IN THE

TENTH COURT OF APPEALS

No. 10-04-00118-CV

In the Matter of Jewel W. Keller,

an Incapacitated Person

From the 220th District Court

Hamilton County, Texas

Trial Court No. 04-01-01104

          The result of Zipp’s third issue on appeal, whether the trial court erred in removing her as guardian of the estate of Jewel Keller, will decide who has the duty to wrap up the affairs of Keller’s guardianship estate, including the delivery and accounting for the assets of that estate to the personal representative of the decedent’s estate.  The duly appointed guardian will have to decide questions related to the propriety of payment of various expenses and make an accounting.  The question to be decided by this appeal is, in part, who is the duly appointed guardian with that responsibility?  This issue is not moot.  See Pinnacle Gas Treating, Inc. v. Read, 104 S.W.3d 544 (Tex. 2003).  A guardian is appointed to make decisions on behalf of the guardianship estate.  The current dispute is; who is the proper person to make these decisions and wind up the affairs of the guardianship estate?  That dispute did not die with Ms. Keller.  See Weatherly v. Byrd, 552 S.W.2d 573, 574 (Tex. Civ. App.—Fort Worth 1977), rev’d on the merits, 566 S.W.2d 292 (Tex. 1978).

          I dissent.

                                                          TOM GRAY

                                                          Chief Justice

Dissenting opinion delivered and filed July 27, 2005