Temporary Guardianships and Other Emergency Relief
§ 2.1Purpose of Temporary Guardianship
If there is insufficient time to create a permanent guardianship, the court shall appoint a temporary guardian, with limited power, as the circumstances require, when presented with substantial evidence that a person is a minor or adult incapacitated person and the court has probable cause to believe that the immediate appointment of a guardian is required. Tex. Est. Code § 1251.001. A temporary guardianship created for immediate necessity may not remain in effect for more than sixty days. Tex. Est. Code § 1251.151. Theoretically, this should allow sufficient time to complete all the formalities and notice requirements to create a permanent guardianship.
Many courts are reluctant to create a temporary guardianship for immediate necessity if other remedies are available that will allow the status quo to be reasonably kept until the notice requirements of a permanent guardianship can be completed. If the primary concern is that the proposed ward needs to be protected from his own bad choices or the exploitation of others, it is often more appropriate to seek immediate injunctive relief when filing the initial guardianship application. See part II in this chapter.
§ 2.2Procedure and Standing to Bring Application
Temporary and permanent guardianships have certain different procedural requirements. But all permanent guardianship provisions regarding a party’s standing also apply to temporary guardianships. Tex. Est. Code § 1251.102. Thus, anyone who has the right to commence a permanent guardianship proceeding and be appointed permanent guardian may also commence a temporary guardianship proceeding and be appointed temporary guardian. See section 4.16 in this manual. Similarly, anyone disqualified to be appointed permanent guardian is also disqualified to be appointed temporary guardian. See section 4.12.
Original jurisdiction for a guardianship proceeding is in a statutory probate court. Tex. Est. Code § 1022.002(c). The following counties in Texas hold a statutory probate court: Bexar, Collin, Dallas, Denton, El Paso, Galveston, Harris, Hidalgo, Tarrant, and Travis. The county court will have original jurisdiction of a guardianship proceeding in a county in which there is no statutory probate court or a county court at law exercising original probate jurisdiction. Tex. Est. Code § 1022.002(a).
In counties without a statutory probate court or a county court at law exercising original probate jurisdiction, contested guardianship proceedings originally filed in a constitutional county court may, on a judge’s motion, and must, on motion of any party, be transferred to district court or assigned to a statutory probate court. Tex. Est. Code § 1022.003(a)(2). Alternatively, the judge shall request the assignment of a statutory probate court judge on the motion of any party or may also do so on the judge’s own motion. Tex. Est. Code § 1022.003(a)(1). A court exercising original probate jurisdiction also has jurisdiction of all matters related to the guardianship proceeding. Tex. Est. Code § 1022.001. See also In re Guardianship of Peterson, Nos. 01-15-00567-CV, 01-15-00586-CV, 2016 WL 4487511, at *5 (Tex. App.—Houston [1st Dist.] Aug. 25, 2016, no pet.) (mem. op.) (“[A] probate court retains jurisdiction to settle an estate so long as a justiciable controversy remains.”).
The provisions of the Texas Estates Code applicable to guardianships also apply to temporary guardianships “to the extent the provisions may be made applicable.” Tex. Est. Code § 1251.102. Additionally, “[t]o the extent applicable and not inconsistent with other provisions of [the Estates Code], the laws and rules governing estates of decedents apply to guardianships.” Tex. Est. Code § 1001.002.
For an adult incapacitated person, the proper venue to initiate a guardianship proceeding is either (1) the county in which the proposed ward resides or is located on the date the guardianship application is filed or (2) the county in which the proposed ward’s principal estate is located. Tex. Est. Code § 1023.001(a).
The proper venue to initiate a guardianship proceeding over a minor child is (1) the county in which both the minor’s parents reside; (2) if the parents live in different counties, the county where the sole managing conservatorship parent resides or, if the parents have joint custody, the county where the parent with the greater period of physical possession of and access to the minor resides; (3) if only one parent is living and has custody, the county of that parent’s residence; (4) if both parents are dead and the minor was in the custody of the deceased parent, the county where the last surviving parent having custody resided; or (5) if both parents died in a common disaster and there is no evidence the parents died other than simultaneously, the county where both parents resided at the time of death if they resided in the same county. Tex. Est. Code § 1023.001(b).
§ 2.4Obtaining Proof of Medical Emergency or Incapacity
To create a temporary guardianship for immediate necessity, the court must determine that there is substantial evidence that the proposed ward is an incapacitated person, that there is imminent danger that the proposed ward’s health or safety will be seriously impaired, or that the proposed ward’s estate will be seriously damaged or dissipated unless immediate action is taken. Tex. Est. Code § 1251.010(a). Although a doctor’s certificate under Texas Estates Code section 1101.103 would be useful to include with the application, the substantial evidence of incapacity may come from other sources. As this is a temporary solution necessitated by emergency concerns, there is a lesser burden for medical evidence. Because of this lesser burden, a person for whom a temporary guardian is appointed may not be presumed to be incapacitated. Tex. Est. Code § 1251.002; see In re Kelm, 569 S.W.3d 232, 240 (Tex. App.—Houston [1st Dist.] 2018, no pet.).
§ 2.5Preparing and Filing Application and Order
A sworn written application for the appointment of a temporary guardian must be filed before the appointment is made. Tex. Est. Code § 1251.003(a).
On the filing of the application, the court will appoint an attorney ad litem to represent the proposed ward if independent counsel has not been retained. Tex. Est. Code § 1251.004; see also Tex. Est. Code § 1054.007(b) (attorney ad litem entitled to reasonable compensation for services rendered). An attorney ad litem is directed to discuss with the proposed ward whether alternatives to a guardianship would meet the needs of the proposed ward and avoid the need for the appointment of a guardian. Tex. Est. Code § 1054.004(4). Before any hearing, the ad litem should also discuss with the proposed ward the ad litem’s opinion regarding whether a guardianship is necessary and, if so, the ad litem’s recommendation regarding specific limitations to the guardian’s powers or duties. Tex. Est. Code § 1054.004(c).
