In probate case, attorney for applicant filed for payment of attorney's fees by county. Case has been moved to CCL. Ad Litem & court want to hear from the county on the payment (the statutory fund for such only has about 1/4 what is requested).

What do I file? I have a feeling I'll be doing several of these as our county judge is having problems and this particular attorney pulls this all over the area.

Help appreciated....

Could you file a brief as an amica curiae?

I had this question put to me a couple of years ago, but the county judge just asked me for an opinion letter, which I rendered, just to the judge.

This whole industry seems like a big racket, if you ask me.

Jim, could you share your letter with me? It may give me a starting point. Not sure I've ever done an amicus....anybody got a basic beginning??

Lisa, are the requesting that the County pay fees for an attorney ad litem appointed by the Court?

No; these are fees being charged by the attorney for the applicant, which arguably could be paid from the estate....if there was one...

To what statute is the lawyer pointing as authority for the county to pick up the tab?

§ 1155.054. Payment of Attorney's Fees to Certain Attorneys

(a) A court that creates a guardianship or creates a management trust under Chapter 1301 for a ward, on request of a person who filed an application to be appointed guardian of the proposed ward, an application for the appointment of another suitable person as guardian of the proposed ward, or an application for the creation of the management trust, may authorize the payment of reasonable and necessary attorney's fees, as determined by the court, in amounts the court considers equitable and just, to an attorney who represents the person who filed the application at the application hearing, regardless of whether the person is appointed the ward's guardian or whether a management trust is created, from available funds of the ward's estate or management trust, if created, subject to Subsections (b) and (d).
(b) The court may authorize amounts that otherwise would be paid from the ward's estate or the management trust as provided by Subsection (a) to instead be paid from the county treasury, subject to Subsection (e), if:
(1) the ward's estate or management trust is insufficient to pay the amounts; and
(2) funds in the county treasury are budgeted for that purpose.
(c) The court may not authorize attorney's fees under this section unless the court finds that the applicant acted in good faith and for just cause in the filing and prosecution of the application.
(d) If the court finds that a party in a guardianship proceeding acted in bad faith or without just cause in prosecuting or objecting to an application in the proceeding, the court may require the party to reimburse the ward's estate for all or part of the attorney's fees awarded under this section and shall issue judgment against the party and in favor of the estate for the amount of attorney's fees required to be reimbursed to the estate.
(e) The court may authorize the payment of attorney's fees from the county treasury under Subsection (b) only if the court is satisfied that the attorney to whom the fees will be paid has not received, and is not seeking, payment for the services described by that subsection from any other source.

Would it be better for me to try to work as an Amicus, or to come in as a necessary party? If the county is going to be ordered to pay this ...person...is that the more appropriate means?

I haven't done this much digging in civil stuff in decades....all help SINCERELY appreciated!

The fact that I had to ask should tell you I don't do a lot of guardianship. Someone else here handles that. But I would note that the statute speaks in terms of "authorizing" the payment, rather than "ordering" it. It would seem to me that that vests some discretion in the commissioners court, at least to the extent of determining whether sufficient funds are budgeted for the award. The other question would arise when the lawyer tried to get paid. Specifically, what if the county declined his request/demand? What's he going to do? Sue? I don't see a clear and unambiguous waiver of governmental immunity in this statute. The county isn't a necessary party, the statute doesn't contain any express waiver language, and it certainly can be given effect without implying a waiver. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697-98 (Tex. 2002). Since any ambiguities in this respect are resolved in favor of retaining immunity, I don't see how he would get around that.

To keep things on a little friendlier basis, I might be inclined to point that out as an amicus, with some additional emphasis on the fact that budgeted funds probably aren't available, anyway, so the authorization would largely be a futile act. See Ware v. Miller, 82 S.W.3d 795, 804 (Tex. App.--Amarillo 2002, pet. denied) ("As a matter of public policy, courts do not require performance of useless acts.").

Thank you, Scott!!

The first thing that I would do is point out that county funds have not been budgeted for such a purpose and so the court cannot authorize payment, under subsection (b)(2).