Gilbert v. HISD (Tex.App.- Houston [1st Dist.] Sep. 24, 2009)(Massengale)
(pro se appeal, suing or defending suit as next friend of incompetent person, standing to bring appeal,
tax lien foreclosure)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Massengale
Before Chief Justice Radack, Justices Bland and Massengale
01-06-00159-CV Matt Gilbert v. Houston Independent School District
Appeal from 270th District Court of Harris County
Trial Court Judge: Hon. Brent Gamble
James M. (Matt) Gilbert, a pro se litigant, appeals the trial court’s judgment imposing a tax lien against his
house and granting permission for the taxing authorities to sell the property to satisfy the tax delinquency.
Matt brings eight issues. In five issues, Matt complains about procedural issues relating to his sister’s
disclaimer of interest in the property. Matt also complains that he did not receive notice of the trial date, that
the taxing authorities’ trial attorney commented negatively to him, and that the valuation process was unfair as
to his property.
Appellee Houston Independent School District filed this lawsuit to recover delinquent property taxes dating
from 1987. Other taxing authorities, including appellees Harris County, the City of Houston, and the Houston
Community College System, later joined the suit as additional plaintiffs.
The property subject to the tax liability at issue is an improved lot in Harris County that had been owned by
John E. Gilbert and Mary V. Gilbert. Both John and Mary Footnote died intestate. The taxing authorities filed
this in rem suit in 2001, and the court appointed an attorney ad litem to identify John and Mary’s heirs. Five
heirs were identified, including Matt and his sister Mary Gilbert McAdams. The heirs were joined as defendants
and served with process. Only Matt, who had lived since 1985 in a house on the property at issue, claimed an
interest in the property.
During the time Matt lived in the house, property taxes went unpaid for significant periods of time. At the
time of trial, delinquent taxes were owed:
• to the Houston Independent School District for tax years 1990 through 2004;
• to Harris County for tax years 1988 through 2004;
• to the City of Houston for tax years 1987 through 2004; and
• to the Houston Community College System for tax years 1987 through 2004.
Although Matt filed a written answer and appeared in court, he did not appear for the trial on January 24,
2006. A notice of trial setting for that date includes Matt on the certificate of service, but the U.S. Postal
Service returned the service copy to the taxing authorities’ counsel, marked “unclaimed.”
After a bench trial to a tax master, the trial court rendered judgment in favor of the taxing authorities,
permitting them to sell the house to satisfy their tax liens and charging Matt with interest, fees, and court costs.
Pro Se Representation
Matt represented himself in the trial court, and he also appears before this Court pro se. Although we
liberally construe pro se pleadings and briefs, we nonetheless require pro se litigants to comply with
applicable laws and rules of procedure. See Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (“pro se
litigants are not exempt from the rules of procedure”); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85
(Tex. 1978). “Having two sets of rules—a strict set for attorneys and a lenient set for pro se parties—might
encourage litigants to discard their valuable right to the advice and assistance of counsel.” Wheeler, 157 S.W.
3d at 444. “Litigants who represent themselves must comply with the applicable procedural rules, or else they
would be given an unfair advantage over litigants represented by counsel.” Mansfield State Bank, 573 S.W.2d
at 185; see also Stein v. Lewisville Indep. Sch. Dist., 481 S.W.2d 436, 439 (Tex. Civ. App.—Fort Worth 1972,
writ ref’d n.r.e.) (holding that pro se defendants in tax foreclosure are bound by rules of procedure).
Construing his briefing liberally, the issues Matt presents lack substantive merit.
Competency of Mary Gilbert McAdams
In five issues, Matt argues that his sister Mary McAdams is legally incompetent and that she was not
properly represented by the attorney ad litem, who was appointed to identify the then-unknown heirs of John
and Mary Gilbert. Footnote The issues lack merit because Matt lacks standing to assert these issues for his
own benefit, and he lacks the legal capacity to assert these issues on behalf of his sister.
Generally, only parties of record have standing to appeal. See Cont’l Cas. Co. v. Huizar, 740 S.W.2d 429,
430 (Tex. 1987). Standing requires that the parties have a real controversy which can actually be determined
by the relief sought. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). In other
words, a person has standing to appeal when he is personally aggrieved by the alleged wrong. Nootsie, Ltd. v.
Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). As a party to the judgment, Matt has
standing to appeal. However, Matt is not personally aggrieved by the alleged wrong identified in his first five
issues on appeal, i.e., that Mary did not understand the proceedings. Therefore, we hold that Matt lacks
standing to complain on his own behalf of alleged violations of Mary’s procedural rights. See Goffney v.
Houston Indep. Sch. Dist., No. 01-08-00063-CV, 2009 WL 2343250, *3–4 (Tex. App.—Houston [1st Dist.] July
30, 2009, no pet.) (mem. op.) (holding that appellant lacked standing on appeal to challenge alleged
procedural due process violations against third party).
Representation of Another
Moreover, Matt is not authorized to contest the judgment directly on behalf of his adult sister. In his brief,
One of the defendants, and heir to the estate, my sister, Mary E. Gilbert is mentally retarded and under the
definition of non sui juris lacks the requisite legal capacity to act on her own behalf, and therefore may be
unable to understand the meaning and consequences of this lawsuit. It is my primary basis for this appeal.