§ 2.5:1Contents of Application
The Texas Estates Code requires the sworn application to state—
1.the name and address of the proposed ward;
2.the alleged imminent danger to the proposed ward or the proposed ward’s property;
3.the type of appointment and the particular protection and assistance being requested;
4.facts supporting the allegations and requests;
5.the name, address, and qualification of the proposed temporary guardian;
6.the name, address, and interest of the applicant; and
7.if applicable, that the proposed temporary guardian is a private professional guardian who is certified under subchapter C, chapter 155, of the Texas Government Code and has complied with the requirements of subchapter G, chapter 1104, of the Estates Code.
Tex. Est. Code § 1251.003(b). See form 2-1 in this chapter.
§ 2.5:2Scheduling Hearing on Application
The sworn application should be presented to the court promptly so that it may issue an order setting a date certain to hear the application, if it has not already done so. See Tex. Est. Code § 1251.006. A hearing on the temporary guardianship application is required; there are no longer ex parte guardianships in Texas.
The clerk must issue notice to be served on the proposed ward and the proposed ward’s appointed attorney and on the proposed temporary guardian named in the application, if that person is not the applicant. Tex. Est. Code § 1251.005.
The proposed ward must be personally served with the application and notice of hearing, and a copy of the notice must be provided to the attorney ad litem or independent counsel. See In re Guardianship of Bernsen, No. 13-19-00592-CV, 2021 WL 4467598, at *5 (Tex. App.—Corpus Christi–Edinburg Sept. 30, 2021, no pet. h.) (proposed ward need not be personally served with amended application for guardianship). If the proposed ward is not personally served with notice of the temporary guardianship proceeding until after the appointment of a temporary guardian, any such order will be considered void. Farr v. Barnes, No. 04-19-00895-CV, 2020 WL 6048770, at *3 (Tex. App.—San Antonio Oct. 14, 2020, no pet.) (when proposed ward not served with notice of temporary guardianship proceeding until after appointment of temporary guardian, trial court erred by granting appellants’ rule 91a motions to dismiss, and appellate court reversed all orders, including the award of attorney’s fees). Note, however, that even if a temporary guardian is appointed without prior notice to the proposed ward, the appointment of a temporary guardian becomes moot once a permanent guardian is appointed. 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.).
The notice must describe the rights of the parties and the date, time, place, purpose, and possible consequences of a hearing on the application and contain a statement notifying a person interested in the estate or welfare of a ward that he may file a request to be notified of filings. Tex. Est. Code § 1251.005. A copy of the application (form 2-1 in this chapter) must be attached to the notice. Tex. Est. Code § 1251.005(c).
The notice must be served on the proposed ward before a hearing is held on the application for temporary guardianship. See Tex. Est. Code § 1251.005; Farr, 2020 WL 6048770, at *3 (order appointing temporary guardian void for lack of jurisdiction because proposed ward not served before hearing).
The initial hearing appointing a temporary guardian must be held within ten days of the filing of the application unless the respondent or the respondent’s attorney consents to an extension for up to thirty days after the filing of the application. Tex. Est. Code § 1251.006. The proposed ward is entitled to prior notice of the hearing, to be present, and to be represented by an attorney. Tex. Est. Code § 1251.008. Generally, the proposed ward is represented by the attorney ad litem; however, he may also retain other counsel to represent him.
There is no right to a jury trial under a temporary guardianship. See Tex. Est. Code § 1251.010 (temporary guardian will be appointed if the “court determines that the applicant has established” the requisite grounds).
The attorney ad litem should arrange for the proposed ward to attend the hearing or be prepared to explain his nonappearance to the court. At the hearing, the burden of proof is on the person alleging the incapacity. Tex. Est. Code § 1101.101(b).
The proposed ward and his attorney have the right to present evidence, to confront and cross-examine witnesses, and to request a closed hearing. Tex. Est. Code § 1251.008. This includes, most importantly, medical evidence demonstrating the need for a temporary guardianship. However, medical evidence is not required for the appointment of a temporary guardian.
At the conclusion of the hearing, the court shall enter an order appointing a temporary guardian if it finds substantial evidence that the proposed ward is a minor or an incapacitated person, that there is imminent danger to the proposed ward’s physical health or safety, or that the proposed ward’s estate will be seriously damaged or dissipated unless immediate action is taken. Tex. Est. Code § 1251.010(a). Substantial evidence is that which reasonable minds could have viewed as supporting the finding. Southwest Texas Leasing Co. v. Bomer, 943 S.W.2d 954 (Tex. App.—Austin 1997, no writ). Only those powers necessary to protect the ward against the imminent danger shown may be granted. The reasons for the temporary guardianship and the powers and duties of the temporary guardian must be described in the order of appointment. Tex. Est. Code § 1251.010. The order creating the temporary guardianship should also clearly state the term of the guardianship (maximum of sixty days unless contested), the amount of bond required, and a direction to the clerk to issue a certificate of appointment to the person appointed after the person qualifies according to law. Tex. Est. Code §§ 1251.012, 1251.101, 1251.151. See form 2-2 in this chapter.
A temporary guardian must qualify in the same form and manner required of a permanent guardian under the Texas Estates Code. Tex. Est. Code § 1251.052(a). See section 4.16 in this manual.
§ 2.7Effect of Application for Temporary Guardianship
A person for whom a temporary guardian has been appointed retains all rights and powers not specifically granted to the temporary guardian by court order. Tex. Est. Code § 1251.001(b). The appointment of a temporary guardian is not an adjudication of incapacity. Tex. Est. Code § 1251.002.
§ 2.8Motion to Dismiss Temporary Guardianship
The proposed ward or the proposed ward’s attorney may move to dismiss the application for temporary guardianship on one day’s notice to the applicant. The court must hear and determine the motion expeditiously. Tex. Est. Code § 1251.007.
