173.1. Appointment Governed by Statute or Other Rules
This rule does not apply to an appointment of a guardian ad litem governed by statute or other rules.
173.2. Appointment of Guardian ad Litem
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(a) When Appointment Required or Prohibited. The court must appoint a guardian ad litem for a party represented by a next friend or guardian only if:
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(1) the next friend or guardian appears to the court to have an interest adverse to the party; or
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(2) the parties agree.
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(b) Appointment of the Same Person for Different Parties. The court must appoint the same guardian ad litem for similarly situated parties unless the court finds that the appointment of different guardians ad litem is necessary.
173.3. Procedure
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(a) Motion Permitted But Not Required. The court may appoint a guardian ad litem on the motion of any party or on its own initiative.
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(b) Written Order Required. An appointment must be made by written order.
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(c) Objections. Any party may object to the appointment of a guardian ad litem.
173.4. Role of Guardian ad Litem
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(a) Court Officer and Advisor. A guardian ad litem acts as an officer and advisor to the court.
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(b) Determination of Adverse Interest. A guardian ad litem must determine and advise the court whether a party’s next friend or guardian has an interest adverse to the party.
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(c) When Settlement Proposed. When an offer has been made to settle the claim of a party represented by a next friend or guardian, a guardian ad litem has the limited duty to determine and advise the court whether the settlement is in the party’s best interest.
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(d) Participation in Litigation Limited. A guardian ad litem:
- (1) may participate in mediation or a similar proceeding to attempt to reach a settlement;
- (2) must participate in any proceeding before the court whose purpose is to determine whether a party’s next friend or guardian has an interest adverse to the party, or whether a settlement of the party’s claim is in the party’s best interest;
- (3) must not participate in discovery, trial, or any other part of the litigation unless: (A) further participation is necessary to protect the party’s interest that is adverse to the next friend’s or guardian’s, and (B) the participation is directed by the court in a written order stating sufficient reasons.
173.5. Communications Privileged
Communications between the guardian ad litem and the party, the next friend or guardian, or their attorney are privileged as if the guardian ad litem were the attorney for the party.
173.6. Compensation
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(a) Amount. If a guardian ad litem requests compensation, he or she may be reimbursed for reasonable and necessary expenses incurred and may be paid a reasonable hourly fee for necessary services performed.
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(b) Procedure. At the conclusion of the appointment, a guardian ad litem may file an application for compensation. The application must be verified and must detail the basis for the compensation requested. Unless all parties agree to the application, the court must conduct an evidentiary hearing to determine the total amount of fees and expenses that are reasonable and necessary. In making this determination, the court must not consider compensation as a percentage of any judgment or settlement.
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(c) Taxation as Costs. The court may tax a guardian ad litem’s compensation as costs of court.
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(d) Other Benefit Prohibited. A guardian ad litem may not receive, directly or indirectly, anything of value in consideration of the appointment other than as provided by this rule.
173.7. Review
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(a) Right of Appeal. Any party may seek mandamus review of an order appointing a guardian ad litem or directing a guardian ad litem=s participation in the litigation. Any party and a guardian ad litem may appeal an order awarding the guardian ad litem compensation.
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(b) Severance. On motion of the guardian ad litem or any party, the court must sever any order awarding a guardian ad litem compensation to create a final, appealable order.
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(c) No Effect on Finality of Settlement or Judgment. Appellate proceedings to review an order pertaining to a guardian ad litem do not affect the finality of a settlement or judgment.
Official Notes and Commentary
Comment to 2004 change:
1. The rule is completely revised.
2. This rule does not apply when the procedures and purposes for appointment of guardians ad litem (as well as attorneys ad litem) are prescribed by statutes, such as the Family Code and the Probate Code, or by other rules, such as the Parental Notification Rules.
3. The rule contemplates that a guardian ad litem will be appointed when a party’s next friend or guardian appears to have an interest adverse to the party because of the division of settlement proceeds. In those situations, the responsibility of the guardian ad litem as prescribed by the rule is very limited, and no reason exists for the guardian ad litem to participate in the conduct of the litigation in any other way or to review the discovery or the litigation file except to the limited extent that it may bear on the division of settlement proceeds. See Jocson v. Crabb, 133 S.W.3d 268 (Tex. 2004) (per curiam). A guardian ad litem may, of course, choose to review the file or attend proceedings when it is unnecessary, but the guardian ad litem may not be compensated for unnecessary expenses or services.
4. Only in extraordinary circumstances does the rule contemplate that a guardian ad litem will have a broader role. Even then, the role is limited to determining whether a party’s next friend or guardian has an interest adverse to the party that should be considered by the court under Rule 44. In no event may a guardian ad litem supervise or supplant the next friend or undertake to represent the party while serving as guardian ad litem.
5. As an officer and advisor to the court, a guardian ad litem should have derived judicial immunity.
6. Though an officer and adviser to the court, a guardian ad litem must not have ex parte communications with the court. See Tex. Code of Jud. Conduct, Canon 3.
7. Because the role of guardian ad litem is limited in all but extraordinary situations, and any risk that might result from services performed is also limited, compensation, if any is sought, should ordinarily be limited.
8. A violation of this rule is subject to appropriate sanction.