houston, TX 77010 

(713) 752-2332 Telephone 

(713) 752-2330 Facsimile 

jdagley@chd-law.com

kfair@chd-law.com

ktipper@chd-law.com

ATTORNEYS FOR APPELLANT DONALD 

GAUCI 

ACCEPTED

01-14-00788-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

12/30/2014 2:36:12 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 12/30/2014 2:36:12 PM CHRISTOPHER A. PRINE Clerk
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IDENTITY OF PARTIES AND COUNSEL

APPELLANT

Donald Gauci John L. Dagley

Texas Bar No. 05310500

Kenneth J. Fair

Texas Bar No. 24007171

Katie Tipper-McWhorter

Texas Bar No. 24083974

CAMPBELL HARRISON & DAGLEY L.L.P.

Two Houston Center

909 Fannin Street, Suite 4000

Houston, TX 77010

713-752-2332 Telephone

713-752-2330 Facsimile

jdagley@chd-law.com

kfair@chd-law.com

ktipper@chd-law.com

APPELLEE

Kathryn Woessner Gauci Debra E. Hunt

MOORE & HUNT

P.O. Box 300788

Houston, Texas 77230

713-522-4282 Telephone

713-522-9604 Facsimile

debbie@mooreandhunt.com
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TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ............................................................2

TABLE OF CONTENTS...........................................................................................3

INDEX OF AUTHORITIES......................................................................................4

SUMMARY OF THE ARGUMENT ........................................................................6

ARGUMENT.............................................................................................................7

A. The order imposing guardianship is void and should be reversed for lack 

of jurisdiction...................................................................................................7

1. The United States and Texas Constitutions require personal service of 

citation on a proposed ward before imposing a guardianship......................7

2. Appellee’s argument that the language “notwithstanding any other law” 

contained in Texas Estates Code Section 1103.002 absolves her failure 

to personally serve both the Appellant and the proposed ward is flawed, 

and the guardianship order remains void. ..................................................10

B. Texas Estates Code Section 1103.002 only applies where a family court 

has previously declared the proposed ward to be a “disabled child.” 

Because the guardianship was entered without a hearing and M.P.G. was 

never adjudicated a “disabled child” the guardianship order is void. ...........14

PRAYER..................................................................................................................16

CERTIFICATE OF COMPLIANCE.......................................................................17
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INDEX OF AUTHORITIES

CASES

Autozone, Inc. v. Duenes, 108 S.W.3d 917 (Tex. App.—Corpus Christi 

2003, no pet.)..........................................................................................................9

Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712 (Tex. 1990).....................11

Browning v. Placke, 698 S.W.2d 362 (Tex. 1985)..................................................10

Cook v. Cameron, 733 S.W.2d 137 (Tex. 1987) .....................................................10

Dodd v. Twin City Fire Ins. Co., 545 S.W.2d 766 (Tex. 1977)...............................10

Holmans v. Transource Polymers, Inc., 914 S.W.2d 189 (Tex. App.—Fort 

Worth 1995, writ denied).....................................................................................11

In re Allcat Claims Serv., L.P., 356 S.W.3d 455 (Tex. 2011).................................11

In re Bokeloh, 21 S.W.3d 784 (Tex. App.—Houston [14th Dist.] 2000, orig. 

proceeding).............................................................................................................9

In re E.R., 385 S.W.3d 552 (Tex. 2012)....................................................................8

In re Garza, 126 S.W.3d 268 (Tex. App.—San Antonio 2003, orig. 

proceeding).............................................................................................................9

In re Guardianship of B.A.G., 794 S.W.2d 510 (Tex. App.—Corpus Christi 

1990, no writ).........................................................................................................9

In re Guardianship of Castanon, 2007 WL 700987 (Tex. App.—Waco 2007, 

no pet.)....................................................................................................................8

In re Guardianship of Erickson, 208 S.W.3d 737 (Tex. App.—Texarkana 

2006, no pet.)..........................................................................................................9