The court has the authority to remove a temporary guardian and terminate a temporary guardianship on evidence that doing so is within the ward’s best interest. In re Guardianship of Fuller, No. 06-06-00104-CV, 2007 WL 1345858, at *1 (Tex. App.—Texarkana May 9, 2007, no pet.), citing Douglas v. Proctor, 559 S.W.2d 912, 913 (Tex. App.—Waco 1977, no writ).
§ 2.9Duration of Temporary Guardianship
A temporary guardianship for immediate necessity may not remain in effect for more than sixty days unless a temporary guardian is appointed pending a contest on the application. Tex. Est. Code §§ 1251.051, 1251.151. See also In re Guardianship of Berry, 105 S.W.3d 665, 666 (Tex. App.—Beaumont 2003, no pet.) (temporary guardian appointment moot once permanent guardian appointed); Tex. Est. Code § 1251.153(a) (court will order temporary guardian to deliver estate to person legally entitled to possess guardianship estate). See forms 2-3 and 2-4 in this chapter.
A temporary guardianship pending contest (see section 2.13 below) expires at the conclusion of the hearing contesting the application, on the date a permanent guardian qualifies, or on the nine-month anniversary of the date the temporary guardian qualifies, unless the term is extended by court order after a motion and hearing. Tex. Est. Code § 1251.052(b).
At the expiration of a temporary guardianship—whether contested or not—the temporary guardian must file a sworn account with the court. The final report must list all the property that has come into the temporary guardian’s possession or control and any sales of the property and must include a full exhibit and account of his acts as temporary guardian. Tex. Est. Code § 1251.152. Generally, the account should be in the same form and contain the same information as the final account of a permanent guardian, limited by the scope of the temporary guardian’s authority. See Tex. Est. Code § 1204.102. See forms 2-7 through 2-9 in this chapter.
After reviewing the account and exhibits, the court will order the temporary guardian to deliver the remaining property in the guardianship to the person or entity legally entitled to take possession of the estate assets. Tex. Est. Code § 1251.153. See form 2-10. Once the court approves the final account, the temporary guardian may be discharged and the sureties released, upon proof of proper delivery of the estate assets, as provided in the order of discharge. Tex. Est. Code §§ 1251.152, 1251.153.
A temporary guardian is entitled to payment of attorney’s fees from the ward’s estate. Tex. Est. Code § 1251.013; see also Tex. Est. Code § 1002.010. Notably, this applies to a living ward as well as one who died during the pendency of a guardianship proceeding. McIntyre v. McIntyre, No. 14-18-00609-CV, 2019 WL 4511323, at *2 (Tex. App.—Houston [14th Dist.] Sept. 19, 2019, no pet.) (mem. op) (because individual was a ward, court could award attorney’s fees to temporary guardian from “available funds of [ward’s] property although [ward] was deceased”).
On entry of the order approving the account and directing delivery of the assets of the temporary guardianship, the guardian should arrange for delivery of the assets to the person legally entitled to possess them. If possible, the guardian should request a signed receipt. See form 2-15 in this chapter. However, some courts will order delivery of the assets to the permanent guardian before the filing and approval of the final account.
After delivery, an application to discharge the temporary guardian and release the bond should be filed with the court. See form 2-11. The signed receipt or other evidence of delivery of estate assets should be attached as an exhibit. The court will review the application and, if it determines that the temporary guardian has complied with the court’s prior order, enter an order discharging the temporary guardian and releasing the bond. See form 2-12 and section 14.2:4 in this manual.
§ 2.13Temporary Guardianship Pending Contest
A second type of temporary guardianship is the temporary guardianship pending contest. If an application for a temporary guardianship, for the conversion of a temporary guardianship to a permanent guardianship, or for a permanent guardianship is contested, the court, on its own motion or on that of any interested party, may appoint a temporary guardian without issuing additional citation if it finds the appointment necessary to protect the proposed ward or the proposed ward’s estate. Tex. Est. Code § 1251.051. See forms 2-3 and 2-4 in this chapter.
A temporary guardianship pending contest continues until the contest is concluded or the nine-month anniversary of the temporary guardian’s qualification, whichever is earlier. The temporary guardianship pending contest may be extended past the nine-month anniversary by court order after a hearing on a filed motion to extend the term. Tex. Est. Code § 1251.052(b).
[Sections 2.14 through 2.20 are reserved for expansion.]
§ 2.21Temporary Restraining Order; Temporary Injunction
The primary purpose of injunctive relief is to halt wrongful acts, which is at the very core of probate and trust litigation. The specific purpose of a temporary injunction is to preserve the status quo of the subject matter of the litigation until a final hearing can be held on the merits of the case. In re Newton, 146 S.W.3d 648, 651 (Tex. 2004); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). The status quo is defined as “the last actual, peaceable, noncontested status which preceded the pending controversy.” RP&R, Inc. v. Territo, 32 S.W.3d 396, 402 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
Injunctive relief works to fulfill the equitable maxim that “no right shall be left without a remedy.” See Kuechler v. Wright, 40 Tex. 600, 637 (1874). Its purpose is to “halt wrongful acts that are either threatened or in the course of accomplishment.” Wiese v. Heathlake Community Ass’n, 384 S.W.3d 395, 399 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
The Texas Supreme Court has explained that a temporary injunction is an extraordinary remedy, which should not issue as a matter of right. Walling v. Metcalfe, 863 S.W.2d 56, 57–58 (Tex. 1993). It is, nonetheless, an underused remedy in many probate proceedings that can be used to impede a pattern of bad behavior.
In most cases, a request for injunctive relief begins with a request for a temporary restraining order, which is then followed by a request for a temporary injunction. Thereafter, any request for permanent injunctive relief can generally be awarded in a final judgment entered in the case.
