law-ANF-as-next-friend TRCP 44 | Tex. R. Civ. P. 44 |
TRCP 44 - SUING AS NEXT FRIEND ON BEHALF OF ANOTHER
Texas Rule of Civil Procedure 44 allows for “minors, lunatics, idiots, or persons non compos mentis who
have no legal guardian” to sue and be represented by a “next friend.” Tex. R. Civ. P. 44. Rule 44 of the
Texas Rules of Civil Procedure, however, does not vitiate Section 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). The
Supreme Court may promulgate rules allowing others to practice law in Texas, but 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).
Neither Greene nor McZeal is a licensed attorney, but they attempt to prosecute this lawsuit pro se on
behalf of McCrimmon and Creton. They urge that Rule 44 does not provide for a procedure for appointing
a next friend and does not require a next friend to be an attorney, and thus they should be allowed to act
as next friends. They rely on Saldarriaga v. Saldarriaga, 121 S.W.3d 493, 498 (Tex. App.—Austin 2003,
no pet.) for this proposition. However, in Saldarriaga, the court of appeals held that the proper method of
appointment for a next friend to another adult is to follow the same procedure for the appointment of a
guardian ad litem, set forth in Texas Rule of Civil Procedure 173. Id. at 499; Tex. R. Civ. P. 173. In
addition, the Probate Code provides a procedure for establishing a guardianship. See Tex. Prob. Code
Ann. § 682–687 (Vernon 2003). In this case, the court never appointed Greene and McZeal as next
friends. The only evidence that Greene and McZeal offered in support of their status as next friends was
Greene’s affidavit stating that McCrimmon and Creton were elderly, infirm, and suffered from mental
problems. This is insufficient evidence to support an appointment of next friend. See Saldarriaga, 121 S.
W.3d at 500 (noting that such an appointment requires proof from a qualified healthcare provider that a
person’s physical or mental state impairs the ability to make or communicate responsible decisions in the
suit). Based on this record, we hold that Greene and McZeal may not properly prosecute the case as next
friends of McCrimmon and Creton.
Moreover, Greene and McZeal are not attorneys and may not act as attorneys on behalf of others
because they are not licensed by the State Bar of Texas. Jimison, 957 S.W.2d at 861 (holding that the
rabbi/reverend who purported to act as next friend of the plaintiff could not act as legal counsel because
he was not licensed to practice law); Magaha v. Holmes, 886 S.W.2d 447, 448 (Tex. App.—Houston [1st
Dist.] 1994, no pet.) (holding that the plaintiff’s mother could not act as his attorney because she was not
licensed to practice law); Martin v. Commercial Metals Co., 138 S.W.3d 619, 622 (Tex. App.—Dallas 2004,
no pet.) (holding that one appellant could not represent other appellants, who were minors at the time of
filing, pro se, because he was not a licensed attorney). Greene and McZeal have signed and filed
pleadings, motions, and other legal documents involved in this case in both the trial court and this court.
They also purported to represent McCrimmon and Creton at a hearing. These acts constitute the
unauthorized practice of law. See Tex. Gov’t Code Ann. § 81.101 (Vernon 2005) (“[T]he ‘practice of law’
means the preparation of a pleading or other document incident to an action or special proceeding or the
management of the action or proceeding on behalf of a client before a judge in a court. . . .”); Magaha,
886 S.W.2d at 448. Accordingly, we hold that the trial court properly dismissed this suit because Greene
and McZeal are not proper next friends and may not act pro se to represent others.[1]
McCrimmon v. Taylor (Tex.App.- Houston [1st Dist.] Feb. 19, 2009)(Bland)
(nonlawyer pro se party may not sue as next friend of another adult, unauthorized practice of law, motion
to show authority, TRCP 12)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Taft, Bland and Sharp
01-08-00644-CV Mae H. McCrimmon & Lula Mae Creton v. Barron Taylor d/b/a B-Sure Mortgate, et al.
Appeal from 280th District Court of Harris County
Trial Court Judge: The Honorable Tony Lindsay
Representation of Another
Moreover, Matt is not authorized to contest the judgment directly on behalf of his adult sister. In his brief,
Matt states:
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.
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 TC 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
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.
In Re Collins (Tex. App.- Houston [14th Dist.] Dec. 17, 2007)(Guzman)
(amicus attorney, representation of minor in wrongful death action involving mother, grandparents vs.
surviving parent, father)
MOTION OR WRIT GRANTED: Opinion by Justice Guzman
Before Justices Brock Yates, Fowler and Guzman
14-07-00624-CV In Re: Russell Craig Collins
Appeal from 387th District Court of Fort Bend County (Judge Robert J. Kern)
we conclude the trial court abused its discretion by ordering Collins to cease prosecuting S.E.E.'s claims
as her next friend and by ordering the amicus attorney to act as S.E.E.'s next friend, to hire counsel to
represent her, and to be paid for services connected with the various wrongful death suits. We therefore
conditionally grant Collins's petition for writ of mandamus directing Judge Kern to reform his prior orders
The Wrongful Death Suit Brought by Collins as [child's] Next Friend
Collins begins with the contention that, as S.E.E.'s father, he was authorized to assert S.E.E.'s wrongful
death claims as S.E.E.'s next friend. The Grandparents respond that the prior court order granted S.E.E.'s
mother the exclusive right to take legal action on S.E.E.'s behalf. As previously noted, this prior order
provided that “[t]he conservator designated with the primary physical residence of the child" had the
exclusive "power to represent the child in legal action and to make other decisions of substantial legal
significance concerning the child including the right to establish the primary residence of the child . . . ."
[11] But "in the event of the death of the managing conservator, the surviving parent has a right to
possession of the children . . . ." Greene v. Schuble, 654 S.W.2d 436, 438 (Tex. 1983).
Although a parent's right to "possession" and issues of conservatorship (or the child's residence) are
distinct legal concepts,[12] we agree that the mother's rights to establish S.E.E.'s residence and to
exercise S.E.E.'s legal rights were extinguished upon her death. At that time, the right to take legal action
on S.E.E.'s behalf passed to Collins as her only surviving parent. See Massey v. Galvan, 822 S.W.2d 309,
319 (Tex. App.- Houston [14th Dist.] 1992, writ denied) (when the managing conservator dies, the
surviving parent has the right to contract for the minor children); see also Tex. R. Civ. P. 44 (minors who
have no legal guardian may sue and be represented by a “next friend");[13] Tex. Fam. Code Ann. §
151.001(a)(7) (Vernon Supp. 2007) (subject to court orders, the parent of a child has "the right to
represent the child in legal action and to make other decisions of substantial legal significance concerning
the child"); Urbish v. 127th Judicial Dist. Court, 708 S.W.2d 429 (Tex. 1986) (orig. proceeding) (affirming
trial court's order denying father's motion, as managing conservator, to replace mother as son's next
friend). We therefore conclude that Collins acted within his authority in asserting his daughter's claims.
in the absence of an order to the contrary, a child's sole surviving parent can bring suit on the child's
behalf, even though no court order appoints the parent as the sole managing conservator. Massey, 822 S.
W.2d at 319; see also Tex. Prob. Code Ann. § 676(b) (Vernon 2003) ("If one parent is dead, the survivor
is the natural guardian of the person of the minor children and is entitled to be appointed guardian of their
estates.").
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