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Click here for the full text of this decision FACTS:In this divorce case, the district court appointed a “next friend” for wife, Debra Saldarriaga, on the motion of Debra’s attorney because of the attorney’s belief that Debra was not competent to make her own decisions with respect to the divorce suit. The next friend entered into a Rule 11 agreement with Debra’s husband, Alejandro Saldarriaga, settling the Saldarriagas’ financial and parent-child relationships. A second district court approved the Rule 11 agreement over Debra’s objections and proceeded to enter a final divorce decree. In that district court, Debra challenged the appointment of the next friend, the approval of the Rule 11 agreement entered into by the next friend, and the entry of the decree, asserting that her due-process rights were violated by the improper appointment of the next friend. She also challenged the district court’s denial of her motion to abate the divorce proceedings while a guardianship proceeding was pending in the probate court. She now asserts those same complaints on appeal. HOLDING:Reversed and remanded. The rule does not provide for any kind of procedure for the appointment of a next friend. It merely gives minors and incapacitated persons the ability to sue and appear by a representative. It is clear that a child’s parent may file a suit on the child’s behalf as next friend without the need for a formal adjudication of the child’s infancy because there is rarely a fact issue as to whether a person is a minor. However, there will almost always be a fact issue as to whether someone is a person non compos mentis (mentally incompetent). The rule does not prescribe the manner in which it must be determined whether someone who is not a minor is incapacitated. The court finds no procedural standards in statutes or case law for the appointment of a next friend. It is legal error to conclude from Texas Rule of Civil Procedure 44 that an attorney may step in as next friend for a grown woman in the middle of a suit without a formal adjudication of incapacity. The district court erred in relying on Rule 44 to support its appointment of Jerry Jones as Debra’s next friend. Debra contends that her procedural due-process rights were denied because she was not personally served with the two motions seeking appointment of a guardian or next friend, was not properly notified of her right to contest the motions, was not appointed an attorney ad litem to represent her interests, and had insufficient time to prepare for the hearing. She asserts that the due process for the appointment of a next friend under these circumstances should parallel the procedures established in the probate code for the appointment of a guardian. The court agrees. The district court had no jurisdiction to conduct guardianship proceedings, and proper procedures had not been followed to permit any court to proceed to a determination of Debra’s incapacity. Instead, the district court attempted to appoint a next friend to effectively serve as Debra’s guardian, without heeding Jones’s admonitions about the probate code’s requirements. The probate code’s mandate is clear: “If a court has probable cause to believe that a person . . . is an incapacitated person, and the person does not have a guardian in this state, the court shall appoint a guardian ad litem or court investigator to investigate and file an application for the appointment of a guardian of the person or estate, or both, of the person believed to be incapacitated.” Texas Probate Code �683(a). The district court abused its discretion by not referring the motion to the probate court to consider in a timely manner the need for a guardianship. Similarly, the second district court should have recognized the error committed at the first hearing and granted Debra’s motion to abate the divorce proceedings and await the results in the pending guardianship proceeding initiated by Jones. The court holds that both district courts abused their discretion, the first by appointing a next friend who had virtually all the powers of a guardian and the second by approving the Rule 11 agreement entered into by the next friend over Debra’s objections. OPINION:Smith, J.;

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