Payne v. Boyd, 04-25-00275-CV, March 25, 2026.
On appeal from 73rd Judicial District Court, Bexar County, Texas
Synopsis
A nonlawyer holding a power of attorney cannot bootstrap himself into court to prosecute another person’s claims. In Payne, the Fourth Court held the defendants waived any capacity challenge by failing to file a verified pleading under Rule 93—but standing is jurisdictional, can be raised by plea to the jurisdiction, and Donald (the purported POA agent) had none because he alleged no personal injury.
Relevance to Family Law
Family cases routinely feature attempted “proxy litigation”—a parent, new spouse, or relative trying to file, argue, or control proceedings for an adult litigant (often with a power of attorney, medical POA, or generalized “authorization”). Payne is a clean appellate reminder that even if the other side fumbles a capacity attack (Rule 93 verification), you can still end the case—or the nonparty’s participation—through a standing-based jurisdictional challenge, particularly when the filer is not the injured party and is functionally engaging in unauthorized practice of law.
Case Summary
Fact Summary
Darrell Payne was the named plaintiff/appellant, but the lawsuit was functionally driven by his brother, Donald Payne, who is not a licensed attorney. Donald filed suit alleging constitutional and statutory violations arising out of a pending criminal matter involving Darrell; Donald justified his actions by attaching Darrell’s power of attorney and contending he was acting as Darrell’s agent.
The defendants answered and filed pleas to the jurisdiction asserting, among other points, that Donald lacked capacity and standing to prosecute Darrell’s claims. At the hearing, Donald identified himself as the person who signed the petition and explained he was acting under the POA. The trial court declined to allow Donald to argue on Darrell’s behalf (while giving Darrell an opportunity to speak). The trial court granted the pleas to the jurisdiction and dismissed with prejudice. Donald appealed.
Issues Decided
- Whether appellees waived a capacity challenge by failing to raise it via verified pleading under Texas Rule of Civil Procedure 93.
- Whether a nonparty/nonlawyer POA agent has standing to assert another person’s constitutional and statutory claims.
- Whether dismissal without leave to replead was proper where the standing defect was incurable.
Rules Applied
- Capacity vs. standing are distinct. Capacity is a procedural qualification; standing is a component of subject-matter jurisdiction. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845 (Tex. 2005); In re Guardianship of Archer, 203 S.W.3d 16 (Tex. App.—San Antonio 2006, pet. denied).
- Rule 93 verified pleading requirement. Capacity challenges must be raised by verified pleading or they are waived. TEX. R. CIV. P. 93(1), (2); Lovato, 171 S.W.3d at 849.
- Nonlawyers cannot represent others. A power of attorney does not confer the right to act as an attorney in court. TEX. GOV’T CODE §§ 81.101–.102; see also In re Bailey, No. 09-10-00412-CV, 2010 WL 4354021 (Tex. App.—Beaumont Nov. 4, 2010, orig. proceeding) (mem. op.).
- Standing elements and jurisdiction. Standing requires an injury to the plaintiff, traceability, and redressability; failure of any element defeats subject-matter jurisdiction and is properly raised by plea to the jurisdiction. Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477 (Tex. 2018).
- Repleading not required for incurable jurisdictional defects. Courts allow amendment unless the defect is incurable. Dohlen v. City of San Antonio, 643 S.W.3d 387 (Tex. 2022); Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835 (Tex. 2007).
Application
The Fourth Court separated the analysis the way family litigators should: first capacity (procedural; waivable), then standing (jurisdictional; not waivable).
On capacity, the court accepted the general proposition that a nonlawyer cannot represent another person in court and that a POA does not transform an agent into counsel. But the court did not reach a merits-driven capacity disposition because the defendants did not follow the procedural gatekeeping rule: no verified pleading under Rule 93. That defect waived the capacity challenge.
Standing, however, was the dispositive path. Donald was not actually a plaintiff asserting his own injuries; the pleadings did not allege any personal injury to Donald, only alleged harms to Darrell. The court held Donald could not “latch onto” Darrell’s injuries and manufacture standing merely by claiming agency under a POA. Because standing is a component of subject-matter jurisdiction, the trial court properly granted the pleas to the jurisdiction.
The court also addressed the frequent “let me amend” request. This was not a pleading-art problem that could be cured by better drafting; Donald’s problem was structural—he was not the injured party, and no amendment could change that. Remand to replead would serve no legitimate purpose.