§ 2.22Hearing and Issuance of Order
A temporary restraining order can be entered with or without notice to the opposing party or counsel. A temporary injunction is entered after a full evidentiary hearing. A temporary restraining order or temporary injunction is not effective unless and until the applicant posts either a surety bond or cash in lieu of a surety bond.
Whether to grant or deny a temporary injunction is within the trial court’s sound discretion. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). A reviewing court should reverse an order granting injunctive relief only if the trial court abused that discretion. Walling, 863 S.W.2d at 58. A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law, Ford Motor Co. v. Castillo, 279 S.W.3d 656, 661 (Tex. 2009), or when it acts without reference to any guiding rules or principles, Cires v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). In conducting an abuse-of-discretion review, the reviewing court must consider the whole record. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996). The reviewing court must not substitute its judgment for the trial court’s judgment unless the trial court’s action was so arbitrary that it exceeded the bounds of reasonable discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).
A temporary restraining order aims to prevent irreparable harm for fourteen days until the court may conduct a hearing on the motion for temporary injunction. See In re Texas Natural Resource Conservation Commission, 85 S.W.3d 201, 205 (Tex. 2002).
A temporary restraining order can last for up to twenty-eight days if, and only if, within the original fourteen-day period of the temporary restraining order, (1) the court, for good cause shown, extends the temporary restraining order for a similar “like period” or (2) the party against whom the temporary restraining order was granted consents to the extension of the order. Tex. R. Civ. P. 680. “Good cause shown” has been held to include issues in effectuating service on the defendant and needing additional time to gather evidence required for use at the temporary injunction hearing. Only one extension can be granted unless additional extensions are unopposed by the enjoined party.
A temporary injunction, once entered, is in effect until final trial on the merits of the case.
§ 2.25Injunctive Relief under Texas Estates Code and Texas Property Code
There are three primary sources of authority for injunctive relief: the Texas Rules of Civil Procedure, the Texas Civil Practice and Remedies Code, and other “remedial” statutes. See Tex. R. Civ. P. 680; Tex. Civ. Prac. & Rem. Code § 65.011. This section focuses solely on the probate court’s authority and direction, pursuant to the Texas Estates Code and Texas Property Code, to issue injunctions to preserve the assets of an estate and to prevent potential dissipation of those assets.
To obtain injunctive relief and preserve the status quo until a final hearing can be held on the merits of the case, a party must ordinarily show (1) the existence of a wrongful act, (2) the existence of imminent harm, (3) the existence of irreparable injury, and (4) the absence of an adequate remedy at law. Jim Rutherford Investments, Inc. v. Terramar Beach Community Ass’n, 25 S.W.3d 845, 849 (Tex. App.—Houston [14th Dist.] 2000, pet. denied); see Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204–05 (Tex. 2002).
There are two general types of injunctive relief: prohibitory and mandatory. RP&R, Inc. v. Territo, 32 S.W.3d 396, 400 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Prohibitory injunctions prohibit a party from continuing a certain conduct, while mandatory injunctions require another party to act affirmatively rather than refrain from certain conduct. RP&R, Inc., 32 S.W.3d at 400. Most temporary injunctions issued in probate proceedings are prohibitive.
An application for temporary restraining order or temporary injunction must include the following required elements.
A cause of action is defined in the injunctive context as a “factual situation that entitles one person to obtain a remedy in court from another person.” Seghers v. Kormanik, No. 03-13-00104-CV, 2013 WL 3336845, at *4 (Tex. App.—Austin June 26, 2013, no pet.) (mem. op.). In the probate context, the most common causes of action pleaded in support of seeking injunctive relief are breach of fiduciary duty, misrepresentation, conversion, and fraud. A claim under the Uniform Declaratory Judgments Act to request a court to “declare [the] rights, status, and other legal relations” of the parties is also similarly used to support the request for temporary injunctive relief in the probate context. See Tex. Civ. Prac. & Rem. Code § 37.003(a). Simply stated, the applicant must have a valid cause of action against the party seeking to be enjoined.
§ 2.26:2Probable Right of Recovery
Probate courts possess clear authority and jurisdiction to protect both the named assets of a trust and the probable assets of a trust. The Texas Supreme Court has evaluated the charge given to probate courts in Texas and found that the courts possess the authority and direction to issue injunctions to preserve the assets of an estate and to prevent potential dissipation of those assets.
In Lucik v. Taylor, the supreme court held:
Here, as in English v. Cobb, the protection from dissipation or transfer of the potential assets of the estate of Lucik directly bears on the ultimate collection and distribution of such properties pursuant to his effective will. As such, the injunctive relief related to a matter “incident to an estate” and was within the injunctive powers of the Probate Court of Dallas County.
Lucik v. Taylor, 596 S.W.2d 514, 516 (Tex. 1980) (emphasis added). See also Smith v. Lanier, 998 S.W.2d 324, 336 (Tex. App.—Austin 1999, pet. denied) (“A court has the inherent power to order the surrender of property held by any party to the suit. This inherent power enables the court to preserve its own ability to render effective relief and give effect to its judgment.”) (internal citations omitted).
A probable right of recovery may be proved by an allegation of the existence of a right and presenting evidence tending to show that the right is being denied. An applicant is not required to establish that he will prevail upon final trial, as the only question before the court in a temporary injunction setting is whether the applicant is entitled to the preservation of the status quo, pending a final trial on the merits.
As such, the proper question to ask to determine the probable right of recovery is whether the party seeking injunctive relief is entitled to status quo pending final trial. Walling v. Metcalfe, 863 S.W.2d 56, 57–58 (Tex. 1993).