Texas Rule of Civil Procedure 44 sets forth a procedure for certain litigants, including “persons non
compos mentis,” to sue and be represented by a “next friend.” Tex. R. Civ. P. 44. The proper method for
appointment of a next friend to another adult is to follow the same procedure for the appointment of a
guardian ad litem, as set forth in Texas Rule of Civil Procedure 173. Tex. R. Civ. P. 173; Intracare Hosp. N. v.
Campbell, 222 S.W.3d 790, 798 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Nothing in the record shows
that Mary was adjudicated incompetent or that Matt was her next friend or her guardian.
Also, Matt is not an attorney. Rule of Civil Procedure 44 does not vitiate § 81.102 of the Texas Government
Code and allow unlicensed persons to practice law through appointment as next friend. Jimison v. Mann, 957
S.W.2d 860, 861 (Tex. App.—Amarillo 1997, no writ). Rather, persons must be members of the State Bar to
practice law in Texas on behalf of others. Tex. Gov’t Code Ann. § 81.102(a) (Vernon 2005); e.g., Magaha v.
Holmes, 886 S.W.2d 447, 448 (Tex. App.—Houston [1st Dist.] 1994, no pet.) (holding that plaintiff’s mother
could not act as his attorney because she was not licensed to practice law). Although the supreme court may
promulgate rules allowing others to practice law in Texas, that power is limited to the practice by (1) attorneys
licensed in foreign jurisdictions, (2) bona fide law students, and (3) unlicensed graduate students who attend
or attended a law school approved by the supreme court. Tex. Gov’t Code Ann. § 81.102(b) (Vernon 2005).
Accordingly, Matt is not entitled to act pro se to represent his sister’s interests.
Limited Role of Attorney Ad Litem
To the extent that Matt complains, in his fifth issue, that the attorney ad litem failed to properly represent
Matt’s interests along with the interests of the other heirs of John E. and Mary V. Gilbert, he has offered no
argument that he was harmed, and in any case, the record reveals that the limited scope of the attorney ad
litem’s charge was solely to identify the heirs of John E. and Mary V. Gilbert, and not to represent those heirs
in the tax foreclosure proceeding. Footnote
We overrule Matt’s first five issues.
Lack of Notice
In his sixth issue, Matt contends that the trial court erred by not serving him with notice of the trial setting.
The law presumes a trial court hears a case only after proper notice to the parties. Osborn v. Osborn, 961
S.W.2d 408, 411 (Tex. App.—Houston [1st Dist.] 1997, pet. denied). “A recitation of due notice of the trial
setting in the judgment constitutes some, but not conclusive evidence that proper notice was given.” Id. This
presumption can be rebutted by evidence in the record. Id.
Matt concedes that this was not an initial trial setting, as he notes in his brief that he had previously
appeared in court and that the trial had been reset. Rule of Civil Procedure 245 requires that a trial court must
give 45 days notice of a first trial setting, but may reset the trial to a later date on any reasonable notice. See
id. The judgment recites that Matt was served with notice of the January 24, 2006 trial, and the notice of trial
setting with a certificate of service including Matt appears in the record.
Accordingly, we overrule Matt’s sixth issue.
In his seventh issue, Matt complains about a comment made by opposing counsel. Matt contends that at an
oral hearing, an attorney for the taxing authorities told him that his “situation was hopeless,” that “nothing
could be done to prevent the property from being foreclosed on and going to public auction,” and that Matt
“was going to lose the family home” and he “might as well ‘hang it up.’” Matt contends that he became
distraught with an “immediate pervading sense of hopelessness,” and that he “broke down and openly wept
right there in the courtroom.”
Matt sought no relief in the trial court, and he seeks no specific relief from this Court with respect to this
issue. We thus cannot provide any relief in this regard on his appeal from the judgment of the trial court. We
overrule this issue.
In his eighth and final issue, Matt complains that he was unable to challenge the property’s valuation
because his parents died intestate and he is not the record owner of the property. He argues, “Because the
property may be taxed at an unfair rate, it renders the amount of the judgment invalid.” We interpret this as a
challenge to the valuation of the property.
This is an appeal from judgment in a lawsuit to recover delinquent taxes. Matt is statutorily barred from
challenging the valuation of the house in this case, and we lack jurisdiction to consider such a claim. Chapter
41 of the Tax Code establishes procedures for a taxpayer to protest an appraisal board’s valuation of his real
property. Tex. Tax. Code Ann. §§ 41.41–.47 (Vernon 2008). Because this remedy is exclusive, improper or
“unfair” valuation of property is not a defense to a suit for delinquent taxes. Id. § 42.09(a)(1) (“Except as
provided by Subsection (b) of this section, procedures prescribed by this title for adjudication of the grounds
of protest authorized by this title are exclusive, and a property owner may not raise any of those grounds . . .
in defense to a suit to enforce collection of delinquent taxes . . . .”); see Starflight 50, L.L.C. v. Harris County
Appraisal Dist., 287 S.W.3d 741, 745 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (“In the Property Tax
Code, the exhaustion of remedies provisions, found in section 42.09, are mandatory and jurisdictional.”).
We overrule this issue.
We affirm the judgment of the trial court.
Panel consists of Chief Justice Radack and Justices Bland and Massengale.