Rule 173.Guardian Ad Litem
Last amended February 1, 2005 · Last verified June 28, 2026
Full Text of Rule 173
Notes and Comments
Comment to 2004 change: 1. The rule is completely revised. 2. This rule does not apply when the procedures and purposes for appointment of guardians ad litem (as well as attorneys ad litem) are prescribed by statutes, such as the Family Code and the Probate Code, or by other rules, such as the Parental Notification Rules. 3. The rule contemplates that a guardian ad litem will be appointed when a party’s next friend or guardian appears to have an interest adverse to the party because of the division of settlement proceeds. In those situations, the responsibility of the guardian ad litem as prescribed by the rule is very limited, and no reason exists for the guardian ad litem to participate in the conduct of the litigation in any other way or to review the discovery or the litigation file except to the limited extent that it may bear on the division of settlement proceeds. See Jocson v. Crabb, 133 S.W.3d 268 (Tex. 2004) (per curiam). A guardian ad litem may, of course, choose to review the file or attend proceedings when it is unnecessary, but the guardian ad litem may not be compensated for unnecessary expenses or services. 4. Only in extraordinary circumstances does the rule contemplate that a guardian ad litem will have a broader role. Even then, the role is limited to determining whether a party’s next friend or guardian has an interest adverse to the party that should be considered by the court under Rule 44. In no event may a guardian ad litem supervise or supplant the next friend or undertake to represent the party while serving as guardian ad litem. 5. As an officer and advisor to the court, a guardian ad litem should have derived judicial immunity. 6. Though an officer and adviser to the court, a guardian ad litem must not have ex parte communications with the court. See Tex. Code of Jud. Conduct, Canon 3. 7. Because the role of guardian ad litem is limited in all but extraordinary situations, and any risk that might result from services performed is also limited, compensation, if any is sought, should ordinarily be limited. 8. A violation of this rule is subject to appropriate sanction.
Plain-English Summary
A child or an incapacitated person usually sues through a next friend or guardian. Rule 173 steps in when that representative's own interest collides with the party's — most often over how a settlement gets divided. The court must appoint a guardian ad litem only when the next friend or guardian appears to have an adverse interest or when the parties agree to one.
The guardian ad litem is an officer and advisor to the court, not a second lawyer for the case. The job is to decide whether the representative's interest is adverse and whether a proposed settlement serves the party's best interest, and to advise the court. The guardian generally stays out of discovery and trial unless the court orders otherwise in writing.
Pay must be a reasonable hourly fee for necessary work, never a percentage of the judgment or settlement, and the court can tax it as costs. The rule does not apply where a statute — such as the Family Code or the Estates Code — or another rule already governs the appointment.
Frequently Asked Questions
When must a Texas court appoint a guardian ad litem under Rule 173?
Only when the party's next friend or guardian appears to have an interest adverse to the party, or when the parties agree. A common trigger is a dispute over how settlement money is split.
How is a guardian ad litem paid in Texas?
By a reasonable hourly fee for necessary services and expenses. The court cannot set the fee as a percentage of the recovery, and it may tax the fee as costs of court.
Does Rule 173 apply in family law and probate cases?
No. The rule steps aside when a statute like the Family Code or Estates Code, or another rule, governs the appointment of a guardian or attorney ad litem.