§ 2.26:3Probable, Imminent Injury
An applicant’s burden of proof regarding the injury is whether the purported harm is likely to recur in the near future. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002). This burden is required to fulfill the clear purpose of injunctive relief: to halt wrongful acts in the course of accomplishment. See Wiese v. Heathlake Community Ass’n, 384 S.W.3d 395, 399 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
§ 2.26:4Irreparable Injury: No Adequate Remedy at Law
The general burden of proof is to show that there is no adequate remedy at law for the injured applicant’s damages; “in other words, that it cannot be adequately compensated in damages . . . or the damages cannot be measured by any certain pecuniary standard.” Twyman v. Twyman, No. 01-08-00904-CV, 2009 WL 2050979, at *4 (Tex. App.—Houston [1st Dist.] July 16, 2009, no pet.).
However, Texas courts are split about whether, in a fiduciary case, an inadequate remedy at law must be proved to obtain injunctive relief, because equitable remedies (that is, injunctive relief) are available in cases involving breach of fiduciary duty, but so are legal remedies (that is, money damages). As such, there is a strong argument that, as long as the fiduciary relationship is ongoing, a beneficiary should be entitled to the correct performance of the relationship. See, e.g., 183/620 Group Joint Venture v. SPF Joint Venture, 765 S.W.2d 901, 903–04 (Tex. App.—Austin 1989, writ dism’d w.o.j.).
As is common in all areas of the law, there are exceptions to showing that there is no adequate remedy at law. Specifically, when injunctive relief is sought under Texas Property Code section 114.008, there are exceptions to this element. See Twyman, 2009 WL 2050979, at *5 (trustee’s past behavior justified temporary injunction because “allowing [the trustee] continued access to the Trust funds could lead to more withdrawals that would not be repaid” and because the trust would not be protected from “loss for additional amounts [the trustee] would be able to withdraw if a temporary injunction were not granted”). It is well established that a court can grant temporary injunctive relief to stop the depletion of trust assets. See Minexa Arizona v. Staubach, 667 S.W.2d 563, 567–68 (Tex. App.—Dallas 1984, no writ) (holding “[t]he fact that damages may be subject to the most precise calculation becomes irrelevant if the defendants in a case are permitted to dissipate funds specific that would otherwise be available to pay a judgment” when “[s]ome of these funds have allegedly been dissipated by the fiduciaries holding them, while the fiduciaries are seeking to place the remaining funds beyond the jurisdiction of the Texas court”); Gatlin v. GXG, Inc., No. 05-93-01852-CV, 1994 WL 137233, at *7 (Tex. App.—Dallas Apr. 19, 1994, no writ) (not designated for publication) (evidence was “sufficient to justify the trial court’s conclusion that, if not restrained, Gatlin might continue to divert and conceal assets in his possession pending trial”); Callahan v. Lipscomb, 412 S.W.2d 346, 348 (Tex. App.—San Antonio 1967, writ ref’d n.r.e.) (“There is also evidence that appellants are authorized to write checks and draw on the bank account of Pobrecito, Inc., which withdrawals could cause loss and injury to the ultimate beneficiaries of the estate of Mae H. Hausman in the event that it is finally determined that such estate has property rights and interests in Pobrecito.”).
The first exception is for actions that are recurrent or continuous. Sinclair Refining Co. v. McElree, 52 S.W.2d 679, 681–82 (Tex. App.—Dallas 1932, no writ) (neither at equity nor under the statute did appellee’s right to injunctive relief depend on a showing that there existed no adequate remedy at law). The Dallas court of appeals explained, as follows:
The doctrine even under principles of equity, uninfluenced by statutory enactment, is stated in 32 C.J. § 36, p. 56, as follows: “As a general rule, where an injury committed by one against another is continuous or is being constantly repeated, so that complainant’s remedy at law requires the bringing of successive actions, that remedy is inadequate and the injury will be prevented by injunction. The fact that an injured person has the right of successive actions for the continuance of the wrong does not make it an adequate remedy at law which bars the jurisdiction of a court of equity to grant an injunction to restrain the continuance of the injury.”
Sinclair Refining Co., 52 S.W.2d at 681.
Another exception to showing that there is “no adequate remedy at law” is if such damages are unique and cannot be replaced using traditional money damages. See Patrick v. Thomas, No. 2-07-339-CV, 2008 WL 1932104, at *2 (Tex. App.—Fort Worth May 1, 2008, no pet.) (enjoining sale of rare horses), citing 103 Harv. L. Rev. 687, 705–06 (1990) (stating that if certain goods cannot be replaced by money, then money damages are not adequate remedy for their loss and harm to them may be considered irreparable); Trickey v. Gumm, 632 S.W.2d 167 (Tex. App.—Waco 1982, no writ) (one element to consider in determining question of irreparable injury is whether there may be loss of substantial equity in property); Texas Industrial Gas v. Phoenix Metallurgical Corp., 828 S.W.2d 529, 533 (Tex. App.—Houston [1st Dist.] 1992, no writ) (inability to respond in damages).
§ 2.27Injunctive Relief under Texas Rules of Civil Procedure
Rules 680 through 693 of the Texas Rules of Civil Procedure generally govern the requirements to obtain injunctive relief. These rules should be reviewed together, as they are interrelated to the process required to obtain injunctive relief and must be complied with when seeking injunctive relief in the probate context.
Rule 693 emphasizes the applicability of injunctive relief in fiduciary litigation. Specifically, rule 693 states that the principles, practice, and procedure governing courts of equity shall govern proceedings in injunctions when the same are not in conflict with the rules or the provisions of the statutes. Tex. R. Civ. P. 693. Because fiduciary duties are equitable in nature, it follows that equitable remedies, such as injunctive relief, are available for breaches of fiduciary duty.
Rules 680 and 683 address the specific requirements for issuance of a temporary restraining order. These include, but are not limited to, a specific pleading, supported by affidavit or verified petition, that defines the injury and demonstrates that the applicant will suffer immediate, irreparable harm before the other party can be provided notice and before a hearing can be conducted. Rule 683 reinforces that an injunctive order (whether a temporary restraining order or temporary injunction) is binding only on the parties to the action, their officers, agents, servants, employees, and attorneys, and on those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. See Ex parte Jackman, 663 S.W.2d 520, 523 (Tex. App.—Dallas 1983, no writ) (oral notification by applicant’s attorney to enjoined party of injunction contents satisfied requirements of rule 683).