In re Guardianship of Winn, 372 S.W.3d 291 (Tex. App.—Dallas 2012, no 

pet.).......................................................................................................................14

In re Mask, 198 S.W.3d 231 (Tex. App.—San Antonio 2006, orig. 

proceeding).............................................................................................................8

Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 

L. Ed. 865 (1950) ...................................................................................................7

Ortiz v. Gutierrez, 792 S.W.2d 118 (Tex. App.—San Antonio 1989, writ 

dism'd) ..............................................................................................................8, 10

Perry v. Ponder, 604 S.W.2d 306 (Tex. Civ. App.—Dallas 1980, no writ) .............9

Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884 (Tex. 

1985) (per curiam)..................................................................................................8

Werner v. Colwell, 909 S.W.2d 866 (Tex. 1995) ......................................................9
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Whatley v. Walker, 302 S.W.3d 314 (Tex. App.—Houston [14th Dist.] 2009, 

no pet.)....................................................................................................................9

Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990)...........................................................8

STATUTES

TEX. ESTATES CODE § 1022.001 ..............................................................................12

TEX. ESTATES CODE § 1022.002 ..............................................................................12

TEX. ESTATES CODE § 1051.103 ................................................................................8

TEX. ESTATES CODE § 1055.051 ................................................................. 13, 14, 15

TEX. ESTATES CODE § 1101.051 ..............................................................................16

TEX. ESTATES CODE § 1101.052 ..............................................................................15

TEX. ESTATES CODE § 1101.101 ..............................................................................16

TEX. ESTATES CODE § 1102.005 ..............................................................................12

TEX. ESTATES CODE § 1103.002 ................................................................. 12, 14, 15

TEX. FAM. CODE § 154.302............................................................................... 12, 15

TEX. FAM. CODE § 154.309............................................................................... 12, 15

TEX. FAM. CODE § 155.001............................................................................... 13, 15

TEX. GOV’T CODE § 311.021(1)...............................................................................11

RULES

TEX. R. CIV. P. 124...............................................................................................9, 10

CONSTITUTIONAL PROVISIONS

Laudenberg, Bill Analysis of H. B. 585, Judiciary Committee Report 

(Unamended) (2007) ............................................................................................12
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SUMMARY OF THE ARGUMENT

Appellant argues that the trial court’s order imposing a guardianship on 

M.P.G. must be reversed for the following reasons. 

Appellee’s failure to serve M.P.G. (the proposed ward) or Donald Gauci (the 

proposed ward’s father) personally with citation violates their constitutional dueprocess rights and violates Texas Estates Code Section 1051.103. This defect is 

jurisdictional, and Appellee’s failure to strictly comply with the Estates Code’s 

service requirements means that the trial court never gained jurisdiction over 

M.P.G. or Donald, which renders the guardianship order void. Furthermore, 

Appellee’s duty to ensure service of process before the guardianship was imposed

is not altered by the “notwithstanding any other law” language in Texas Estates 

Code Section 1103.002; that section cannot eliminate the constitutional dueprocess requirement of proper service and notice to the parties interested in the 

proposed guardianship. 

Furthermore, the Appellee sought the guardianship, and the trial court 

granted it without a hearing, under Chapter 1103 of the Texas Estates Code. A 

hearing on a guardianship application is mandatory unless the provisions of 

Chapter 1103 are fully satisfied. That chapter creates a streamlined procedure for 

imposing a guardianship on a “disabled child,” as adjudicated by a family court in 

a suit affecting the parent-child relationship (SAPCR). Here, however, M.P.G. was
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never adjudicated to be a “disabled child” in a SAPCR; therefore, Chapter 1103

did not apply, and it was error to impose a guardianship without a hearing.

ARGUMENT

A. The order imposing guardianship is void and should be reversed for 

lack of jurisdiction.

