Mims v. Hunt County

• Decision Date: 07 May 1981
• Docket Number: No. 20549,20549
• Citation: 620 S.W.2d 664
• Parties: Christopher W. MIMS, Appellant, v. HUNT COUNTY, Texas, Appellee.
• Court: Texas Court of Appeals

Page 664

620 S.W.2d 664

Christopher W. MIMS, Appellant, v. HUNT COUNTY, Texas, Appellee.

No. 20549.

Court of Civil Appeals of Texas, Dallas.

May 7, 1981.

Christopher W. Mims, Dallas, for appellant.

Frederick C. Shelton, Jr., Hunt County Atty., Greenville, for appellee.

Before ROBERTSON, CARVER and AKIN, JJ.

CARVER, Justice.

From a judgment granting a limited guardianship of the person and estate of Joe Allen Petty, Petty's attorney, Christopher W. Mims, prosecutes this appeal in his own behalf complaining that the trial court failed to include in its judgment an award to Mims of an attorney's fee against Hunt County, Texas. Mims contends that since Petty was unable to pay, Hunt County became 'responsible' for his fee under section 130G of the Probate Code (Vernon 1980). We affirm because Mims' right to sue the county was conditioned that (and the record fails to show) Mims had first presented his claim to the Commissioner's Court of the county and that such court had neglected or refused to audit and allow the claim or any part thereof.

The limited guardianship proceedings against Joe Allen Petty was the subject of an earlier opinion by this court in Petty v. Petty, 592 S.W.2d 423 (Tex.Civ.App. Dallas 1979, no writ). Our former opinion held that the process initially served upon Joe Allen Petty was inadequate and reversed and remanded the proceedings. After remand, new process was served upon Petty who answered with general denial and an allegation that, "Defendant's estate is insufficient to pay for an attorney." The prayer of Petty's answer asked that the limited guardianship be denied and "that Hunt County pay his attorney a reasonable fee for legal services as required by law." No notice or process of any kind is reflected in our record to either inform Hunt County of the claim against it or to make Hunt County a party to the proceeding nor does Mims plead that his claim had been presented to, and denied by, the Commissioner's Court of Hunt County.

On April 24, 1980, trial was had before the court with Petty's parents and their attorney prosecuting the application for limited guardianship and Petty and his attorney, Mims, defending. The court rendered judgment granting the limited guardianship, naming both parents as guardians, fixing the guardians' powers, and setting the guardians' bond. The judgment is silent as to Petty's plea for a fee to his attorney, but our statement of facts shows the court pronounced in open court that the attorney's fee was denied. Mims, in his own name, filed a motion for new trial limited to the attorney's fee issue and this motion was denied. Mims, in his own name, then requested findings and conclusions to which the court responded with a finding, among others, that, "7. Joe Allen Petty is not able to pay costs of counsel." The statement of facts contains no testimony as to the claim of Mims having been presented to the Commissioner's Court or as to the neglect or refusal of such court to audit and allow the same and, consistently, the court's findings are silent thereon.

Mims urges on appeal that since the trial court found that Petty was unable to pay counsel, the trial court erred in failing to enter judgment for a reasonable fee in favor of Mims and against Hunt County because section 130G of the Probate Code (Vernon 1980) makes Hunt County responsible therefor. Section 130G provides:

The person alleged to be mentally retarded shall be present at the hearing, unless the court determines that such personal appearance would not be in the person's best interest. He is entitled to be represented by counsel. If he is unable to pay for counsel, the county is responsible for costs of counsel. He is entitled, on request, to a jury trial. The hearing may be closed if the person...