A probate court appoints an attorney ad litem to represent unknown heirs in a heirship proceeding. The court later awards the attorney fees and terminates her representation in an appealable order. More than thirty days pass. When the attorney’s fee award is appealed, the probate court reappoints her to defend the appeal. An heir challenges the reappointment, arguing the probate court lost plenary power to modify its prior order thirty days after issuing it.
This scenario presents a recurring confusion in Texas probate practice. Courts frequently issue multiple orders during probate proceedings that are sufficiently final to permit appellate review under Texas law. However, these appealable orders are issued while the underlying probate proceeding continues. The question becomes whether issuing an appealable order triggers the thirty-day plenary power deadline that prevents trial courts from modifying their judgments.
Does a probate court lose plenary power to modify prior orders simply because those orders are appealable under Texas’s unique probate rules? The Second District Court of Appeals’ decision in In re Estate of Harris, No. 02-19-00333-CV (Tex. App.—Fort Worth Mar. 4, 2021, no pet.) (mem. op.), addresses this question and clarifies an important distinction between appealability and finality in probate proceedings.
Facts & Procedural History
John David Harris died intestate on January 6, 2011. His biological son David Glen Harris initiated a proceeding to declare heirship. Harris alleged that the decedent had two biological children—Harris and his brother Lee. Harris did not identify any unknown heirs in his application to declare heirship.
In 2016, the probate court appointed Monika Cooper as attorney ad litem to represent the decedent’s unknown heirs, missing heirs, unborn or unascertained heirs, heirs with legal disability, minor heirs, and incapacitated heirs. Cooper filed an answer on behalf of the decedent’s unknown heirs. She later filed a report indicating that the decedent may have had a third son born out of wedlock who was a potential heir. The possible third son received notice of the heirship proceeding but never entered an appearance.
After working on the case for more than a year, Cooper requested attorney’s fees. The probate court held a hearing on March 1, 2018. At the hearing, Cooper acknowledged that Harris and his brother appeared to be the decedent’s only known heirs, as the possible third son had not entered an appearance. The probate court granted Cooper’s request for fees, ordered that the fees be paid out of the court registry, and terminated Cooper’s representation as attorney ad litem.
Harris appealed to the Second District Court of Appeals. He challenged the original appointment of Cooper as attorney ad litem, the scope of Cooper’s duties, and the award of ad litem fees. Cooper filed a motion with the probate court to be reappointed as attorney ad litem to defend her appointment and to represent the interests of the unknown heirs on appeal. The probate court granted Cooper’s motion and entered an order reinstating Cooper as attorney ad litem for the unknown heirs, but only for the limited purpose of representing her clients in the appeal.
Harris immediately attempted to file a separate appeal of the probate court order reappointing Cooper. He argued that the probate court lacked plenary power for the reappointment. The Court of Appeals dismissed the appeal for want of jurisdiction.
After the court affirmed the order appointing Cooper and authorizing payment of her ad litem fees, Cooper requested that the probate court issue a new order awarding her fees for the services rendered in representing the unknown heirs in the appeal. Harris objected, arguing the probate court lacked plenary power to reappoint Cooper, the probate court could not award attorney’s fees for Cooper’s representation of unknown heirs because Cooper allegedly admitted that no unknown heirs existed, and the probate court could not award attorney’s fees because Cooper’s request cited the Estates Code as statutory authorization when the case was governed by the Probate Code.
The probate court overruled Harris’s objections and awarded Cooper her attorney’s fees to be paid from the court registry. The order did not cite a specific statute as the basis for its award. Harris appealed.
The Unique Nature of Probate Appeals
Generally, an appeal may be taken only from a final judgment disposing of all parties and all claims. However, probate proceedings are an exception to this rule and can involve multiple orders that are final enough to qualify for appeal. A party may appeal from a probate court order if it disposes of all parties or issues in a particular phase of the proceedings or if there is an express statute declaring the phase of the probate proceedings to be final and appealable.
If there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory. There is not an express statute declaring a probate order authorizing payment of an attorney ad litem’s fees or terminating the ad litem’s representation to be final and appealable. However, such an order concludes a discrete phase of the probate proceeding and has been held to be appealable.
Courts have held that orders releasing attorneys ad litem and requiring payment of ad litem fees conclude discrete phases of proceedings and are appealable. Orders authorizing payment of attorney ad litem fees for work performed during specified time periods in guardianship proceedings are final and appealable. Orders authorizing payment of temporary administrator legal fees are final and appealable in probate proceedings.
The Court of Appeals had jurisdiction to consider Harris’s appeal because the order awarding Cooper attorney’s fees and terminating her representation concluded a discrete phase of the probate proceeding even though the underlying heirship proceeding remained pending.
