Frazier v. Levi

• Decision Date: 24 April 1969
• Docket Number: No. 15464,15464
• Citation: 440 S.W.2d 393
• Parties: Minnie FRAZIER, Guardian, Appellant, v. Daisy LEVI, Appellee. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 393

440 S.W.2d 393

Minnie FRAZIER, Guardian, Appellant, v. Daisy LEVI, Appellee.

No. 15464.

Court of Civil Appeals of Texas Houston (1st Dist.).

April 24, 1969.

Barker, Lain, Smith & Schwab, Elmo Schwab, Galveston, for appellant.

Ted Allmond, Galveston, for appellee.

PEDEN, Justice.

Application filed by the guardian of the person and estate of a mentally incompetent ward seeking an order authorizing an operation which would render the ward sexually sterile. There is no medical or physical necessity for the operation sought by the guardian; the application is based on social and economic grounds only.

When this cause was filed by the guardian in the County Court, a guardian ad litem was duly appointed for the ward; he filed on the ward's behalf an exception in the nature of a general demurrer, asserting that under Texas law there are no grounds upon which the application could be granted; this exception was sustained. The guardian declined to amend her petition, and her application was ordered dismissed.

She appealed from the dismissal order to the District Court, where her application was submitted on the same pleadings as in the County Court. The District Judge also sustained the ward's exception and dismissed the case; the guardian has perfected her appeal to this Court from that order of dismissal.

In her points of error the guardian alleges that the courts below erred 1) in ruling that there are no legal grounds in Texas upon which the application for sexual sterilization could be granted, 2) in sustaining the ward's exception in the nature of a general demurrer to the guardian's pleading and 3) in dismissing the guardian's application for sexual sterilization of a ward. This seems to be a case of first impression in Texas.

The trial courts' decisions were based on the pleadings as a matter of law, so we will consider as true the allegations in the guardian's application. In it she pleaded that she is the aged mother of the ward, is in poor health and is unable to stand the physical, financial or emotional strain of caring for any more children of the ward. She and her husband are already providing for the ward and the ward's two children, both of whom are mentally retarded. The ward, age 34, has the mentality of about a six year old, is sexually promiscuous, unable to support or take care of herself or her children, but is in good physical health . No medical reason for her sexual sterilization exists, and the officials of John Sealy Hospital in Galveston have refused to have such an operation performed on the ward without the court's approval .

We overrule appellant's points of error.

As a mentally incompetent person, the ward lacks the mental capacity to consent to the operation or to oppose it. Her legal rights are to be carefully protected and must not be taken from her without due process of law even though her natural mother and guardian feels that the operation would benefit all.

'Power with respect to the care and custody of persons of unsound mind and the possession and control of their estates are vested in the state, or the people thereof, the exercise of which power the people may delegate to the courts by constitutional or statutory provision. Insane persons are considered as wards of the state; and the state as parens patriae is under a special duty to protect them and their property as a class incapable of protecting themselves, as well as to protect the public from the acts of those who are not under the guidance of reason. Within constitutional limitations, the state may enact statutory provisions for the protection of such persons, which provisions must have reasonable regard for the rights of persons and property, and must be liberally construed to the end that their purpose may be effectuated. An insane person cannot be deprived of his legal rights otherwise that in the manner expressly provided by the statute, * * *.' 44 C.J.S. Insane Persons § 3, p. 48.

That...