1. The United States and Texas Constitutions require personal service of 

citation on a proposed ward before imposing a guardianship. 

A proposed ward must be served with personal citation because a 

guardianship directly affects an individual’s liberty interests. The Fifth and

Fourteenth Amendments to the United States Constitution prohibit federal and 

state governments from depriving any person of life, liberty, or property 

without due process of law. Likewise, Article 1, Section 19 of the Texas 

Constitution states, “No citizen of this State shall be deprived of life, liberty, 

property, privileges or immunities, or in any manner disfranchised, except by the 

due course of the law of the land.” These due-process requirements include proper 

service of process, as stated by the U.S. Supreme Court:

An elementary and fundamental requirement of due 

process in any proceeding which is to be accorded 

finality is notice reasonably calculated, under all the 

circumstances, to apprise interested parties of the 

pendency of the action and afford them an opportunity to 

present their objections. ... [W]hen notice is a person’s 

due, process which is a mere gesture is not due process.1

 

1 Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S. Ct. 652, 657, 94 L. Ed. 

865 (1950).
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Similarly, the Texas Supreme Court has held that “Personal jurisdiction, a vital 

component of a valid judgment, is dependent ‘upon citation issued and served in a 

manner provided for by law.’”

2

If service is invalid, it is “of no effect” and cannot 

establish the trial court's jurisdiction over a party.3In short, service of process is a 

fundamental constitutional right that provides the recipient with due process of law

through adequate notice of legal proceedings that may affect his rights. 

The Texas Estates Code also requires service of citation, providing that a

sheriff or other officer of the court must personally serve citation on a list of 

interested parties including: (1) the proposed ward if he or she is 12 years of age or 

older and (2) the proposed ward’s parents.

4

“The power of a court to appoint a 

guardian is a special power conferred by statute and compliance with the statute is 

a condition precedent to the valid exercise of that power and is jurisdictional.”5

Moreover, a proposed ward alleged to be an incompetent person cannot waive 

service of citation.6 Chapter 1051 of the Estates Code does not set out optional 

 

2

In re E.R., 385 S.W.3d 552, 563 (Tex. 2012) (quoting Wilson v. Dunn, 800 S.W.2d 833, 836 

(Tex. 1990)).

3 Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985) (per 

curiam).

4 TEX. ESTATES CODE § 1051.103(a) (emphasis added).

5 Ortiz v. Gutierrez, 792 S.W.2d 118, 119 (Tex. App.—San Antonio 1989, writ dism'd).

6

In re Guardianship of Castanon, 2007 WL 700987, at *2 n. 2 (Tex. App.—Waco 2007, no 

pet.); In re Mask, 198 S.W.3d 231, 234 (Tex. App.—San Antonio 2006, orig. proceeding).
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procedures; only through strict compliance with these service requirements is the 

probate court’s jurisdiction invoked.7

This right to notice and due process is so fundamental that a court will not 

retain personal jurisdiction over a proposed ward until the citation requirement has 

been fulfilled. A judgment or order is void when it is apparent that the court 

rendering it lacked jurisdiction of either the parties or the subject matter of the 

lawsuit.8 For a trial court to have jurisdiction over a party, the party must be 

properly before the court in the pending controversy as authorized by procedural 

statutes and rules.9 A trial court does not have jurisdiction to enter a judgment or 

order against a respondent unless the record shows proper service of citation on the 

respondent.

10 A void order has no force or effect and confers no rights; it is a mere 

nullity.11 Thus, failure to serve a proposed ward with citation is jurisdictional, and 

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

ward is void. 12

 

7

In re Guardianship of Erickson, 208 S.W.3d 737, 740 (Tex. App.—Texarkana 2006, no pet.);

In re Guardianship of B.A.G., 794 S.W.2d 510, 511 (Tex. App.—Corpus Christi 1990, no 

writ).