The actual temporary restraining order must—
1.include the date and hour signed;
2.state a specifically defined injury and why it was irreparable and why the order was issued ex parte;
3.state that it expires on a date not to exceed fourteen days, unless otherwise extended for a maximum of twenty-eight days, as discussed above; and
4.state the date and time for the temporary injunction hearing.
Rule 684 addresses the requirement to post a personal surety bond. In lieu of a surety bond, a party may instead deposit cash. Tex. R. Civ. P. 14c; Adobe Oilfield Services, Ltd. v. Trilogy Operating, Inc., 305 S.W.3d 402, 404 (Tex. App.—Eastland 2010, no pet.).
§ 2.27:3Citation and Writ of Injunction
Rules 686 through 689 address the issuance of the required citations and writs of injunction. Under rule 686, when the request for injunctive relief is included in a new lawsuit, the clerk of the court issues a citation—as in all civil cases—which shall be served and returned in the same manner as ordinary citations. Tex. R. Civ. P. 686. But when an applicant obtains a temporary restraining order in conjunction with filing the new lawsuit, only one citation is needed when the temporary restraining order and underlying lawsuit are served together. Tex. R. Civ. P. 686. Rule 687 details the requirements of a “writ of injunction,” which is prepared by the court clerk. A writ of injunction mimics the contents of the order (temporary restraining order or temporary injunction) signed by the judge, except for the court’s findings justifying issuance of the injunction. Rule 689 addresses service of a writ of injunction.
Rule 692 includes the enforcement mechanism for injunctions and provides that disobedience of an injunction is punishable as contempt. A court has the ability to issue a writ of attachment or show-cause order in the case of disobedience.
§ 2.28Injunctive Relief under Texas Civil Practice and Remedies Code
Sections 65.001 through 65.045 of the Texas Civil Practice and Remedies Code set forth the general statutory authority for trial courts to grant injunctive relief. Section 65.011 authorizes the issuance of a writ of injunction if—
(1)the applicant is entitled to the relief demanded and all or part of the relief requires the restraint of some act prejudicial to the applicant;
(2)a party performs or is about to perform or is procuring or is allowing the performance of an act relating to the subject of pending litigation, in violation of the rights of the applicant, and the act would tend to render the judgment in that litigation ineffectual;
(3)the applicant is entitled to a writ of injunction under the principles of equity and the statutes of this state relating to injunctions;
(4)a cloud would be placed on the title of real property being sold under an execution against a party having no interest in the real property subject to execution at the time of sale, irrespective of any remedy at law; or
(5)irreparable injury to real or personal property is threatened, irrespective of any remedy at law.
Tex. Civ. Prac. & Rem. Code § 65.011; see Guillermo Benavides Garza Investment Co. v. Benavides, No. 04-13-00453-CV, 2014 WL 3339555, at *2 (Tex. App.—San Antonio July 9, 2014, no pet.) (mem. op.).
Additionally, section 37.005 of the Civil Practice and Remedies Code permits an interested person to request the court to direct the administrators, executors, or trustees to do or abstain from doing any particular act in their fiduciary capacity. Tex. Civ. Prac. & Rem. Code § 37.005.
[Sections 2.29 and 2.30 are reserved for expansion.]
III. Mental-Health Commitments
§ 2.31Mental-Health Commitments
Mental-health commitments are covered under the Texas Health and Safety Code and not the Texas Estates Code. The commitment and hospitalization of clients or attorneys suffering from mental illness in Texas is civil and not criminal in nature.
In general, individuals who are a danger to themselves or others, who cannot take care of themselves properly, or who are off of their medication are good candidates for mental-health commitments. For additional discussion of mental-health issues and commitments, see chapter 16 in this manual.
The term mental illness is defined as an illness, disease, or condition that either (1) substantially impairs a person’s thought, perception of reality, emotional process, or judgment or (2) grossly impairs behavior as demonstrated by recent disturbed behavior. This definition does not include a person suffering from epilepsy, dementia, substance abuse, or intellectual disability. Tex. Health & Safety Code § 571.003(14). However, a person who suffers from a mental illness along with another condition is still subject to commitment under the Code.
The term mental health facility is defined as—
1.an inpatient or outpatient mental health facility operated by the Texas Department of State Health Services (DSHS), a federal agency, a political subdivision, or any person;
2.a community center or a facility operated by or under contract with a community center;
3.part of a general hospital in which diagnosis, treatment, and care for persons with mental illness is provided; or
4.another entity designated by DSHS to provide mental-health services.
Tex. Health & Safety Code § 571.003(12); see Tex. Health & Safety Code § 571.003(9).
The commitment process must be broken down into three parts so that it can be better understood: (1) emergency detention, (2) protective custody, and (3) commitment. Each part in the process serves the purpose of protecting a person who constitutes a danger to himself or others.
§ 2.33:1Emergency Detention without Warrant (Peace Officer)—Section 573.001
A warrantless detention is the preferred method of emergency detention because of the very nature of a situation requiring such intervention. The Texas Health and Safety Code requires an officer to have sufficient reason to believe (1) that a person is mentally ill, (2) that because of such illness, a substantial risk of harm to himself or others exists unless immediate restraint is employed, and (3) that there is not sufficient time to obtain a warrant before taking the person into custody. Tex. Health & Safety Code § 571.001(a). If an officer encounters a person who truly meets the criteria for emergency detention, there should never be time to secure a warrant. A peace officer without a warrant may take into custody any such person suffering from mental illness, may transport the person to the nearest appropriate inpatient mental-health facility—or a mental-health facility deemed suitable by the local mental-health authority if an appropriate inpatient mental-health facility is not available—and may immediately file an application with the facility for the person’s detention. Tex. Health & Safety Code §§ 571.001(d), 573.002. No detention is permitted in a private facility without the consent of the head of the facility. Tex. Health & Safety Code § 573.021(e).
