IN THE

TENTH COURT OF APPEALS

No. 10-07-00109-CR

Alfred Windon Scott,

                                                                                    Appellant

 v.

The State of Texas,

                                                                                    Appellee

From the 361st District Court

Brazos County, Texas

Trial Court No. 06-01712-CRF-361

Appellant has filed a motion to dismiss his appeal.  See Tex. R. App. P. 42.2(a).  We have not issued a decision in this appeal, and Appellant personally signed the motion.  Accordingly, the appeal is dismissed.

REX D. DAVIS

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Appeal dismissed

Opinion delivered and filed March 4, 2009

[CR25]

I cannot agree to immunize, as a matter of law, all attorneys appointed to review settlements on behalf of incapacitated persons.  There is at least some conflict in this record about whether Sanders was acting as an attorney ad litem or guardian ad litem.  But in either event, his duties were to protect the ward, not act as an arm of the court to decide a matter as would a special master.  Protecting the ward is the service for which a fee was paid.  I will, however, acknowledge that there is a vast difference between the duties of a guardian ad litem and an attorney ad litem, though the extent and nature of those respective duties is not, at this time, clear.  Indeed, the subject has recently been the focus of discussion, analysis, and review by the Texas Supreme Court Rules Advisory Committee in its consideration of amending Rule 173 of the Texas Rules of Civil Procedure.

But the resolution in this case is not dependent on whether Sanders properly performed his duties, whatever they were, as a guardian ad litem or an attorney ad litem.  That is because Sanders’s duties, whatever they were, were concluded a decade before this litigation. During that decade, the ward’s legal guardian and the legal guardian’s wife engaged in illegal acts that wholly depleted the ward’s estate; a classic superseding cause.  It would not have mattered what Sanders did a decade ago.  The legal guardian, who was the ward’s father, and his new wife stripped the ward’s estate.  Only when there was nothing left to take was the ward institutionalized.  Because of this superseding cause, I concur only in affirming the judgment that Wilz take nothing from Sanders.

                                                          TOM GRAY

                                                          Chief Justice

Concurring opinion issued and filed February 23, 2005