8

In re Bokeloh, 21 S.W.3d 784, 794 (Tex. App.—Houston [14th Dist.] 2000, orig. proceeding).

9 Perry v. Ponder, 604 S.W.2d 306, 322 (Tex. Civ. App.—Dallas 1980, no writ).

10 Tex. R. Civ. P. 124; Werner v. Colwell, 909 S.W.2d 866, 869–70 (Tex. 1995); Autozone, Inc. 

v. Duenes, 108 S.W.3d 917, 920 (Tex. App.—Corpus Christi 2003, no pet.).

11 In re B.A.G., 794 S.W.2d at 511; In re Garza, 126 S.W.3d 268, 271 (Tex. App.—San Antonio 

2003, orig. proceeding).

12 See Whatley v. Walker, 302 S.W.3d 314, 321 (Tex. App.—Houston [14th Dist.] 2009, no pet.)

(failure to serve citation is jurisdictional, and subsequent order appointing guardian without 

proper service is void). 
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Appellee cannot rely on alleged instructions from the probate court 

regarding appropriate service of citation on a proposed ward and his father. Neither 

the probate court nor the Texas Estates Code has the power to deprive an 

individual of his or her rights to due process in the form of personal service of 

citation. It is undisputed that neither M.P.G. (the proposed ward) nor Donald (his 

father) were personally served with process on Kathryn Gauci’s application for 

guardianship.

13 Because neither M.P.G. nor Donald was served with process, the 

probate court did not have jurisdiction over them, and any order entered 

adjudicating their rights is void.14 The failure to personally serve the proposed 

ward, M.P.G., and the proposed ward’s parent, Donald, requires reversal of the 

order creating the guardianship.

2. Appellee’s argument that the language “notwithstanding any other law” 

contained in Texas Estates Code Section 1103.002 absolves her failure to 

personally serve both the Appellant and the proposed ward is flawed, and 

the guardianship order remains void. 

Appellee’s claim that a guardianship can be imposed on M.P.G. without 

personal service of citation on M.P.G. and Donald violates their constitutional 

rights to due process. Appellee argues, however, that Texas Estates Code Section 

 

13 See CR 1:126–128.

14 See TEX. R. CIV. P. 124; Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985); Cook v. 

Cameron, 733 S.W.2d 137, 140 (Tex. 1987); Dodd v. Twin City Fire Ins. Co., 545 S.W.2d 766, 

770 (Tex. 1977); Ortiz, 792 S.W.2d at 119.
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1103.002(a) does not require her to personally serve M.P.G. and Donald because it 

contains the language “notwithstanding any other law”.

This reading of Section 1103.002 is constitutionally infirm and would 

require one to assume that the Legislature intended to circumvent the due-process 

requirement of service of process, thereby rendering the statute unconstitutional. 

But, when possible, courts give statutes a construction consistent with constitutional requirements, because the Legislature is presumed to have intended 

compliance with state and federal constitutions.15 When a statute lends itself to two 

interpretations, one that is reasonable and within the constitution and one that

would render the statute unconstitutional, a court must adopt the interpretation that 

protects the statute’s constitutionality.16

In order to understand the phrase “notwithstanding any other law” in Estates 

Code Section 1103.002, one must understand the problem that Chapter 1103 was 

intended to rectify. Chapter 1103 was intended to resolve a jurisdictional conflict 

that can arise between family courts (usually district courts) and the courts of 

original probate jurisdiction (which are county courts, county courts-at-law, or 

statutory probate courts, depending on the county). When a child is adjudicated to 

be disabled in a suit affecting the parent-child relationship (SAPCR), the family 

 

15 TEX. GOV’T CODE § 311.021(1); Brady v. Fourteenth Court of Appeals, 795 S.W.2d 712, 715 

(Tex. 1990); see also In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 468 (Tex. 2011).