§ 2.33:2Emergency Detention with Warrant—Section 573.011
Any adult may file an application for the emergency detention of another person. Tex. Health & Safety Code § 571.011. If the application is granted, a warrant is issued. However, before issuance of an emergency warrant is approved, there must be adequate and credible information presented so that a reasonable decision may be formulated to protect the rights of the individual against the rights of society in general. The determination of what may be adequate and credible information is very difficult and can be accomplished only on a case-by-case basis. The sole purpose of the issuance of such warrants is to protect the individual or others when a substantial imminent risk of serious harm exists and immediate intervention or restraint is necessary to prevent injury. Thus, both the facts that form the basis for the requested warrant and the person who furnished these facts must play a key role in the decision-making process. Therefore, the court can require the applicant to appear and be examined in order to attest to the adequacy and credibility of the information furnished.
The applicant must have reason to believe and must believe all four of the following: (1) the person evidences mental illness, (2) there exists a substantial risk of serious harm to himself or others, (3) such risk of harm is imminent unless the person is restrained, and (4) such belief is based on specific recent behavior, overt acts, attempts, or threats. In the application, the applicant must state and describe the following in detail: (1) the basis for the risk of harm; (2) the behavior, acts, attempts, or threats that form the basis of the applicant’s belief; and (3) the relationship of the applicant to the individual. Any other available relevant information may accompany the application. Tex. Health & Safety Code § 573.011.
The application for court-ordered mental-health services is filed before or with the motion for an order of protective custody. The hearing on the application for court-ordered mental-health services is commonly referred to as the “final hearing.” The hearing on the motion for an order of protective custody is commonly referred to as the “probable cause” hearing.
Preliminary Examination: A person accepted for a preliminary examination may be detained in custody for not longer than forty-eight hours after the time the person is presented to the facility unless a written order for protective custody is obtained. The forty-eight-hour period includes any time the patient spends waiting in the facility for medical care before the person receives the preliminary examination. A physician shall examine the person as soon as possible within twelve hours after the time the person is apprehended by the peace officer or transported for emergency detention by the person’s guardian. Tex. Health & Safety Code § 573.021(b), (c).
Emergency Admission and Detention: A person may be admitted to a facility for emergency detention only if the physician who conducted the preliminary examination of the person makes a written statement that is acceptable to the facility and states that after a preliminary examination it is the physician’s opinion that (1) the person is a person with mental illness, (2) the person evidences a substantial risk of serious harm to the person or to others, (3) the described risk of harm is imminent unless the person is immediately restrained, and (4) emergency detention is the least restrictive means by which the necessary restraint may be accomplished. The written statement must include a description of the nature of the person’s mental illness and a specific description of the risk of harm the person evidences that may be demonstrated either by the person’s behavior or by evidence of severe emotional distress and deterioration in the person’s mental condition to the extent that the person cannot remain at liberty. The statement must also set out the specific detailed information from which the physician formed the opinion. Tex. Health & Safety Code § 573.022(a).
Motion and Order for Protective Custody: A motion for an order of protective custody, commonly referred to as an “OPC,” may be filed only in the court in which an application for court-ordered mental-health services is pending. The motion may be filed by the county or district attorney or on the court’s own motion. The motion must state that the judge or county or district attorney has reason to believe and does believe that the proposed patient meets the criteria authorizing the court to order protective custody and the belief is derived from (1) the representations of a credible person, (2) the proposed patient’s conduct, or (3) the circumstances under which the proposed patient is found. The motion must be accompanied by a certificate of medical examination for mental health prepared by a physician who has examined the proposed patient not earlier than the third day before the day the motion is filed. Tex. Tex. Health & Safety Code § 574.021.
The judge or designated magistrate may issue an order of protective custody if the judge or magistrate determines that a physician has stated the physician’s opinion and the detailed reasons for the physician’s opinion that the proposed patient is a person with mental illness and the proposed patient presents a substantial risk of serious harm to the proposed patient or others if not immediately restrained pending the hearing. The determination that the proposed patient presents a substantial risk of serious harm may be demonstrated by the proposed patient’s behavior or by evidence of severe emotional distress and deterioration in the proposed patient’s mental condition to the extent that the proposed patient cannot remain at liberty. Tex. Health & Safety Code § 574.022(a), (b).
When a protective custody order is signed, the judge or designated magistrate shall appoint an attorney to represent a proposed patient who does not have an attorney. Tex. Health & Safety Code § 574.024(a).
Probable Cause Hearing: A hearing must be held to determine if there is probable cause to believe that a proposed patient under a protective custody order presents a substantial risk of serious harm to the proposed patient or others to the extent that the proposed patient cannot be at liberty pending the hearing on court-ordered mental-health services and a physician has stated the physician’s opinion and the detailed reasons for the physician’s opinion that the proposed patient is a person with mental illness. Tex. Health & Safety Code § 574.025(a).
The hearing must be held not later than seventy-two hours after the time that the proposed patient was detained under a protective custody order. Tex. Health & Safety Code § 574.025(b).
Continued Detention or Release: The magistrate or associate judge shall order that a proposed patient remain in protective custody if the magistrate or associate judge determines after the hearing that an adequate factual basis exists for probable cause to believe that the proposed patient presents a substantial risk of serious harm to himself or others to the extent that he cannot remain at liberty pending the hearing on court-ordered mental-health services. Tex. Health & Safety Code § 574.026(a). The magistrate or associate judge shall order the release of a person under a protective custody order if the magistrate or associate judge determines after the probable cause hearing that no probable cause exists to believe that the proposed patient presents a substantial risk of serious harm to himself or others. Tex. Health & Safety Code § 574.028(a), (b). If certain requirements are not met, the facility administrator shall discharge the proposed patient. Tex. Health & Safety Code § 574.028.