Holding
The court held appellees waived any challenge to Donald’s capacity because they failed to raise it through a verified pleading as required by Rule 93. Capacity defects—even obvious ones—are not self-executing; they must be properly invoked.
Independently, the court held Donald lacked standing because he alleged no injury to himself and was attempting to assert his brother’s claims as a purported POA agent. That standing defect deprived the trial court of subject-matter jurisdiction, validating dismissal on the pleas to the jurisdiction. Because the standing defect was incurable as to Donald, the trial court did not err by dismissing without allowing repleading.
Practical Application
- Divorce filings “by POA” for an adult spouse are a trap. If an adult spouse is the real party in interest, a nonlawyer agent signing and prosecuting the case invites a jurisdictional attack framed as standing (and/or a procedural attack framed as capacity). Even if the capacity point is waived, Payne gives defense counsel a standing route when the filer is not the injured party.
- Custody disputes: the nonparent “driver” problem. Grandparents/partners sometimes try to prosecute or argue a SAPCR “for” a parent via “authorization.” If the nonparty is not asserting a cognizable, personal justiciable interest (and is functionally acting as counsel), Payne supports a plea to the jurisdiction based on standing.
- Temporary orders and hearings: who is allowed to be the advocate. Payne reinforces trial courts’ discretion to refuse to allow a nonlawyer to argue on behalf of another adult litigant—even if that person claims POA authority.
- Be strategic about your procedural vehicle. If you represent the responding party, do not bet everything on standing; preserve both:
- file a verified Rule 93 pleading to challenge capacity when applicable, and
- file a plea to the jurisdiction to challenge standing (which is not waivable).
- Dismissal posture matters. Where the defect is that the wrong person is attempting to sue, push the court to treat it as incurable (as to that filer) and resist “one more amendment” requests.
Checklists
When the Other Side Tries to Litigate “By Power of Attorney”
- Confirm who is listed as the plaintiff/petitioner and who signed the petition.
- Identify whether the filer alleges any personal injury/interest or only harms to someone else.
- Obtain and review the POA instrument (scope, durability, medical vs. statutory durable POA).
- Evaluate whether the situation is really a guardianship / next-friend issue (and whether statutory prerequisites are met).
- Make a record: object on the record to any nonlawyer attempting to “argue for” another party.
Defense Pleadings: Preserve Capacity and Standing Attacks
- File a plea to the jurisdiction targeting standing (injury-in-fact, traceability, redressability).
- Separately file a verified pleading under Rule 93 challenging capacity when the plaintiff is suing in a representative capacity or lacks authority to sue/appear.
- Cite the waiver rule: capacity challenges are waived absent verification; standing is not.
- Ask for dismissal with prejudice when the defect is incurable as to the filer (wrong plaintiff / no personal injury).
- Request a hearing and ensure the court rules expressly on jurisdictional grounds.
Plaintiff-Side Risk Management (Avoiding a Payne Outcome)
- Ensure the real party in interest is the one asserting the claims and signing/verifying where required.
- If the client cannot appear or lacks competence, evaluate:
- guardianship/conservatorship avenues,
- properly established next-friend procedure (where permissible), and
- retention of licensed counsel rather than proxy advocacy.
- Do not assume a POA authorizes courtroom representation; treat it as an agency tool, not a license to practice law.
- Plead facts establishing the plaintiff’s own injury and justiciable interest—do not rely on “agency” to supply standing.
Citation
Payne v. Boyd, No. 04-25-00275-CV (Tex. App.—San Antonio Mar. 25, 2026) (mem. op.).
Full Opinion
Family Law Crossover
In divorce and custody litigation, Payne can be weaponized to neutralize the “shadow litigant”—the relative or partner driving the case who is not counsel and not the party. If a nonlawyer files pleadings, signs motions, or tries to argue under a POA (or “authorization”), you can frame the dispute as standing: the proxy has no personal injury, no personal justiciable interest, and cannot confer jurisdiction by asserting someone else’s claims. Even where your opponent argues you waived “capacity” objections by not verifying a Rule 93 pleading, Payne preserves the jurisdictional kill shot: standing is nonwaivable and dispositive, allowing a plea to the jurisdiction to shut down the proxy-driven filing and force the real party (with licensed counsel, if needed) to prosecute the case correctly.
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