Why Appealable Orders Don’t Always Trigger Plenary Power Deadlines
Harris challenged the probate court’s authority to reappoint Cooper as attorney ad litem for unknown heirs. He claimed that because the probate court’s March 1, 2018 order terminating Cooper’s representation was appealable, the probate court lost plenary power to revise or modify its order thirty days after it was issued. Rule 329b(d) and (f) of the Texas Rules of Civil Procedure provide that trial courts lose plenary power thirty days after signing certain judgments.
Harris raised a nearly identical argument regarding the probate court’s plenary power in one of his prior attempted appeals challenging Cooper’s reappointment. However, the Court of Appeals dismissed that appeal for want of jurisdiction. Harris’s reiteration of his plenary power challenge demonstrated the lingering confusion surrounding the finality of appealable orders in the probate context.
Harris relied on the understandable assumption that all appealable probate orders necessarily trigger the thirty-day expiration of plenary power under Rule 329b. The court explained this is not correct. While probate proceedings are an exception to the one-final-judgment rule and may give rise to multiple appealable orders, such orders do not necessarily deprive the probate court of plenary power.
Although an interlocutory order issued in a probate proceeding may be sufficiently final to permit appellate review, the interlocutory order remains just that—interlocutory. The probate court retains authority over the probate proceeding, including the authority to modify its prior orders, despite the appealability of certain interlocutory orders that conclude discrete phases of the proceeding.
The court cited In re Guardianship of Macer, 558 S.W.3d 222 (Tex. App.—Houston [14th Dist.] 2018, no pet.), which held that a probate court had plenary power to modify a reimbursement order ten months after its issuance even though the order was appealable. That court clarified that the fact that an order is considered final for purposes of appeal does not deprive the probate court of plenary power over the entire proceeding, including the court’s prior rulings.
Despite the appealability of the probate court’s March 2018 order awarding Cooper attorney’s fees and terminating her representation as attorney ad litem, the probate court did not lose plenary power to reinstate or reappoint Cooper in her former role. The court overruled Harris’s challenge.
The Mandatory Duty to Appoint and Compensate Attorneys Ad Litem
Harris argued that the probate court abused its discretion by awarding Cooper attorney’s fees for her services on behalf of the decedent’s unknown heirs. He claimed she allegedly judicially admitted that no unknown heirs existed, and Cooper’s request for attorney’s fees cited the Estates Code rather than the Probate Code and thus failed to identify relevant statutory authorization.
The court addressed the complex question of which law governed the proceeding. Generally, the administration of an estate is governed by the law in effect at the time of the decedent’s death. The Probate Code was in effect when the decedent died on January 6, 2011, but was recodified as the Texas Estates Code effective January 1, 2014. The recodification was intended to be nonsubstantive. However, prior to Cooper’s appointment, portions of the new Estates Code were amended to include substantive changes.
The applicability of these substantive changes to then-pending probate proceedings differed. Some changes applied based on the date of the decedent’s death. Others applied to proceedings initiated on or after the effective date of the Estates Code. Still others applied to all probate proceedings pending on or after the effective date. Because the decedent died and Harris filed his application to declare heirship before the Estates Code took effect, and because the proceeding remained pending on the effective date, the proceeding was governed by a mix of Probate Code and Estates Code provisions.
Section 53(c) of the Probate Code required the probate court to appoint an attorney ad litem: “The court shall appoint an attorney ad litem to represent the interests of unknown heirs.” Section 53.104 of the Estates Code provided additional permissive authorization for the ad litem’s appointment and entitled her to compensation. An attorney ad litem appointed under this section is entitled to reasonable compensation for services provided in the amount set by the court.
Harris argued that the probate court abused its discretion by awarding Cooper attorney’s fees even though she allegedly judicially admitted that no unknown heirs existed. The court rejected a similar argument in one of Harris’s prior appeals. Even assuming the judicial admission occurred, Harris’s challenge was predicated on the assumption that Cooper could not recover for her representation of unknown heirs if no heirs of this type were later found to exist.
This is not the case. A probate court is statutorily required to appoint an attorney ad litem to represent unknown heirs in a proceeding to declare heirship, and the ad litem is entitled to reasonable compensation for services rendered regardless of whether unknown heirs are initially believed or later found to exist. Premising an ad litem’s representation or compensation on the successful discovery of previously unknown heirs would amount to contingent representation that would surely frustrate the effective representation of unknown clients.
The Takeaway
The Estate of Harris decision establishes that probate courts retain plenary power over ongoing probate proceedings even after issuing orders that are sufficiently final to permit appellate review under Texas law. Although probate proceedings are an exception to the one-final-judgment rule and may give rise to multiple appealable orders, such orders remain interlocutory in nature and do not trigger the thirty-day plenary power deadline that applies to true final judgments. The probate court retains authority over the entire proceeding, including the authority to modify its prior orders, despite the appealability of certain interlocutory orders that conclude discrete phases of the proceeding. Attorneys ad litem appointed to represent unknown heirs in heirship proceedings are entitled to reasonable compensation under mandatory statutory provisions regardless of whether unknown heirs are later discovered, as premising compensation on successful discovery would frustrate effective representation of unknown clients.
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