CROSSOVER: The ‘Representative Capacity’ Trap: Non-Lawyer Conservators Cannot File Pro Se Appeals for Wards.

Bunch v. Goen, 03-25-00614-CV, March 13, 2026.

On appeal from 433rd District Court of Comal County, Texas.

Synopsis

The Third Court of Appeals held that a non-attorney conservator may not represent a ward pro se in an appellate proceeding, as such actions constitute the unauthorized practice of law under the Texas Government Code and exceed the scope of Texas Rule of Civil Procedure 7. Furthermore, the court determined that where a jurisdictional defect exists due to a non-final judgment, the proper appellate remedy is often abatement to allow for the rendition of a final judgment rather than immediate dismissal.

Relevance to Family Law

In the context of Texas Family Law, this ruling is a critical reminder that “representative capacity”—whether through a guardianship, a power of attorney, or a court-appointed conservatorship—does not grant a non-lawyer the authority to litigate on behalf of another. Family law practitioners often encounter pro se litigants who believe their status as a “Next Friend” or “Guardian ad Litem” (in a non-legal capacity) allows them to file notices of appeal or briefs for a ward or child. This case reinforces the “Attorney-Only” barrier in appellate practice, providing a powerful mechanism to strike ineffective filings by non-lawyer fiduciaries in high-conflict SAPCR or guardianship disputes.

Case Summary

Fact Summary

Arlene Bunch and Rick Toledo, the latter appearing as “Conservator for Darlene Toledo Magner,” attempted to appeal an order from the 433rd District Court. The appellate court initially dismissed the case for lack of jurisdiction because the trial court’s judgment was not final. On a motion for rehearing, the court revisited the jurisdictional landscape. Upon review, the court discovered that Rick Toledo, a non-attorney, had filed the notice of appeal, the appellants’ brief, and the motion for rehearing on behalf of the ward, Magner. Toledo was not a party to the case in his individual capacity, but was attempting to act solely in his representative capacity as a conservator.

Issues Decided

1. Whether an appeal from a non-final judgment must be dismissed or if it may be abated to allow the trial court to cure the finality defect.
2. Whether a non-lawyer conservator is authorized under Texas Rule of Civil Procedure 7 to perfect an appeal and file briefs on behalf of a ward.

Rules Applied

• Texas Rule of Civil Procedure 7: Permits a party to appear in court and manage their own cause pro se, but limits this right to the litigation of the individual’s own rights, not those held in a representative capacity.
• Texas Government Code §§ 81.101-.102 & 83.001-.006: Prohibits the practice of law by individuals who are not members of the State Bar of Texas, defining the “practice of law” to include the preparation of pleadings and documents incident to an action.
• McNally v. Guevara, 52 S.W.3d 195 (Tex. 2002): Provides the appellate court discretion to abate an appeal to permit the trial court to render a final judgment rather than dismissing for lack of jurisdiction.
• Kunstoplast of Am., Inc. v. Formosa Plastics Corp., U.S.A., 937 S.W.2d 455 (Tex. 1996): Clarifies that while non-lawyers may perform ministerial tasks, they cannot represent another entity or person in court.

Application

The court first addressed the finality of the judgment. Applying the standard set in McNally, the court opted to abate the case for thirty days to allow for a supplemental clerk’s record containing a final judgment, rather than standing by its initial dismissal. However, the court then turned to the “facial jurisdictional defect” regarding representation.

The court engaged in a strict construction of Rule 7 and the Texas Government Code. It reasoned that because the practice of law includes drafting pleadings and appellate documents, Rick Toledo’s filings on behalf of Magner were legally ineffective. The court emphasized that the privilege to appear pro se is personal; it does not extend to fiduciaries representing the interests of others. Because Toledo was not a licensed attorney, his attempt to perfect the appeal for Magner was a nullity. The court noted that a notice of appeal filed by a non-attorney fails to invoke the court’s jurisdiction over the party the non-attorney purports to represent.

Holding

The court held that a non-attorney may not represent another party in a representative capacity. Consequently, any appellate documents filed by a non-lawyer on behalf of a ward or third party are ineffective to perfect an appeal or present issues for review.

The court further held that the appropriate procedural step when faced with a non-final judgment is to abate the appeal for a reasonable period to allow the parties to obtain a final, appealable order from the trial court, provided other jurisdictional prerequisites are met.

Practical Application

For the family law practitioner, this case provides the “teeth” needed to challenge appeals filed by non-parent conservators or family members acting under a power of attorney. If an opposing party is a non-lawyer appearing in a representative capacity (e.g., a grandmother as “Next Friend”), their notice of appeal is technically a nullity. Practitioners should move to strike such filings immediately rather than waiting for briefing, citing the unauthorized practice of law.

Checklists

Identifying Unauthorized Representative Filings

• Review the signature block of the Notice of Appeal: Is the filer a licensed Texas attorney?
• Verify the party’s status: Is the individual filing on behalf of a ward, a trust, an estate, or a child?
• Check the Trial Court Order: Does the individual have a “representative” title (Conservator, Guardian, Executor) but no bar card?
• Determine if the filer is a party in their individual capacity: If they are only a party “as Conservator,” they cannot proceed pro se.

Curing and Challenging Jurisdictional Defects

• For the Appellee: File a Motion to Dismiss or Strike based on the unauthorized practice of law (Gov’t Code § 81.101).
• For the Appellee: If the judgment is non-final, argue against abatement if the representation defect is incurable.
• For the Appellant (Curing): Retain licensed counsel immediately to file an amended notice of appeal and “show cause” response within the court’s abatement period.
• For the Appellant (Curing): Ensure a supplemental clerk’s record is requested specifically for the “Final Judgment” during the abatement window.

Citation

Bunch v. Goen, No. 03-25-00614-CV, 2026 WL [Pending] (Tex. App.—Austin Mar. 13, 2026, no pet.) (per curiam) (order).

Full Opinion

The full opinion can be found here: Full Opinion Link

Family Law Crossover

This civil ruling is a potent weapon in Texas divorce and custody litigation, particularly in cases involving “next friends” or non-parent intervenors. In many high-conflict SAPCR cases, a non-lawyer relative might be appointed as a possessory conservator and subsequently attempt to appeal a custody ruling pro se. Under Bunch, that notice of appeal is ineffective.

Strategic counsel can “weaponize” this by allowing the 30-day window for filing a notice of appeal to lapse while the non-lawyer proceeds pro se, then filing a motion to dismiss once the jurisdictional clock has run out. Because a non-lawyer’s filing does not “perfect” the appeal, the subsequent attempt to hire an attorney to “fix” the notice may be too late to confer jurisdiction on the appellate court if the original filing was a nullity. This effectively insulates the trial court’s favorable custody or property ruling from appellate review.

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