16 Holmans v. Transource Polymers, Inc., 914 S.W.2d 189, 191 (Tex. App.—Fort Worth 1995, 

writ denied).
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court can have continuing exclusive jurisdiction over the child past that child’s 

18th birthday, and can order support, possession, and access for that child.17

However, in certain circumstances, a guardianship may be required for that child, 

and only courts of original probate jurisdiction have the power to impose 

guardianships.18 As Appellee cited in her brief, in drafting Chapter 1103, the 

Judiciary Committee recognized that “[w]hen a disabled child reaches adult age, 

custodial parents must seek a guardianship for continued care of an incapacitated 

child, but cannot do so in a family court. Only probate courts have jurisdiction over 

adult guardianships. State law prohibits transferring custody cases from family 

court to another court’s jurisdiction, even after the child becomes an adult. This 

could prevent the appointment of a guardian in an appropriate case.”19

Chapter 1103, therefore, is used only in a very limited circumstance, where a 

family court with continuing exclusive jurisdiction has already determined that the 

child is disabled and in need of continuing support into adulthood.20 In an effort to 

streamline the guardianship process in these limited situations where significant 

litigation has most likely already taken place, a hearing is not required in order to 

impose a guardianship.21 Therefore, the language “notwithstanding any other law” 

 

17 TEX. FAM. CODE §§ 154.302, 154.309.

18 TEX. ESTATES CODE §§ 1022.001, 1022.002, 1022.005.

19 Laudenberg, Bill Analysis of H. B. 585, Judiciary Committee Report (Unamended) (2007). 

20 TEX. ESTATES CODE § 1103.002.

21 Id. § 1103.002(a)(1). 
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is referring to the traditional requirement that a hearing must be held in order for a 

guardianship to be imposed.22

Furthermore, “notwithstanding any other law” is also a reference to Family 

Code Section 155.001, which provides that “a court acquires continuing, exclusive 

jurisdiction over the matters provided for by this title in connection with a child on 

the rendition of a final order” and that “[i]f a court of this state has acquired 

continuing, exclusive jurisdiction, no other court of this state has jurisdiction of a 

suit with regard to that child except as provided by this chapter or Chapter 262.”23

Section 1103 remedies the conflict described by the Judiciary Committee, allowing 

a probate court to create a guardianship where a family court with continuing 

exclusive jurisdiction had already determined the proposed ward to be a disabled 

child under the Texas Family Code.

Appellee’s interpretation of Chapter 1103 is overbroad and would suggest 

that a proposed ward’s constitutional due process rights may be infringed upon by

statute. Appellee’s interpretation would strip both Donald and M.P.G. of their 

constitutional rights, and allow a guardianship to be imposed without notice or 

hearing. The fact remains that without proper service of citation, the trial court 

never gained the requisite jurisdiction to impose a guardianship. As a result, this 

 

22 Id. § 1055.051(a)(2). 

23 TEX. FAM. CODE § 155.001(a), (c).
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Court should reverse the trial court’s order and dismiss the guardianship 

proceeding for want of jurisdiction.

B. Texas Estates Code Section 1103.002 only applies where a family court 

has previously declared the proposed ward to be a “disabled child.” 

Because the guardianship was entered without a hearing and M.P.G.

was never adjudicated a “disabled child” the guardianship order is void. 

In the alternative, the Court should reverse the guardianship order and 

remand for a full hearing on Appellee’s guardianship application. Estates Code 

Section 1055.051 prohibits a trial court from considering a guardianship 

application by submission; instead, a full evidentiary hearing is required.24 No such

hearing was held in this case.

The guardianship order in this case was entered under Estates Code Section 

1103.002, which applies only to guardianship proceedings where the proposed 

ward has previously been declared a “disabled child” in a SAPCR. As noted in the 

previous section, in the narrow circumstance where a family court retains 

jurisdiction over a disabled child after reaching adulthood, the Estates Code 

provides a method of creating a guardianship without the need for a hearing.25

Section 1103.002(a) explicitly states that a guardian may be appointed without 

hearing only when (1) “the applicant is a person who was appointed conservator of 

a disabled child,” and (2) “the proposed ward is an incapacitated adult with respect 

 

24 TEX. ESTATES CODE § 1055.051; In re Guardianship of Winn, 372 S.W.3d 291, 301 (Tex. 

App.—Dallas 2012, no pet.).