Release after Hearing: The court shall enter an order denying an application for court-ordered temporary or extended mental-health services if after a hearing the court or jury fails to find, from clear and convincing evidence, that the proposed patient is mentally ill and meets the applicable criteria for court-ordered mental-health services.
If the court denies the application, the court shall order the immediate release of a proposed patient who is not at liberty. Tex. Health & Safety Code § 574.033.
§ 2.33:4Involuntary Commitment
Under Texas Health and Safety Code sections 574.034(a) and 574.035(a), the necessary elements for involuntary inpatient commitment are that the proposed patient is mentally ill, and as a result—
1.is likely to cause serious harm to himself;
2.is likely to cause serious harm to others; or
3.the proposed patient—
a.is suffering severe and abnormal mental, emotional, or physical distress;
b.is experiencing substantial mental or physical deterioration of the ability to function independently, which is exhibited by the inability, except for reasons of indigence, to provide for basic needs, including food, clothing, health, or safety; and
c.is unable to make a rational and informed decision about whether to submit to treatment.
Tex. Health & Safety Code § 574.034(a). To receive extended inpatient services, it must also be shown that the proposed patient’s condition is expected to continue for more than ninety days and the patient has received court-ordered inpatient mental-health services for at least sixty consecutive days during the preceding twelve months. Tex. Health & Safety Code § 574.035(a)(3), (a)(4).
§ 2.34Evidentiary Standard for Involuntary Commitment
The burden of proof shall be to prove each element of the applicable criterion by clear and convincing evidence. Tex. Health & Safety Code §§ 574.034(a), 574.035(a); see Addington v. Texas, 441 U.S. 418 (1979). “Clear and convincing evidence” is defined as that measure of proof that produces a firm belief or conviction in the mind of the fact finder as to the truth of the allegations sought to be established. State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979). Clear and convincing evidence is an intermediate evidentiary standard that requires more than a preponderance of the evidence but less than a reasonable-doubt standard. Addington, 588 S.W.2d at 570. It is the state’s burden to meet the elements for commitment. In re J.S.C., 812 S.W.2d 92, 94 (Tex. App.—San Antonio 1991, no writ). The state defends the commitment and its validity.
The clear and convincing evidence necessary for an order for inpatient mental-health services must include expert testimony and evidence of a recent overt act or a continuing pattern of behavior that tends to confirm either (1) the likelihood of serious harm to the proposed patient or others or (2) the proposed patient’s distress and the deterioration of ability to function. Tex. Health & Safety Code §§ 574.034(d), 574.035(e); In re Breeden, 4 S.W.3d 782 (Tex. App.—San Antonio 1999, no pet.). In a hearing for temporary inpatient mental-health services, the evidence of the recent overt act or continuing pattern of behavior may be waived. Tex. Health & Safety Code § 574.034(d).
§ 2.35Voluntary Admission of Adults—Section 572.001
Any individual eighteen years of age or older may request to be admitted on a voluntary basis to an inpatient mental facility. Guardians of adults have no authority to voluntarily admit a person to an inpatient psychiatric facility. Once a person has been voluntarily admitted, no application for court-ordered mental-health services may be filed unless a written request for release has been filed with the head of the facility or it is determined that the individual meets the criteria for court-ordered services and (1) is absent without authorization or (2) refuses or is unable to consent to appropriate treatment. Tex. Health & Safety Code § 572.005. Should a voluntary patient request to leave the facility, he may still be detained in the facility for a short period before the release.
The amount of time a voluntary patient may be detained after request to leave is limited. See Tex. Health & Safety Code § 572.004. Within four hours of the patient’s request for discharge, the facility must notify the responsible physician. Tex. Health & Safety Code § 572.004(b). If the physician has a reasonable cause to believe that the patient might meet the criteria for court-ordered mental-health services or emergency detention, the physician must examine the patient within twenty-four hours of the patient’s filed request for discharge. Tex. Health & Safety Code § 572.004(d). If the physician believes that the patient meets the criteria for detention, the physician should either discharge the patient or file an application for court-ordered mental-health services or emergency detention no later than 4:00 p.m. on the succeeding business day after the examination. Tex. Health & Safety Code § 572.004(d).
§ 2.36Application for Forced Medication—Section 574.104
A physician may file an application for an order to authorize the administration of a psychoactive medication regardless of the patient’s refusal if—
1.the physician believes that the patient lacks the capacity to make a decision regarding the administration of the psychoactive mediation;
2.the physician determines that the medication is the proper course of treatment for the patient;
3.the patient is under an order for mental-health services; and
4.the patient verbally or by other indication refuses to take the medication voluntarily.
Tex. Health & Safety Code § 574.104(a).
The application must state—
1.that the physician believes that the patient lacks the capacity to make a decision regarding administration of the psychoactive medication and the reasons for that belief;
2.each medication the physician wants the court to compel the patient to take;
3.whether an application for court-ordered mental-health services under section 574.034, 574.0345, 574.035, or 574.0355 has been filed;
4.whether a court order for inpatient mental-health services for the patient has been issued and, if so, under what authority it was issued;
5.the physician’s diagnosis of the patient; and
6.the proposed method for administering the medication and, if the method is not customary, an explanation justifying the departure from the customary methods.
Tex. Health & Safety Code § 574.104(b).
§ 2.37Hearing on Application for Forced Medication
A hearing on an application for an order to authorize the administration of a psychoactive medication may be held on the same date as the application or not later than thirty days after the filing of the application. Tex. Health & Safety Code § 574.104(d).
The court may grant one continuance on a party’s motion for good cause shown. The court may grant more than one continuance only with the agreement of the parties.