Christopher Shaun Pratt v. the State of Texas for the Protection of Tahana Pratt-Lopez ( 2023 )

NUMBER 13-22-00030-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CHRISTOPHER SHAUN PRATT, Appellant,
v.
THE STATE OF TEXAS FOR
THE PROTECTION OF
TAHANA PRATT-LOPEZ, Appellee.
On appeal from the 274th District Court
of Comal County, Texas.
CONCURRING MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Silva
Concurring Memorandum Opinion by Justice Silva
The majority correctly notes that appellant’s stated issue—although asserted as a
matter of standing—does not challenge Tahana’s standing to bring the suit, but instead
challenges the local district attorney’s authority to represent her. See Austin Nursing Ctr.,
Inc. v. Lovato, 171 S.W.3d 845, 848–49 (Tex. 2005) (discussing standing); see also TEX.
R. CIV. P. 12 (Attorney to Show Authority). However, because I would conclude that
appellant waived this issue, I write separately to concur with the majority.
A challenge to the prosecuting attorney’s authority to act on a party’s behalf must
be made by sworn motion before the parties announce ready for trial in accordance with
Texas Rule of Civil Procedure 12. See TEX. R. CIV. P. 12; Kindle v. Wood Cnty. Elec. Co-
op, Inc., 151 S.W.3d 206, 210 (Tex. App.—Tyler 2004, pet. denied) (“Rule 12 is the
exclusive method for questioning the authority of an attorney to represent a party in any
court proceeding.”) Failing to follow Rule 12 results in waiver. Kindle, 151 S.W.3d at 210(overruling an appellant’s challenge to an attorney’s authority because no such challenge
was brought during trial phase).
Alternatively, appellant may be arguing that the prosecuting attorney stepped into
Tahana’s shoes when it filed the suit, rather than as the attorney representing her.
However, such an argument would implicate capacity to sue, not standing. See Lovato,
171 S.W.3d at 848 & n.1 (discussing the distinctions between capacity and standing). A
challenge to capacity must also be raised by a verified pleading and may be waived by
failing to properly raise the issue. See TEX. R. CIV. P. 93(1); Lovato, 171 S.W.3d at 849;
Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 56 (Tex. 2003) (“An argument that an
opposing party does not have the capacity to participate in a suit can be waived by a
party’s failure to properly raise the issue in the trial court.”).
Regardless of whether appellant’s argument is properly classified as one of
authority or capacity, appellant was required to present his challenge through a verified
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pleading or motion, neither of which was done. See TEX. R. CIV. P. 12; id. R. 93(1). Here,
because appellant’s challenge was not raised until after the judgment was signed, the
issue has not been preserved for appellate review. See id. R. 12; Sibley, 111 S.W.3d at
56; Kindle, 151 S.W.3d at 210.
Accordingly, I would not indulge appellant’s challenge to the trial court’s subject
matter jurisdiction vis-à-vis Tahana’s standing but would instead conclude that the issue,
as correctly identified, was waived. I agree with the remainder of the majority’s analysis
and conclusion.
CLARISSA SILVA
Justice
Delivered and filed on the
27th day of April, 2023.
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