25 TEX. ESTATES CODE § 1103.002.
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to whom another court obtained continuing, exclusive jurisdiction in a suit 

affecting the parent child relationship when the person was a child.”26

The phrase “disabled child” is a term of art used in the Texas Family Code.27

In order for the family court to determine whether a child is a “disabled child,” the 

court must make specific factual findings.28 If those findings are made, the family 

court can order the disabled child’s parents to support the child, and can allocate 

possession and access between the parents, after the child’s 18th birthday.29

Moreover, the family court retains continuing exclusive jurisdiction over the child 

and the parents to modify or enforce its orders.30

In this case, M.P.G. was never found to be a “disabled child” by the 309th 

Judicial District Court.

31 Consequently, Kathryn Gauci was never “appointed 

conservator of a disabled child,” and thus she could not take advantage of the 

streamlined guardianship procedures provided in Section 1103.002 of the Estates 

Code. Instead, she was required by statute to have a hearing on her guardianship 

application, for which the proposed ward was entitled to request a jury.32 During 

that hearing, the trial court would have had to make certain inquiries and 

 

26 Id. § 1103.002(a) (emphasis added). 

27 TEX. FAM. CODE § 154.302.

28 Id.

29 Id. §§ 154.302, 154.309.

30 Id. § 155.001.

31 CR 1:9-68.

32 TEX. ESTATES CODE §§ 1055.051(a)(2) (application for guardianship cannot be considered on 

submission), 1101.052 (proposed ward entitled to jury trial on request).
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evidentiary findings before imposing a guardianship.

33 None of this ever 

occurred.34

Since the procedures provided in the Texas Estates Code for imposing a 

guardianship were not followed, the Order Appointing Permanent Guardian of the 

Person Pursuant to Texas Estates Code Section 1103.001 was error. Consequently, 

the order must be reversed.

PRAYER

For the foregoing reasons, Appellant asks the Court to reverse the Order 

Appointing Permanent Guardian of the Person Pursuant to Texas Estates Code 

Section 1103.01 entered on June 24, 2014, and to dismiss this case for lack of 

jurisdiction, or in the alternative, remand this case to the trial court for further 

proceedings.

 

33 Id. §§ 1101.051, 1101.101.

34 RR 1:4; see generally CR 1:126–28.
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Respectfully submitted,

John L. Dagley

State Bar No. 05310050

jdagley@chd-law.com

Kenneth J. Fair

State Bar No. 24007171

kfair@chd-law.com

Katie Tipper-McWhorter

State Bar No. 24083974

ktipper@chd-law.com

4000 Two Houston Center

909 Fannin Street, Suite 4000

Houston, TX 77010

(713) 752-2332 Telephone

(713) 752-2330 Facsimile 

ATTORNEYS FOR APPELLANT

DONALD GAUCI

CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft 

Word 2007 in 14-point Times New Roman and contains 2,142 words, as 

determined by the program’s word-count function, excluding the sections of the 

document listed in Texas Rule of Appellate Procedure 9.4(i)(1). The aggregate of 

all briefs filed by Appellant in this case total 5,089 words.

Kenneth J. Fair
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CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this document has been 

served on the following counsel on December 30, 2014, as required by the Texas 

Rules of Appellate Procedure, including by electronic mail. 

Debra E. Hunt

MOORE & HUNT

P.O. Box 300788

Houston, Texas 77230

Phone: 713-522-4282

Fax: 713-522-9604

Email: debbie@mooreandhunt.com

Kenneth J. Fair