¶1On Motion for Rehearing
¶2The opinion of this Court was originally delivered on May 8, 1968. At that time, my dissent was noted. Motion for rehearing has been filed by the respondent. I now state the reasons for disagreeing with the holding of the Court. These reasons are well stated in the motion for rehearing.
¶3This suit was one affecting the relationship of the child to its parents. The conflict of interest is apparent on the face of the record. The Newmans’ petition for change of name shows on its face that they acted in violation of the child’s rights and the rights of its natural father by acting to change the name of the child without notice and without filing an application as is mandatory under Article 5929 V.A.C.S. Mrs. Newman and Mr. Newman were, on the face of the petition, seeking to deprive the child of his property right in and to his name and also seeking to deprive him of a relationship to his parent. Therefore, on the face of the record it is apparent that the petition did not make the minor child a party to the suit. The defect is fundamental error. In Sandoval v. Rosser, 86 Tex. 682, 26 S.W. 933, 934 (1894), the Court said: “If, however, the language [of the petition] were such as to make the minor parties (sic) to the suit, under ordinary circumstances, it could not have the effect in this case, for the reason that the guardian was adversely interested, and he could not maintain a suit for himself personally against himself as guardian.” (Emphasis added.) See Petroleum Anchor Equipment, Inc. v. Tyra, 406 S.W.2d 891 (Tex.Sup.1966).
¶4The child and the Newmans were indispensable parties to this lawsuit. As stated in Application of Gault, 387 U.S. 1, 81, 87 S.Ct. 1428, 1471, 18 L.Ed.2d 527: “Similarly, due process clearly requires timely notice of the purpose and scope of any proceeding affecting the relationship of parent and child. Armstrong v. Manzo, 380 U. S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62.”
¶5The error herein is fundamental not only because the trial court lacked jurisdiction but also because it was contrary to public policy as defined in both the Federal and State Constitutions.
¶6The Court overlooks the basic tenets set forth in Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62, when it comments that “[t]here was no denial of procedural due process in this case as there was in Armstrong v. Manzo … an *425adoption case. In this case the father had notice of the hearing on the application and participated fully therein.” The Court misses the point; the question here deals with the child’s rights, not the father’s.
¶7The Court in Armstrong, supra, stated it was elementary and fundamental that interested parties be afforded an opportunity to present their objections. It further stated:
“A fundamental requirement of due process is ‘the opportunity to be heard.’ … [i]t is an opportunity which must be granted at a meaningful time and in a meaningful manner.”
¶8In Linebaugh v. Atwater, 173 Ill. 613, 50 N.E. 1004, 1006, the Supreme Court of Illinois in an instance wherein there was a conflict of interest between a father and his children stated:
“We cannot consent to pass upon their rights in the present condition of the record. They should be represented and have a fair hearing, with an opportnity to introduce testimony.”
¶9It is beyond question that a person non sui juris represented by a next friend whose interest conflicts does not have an opportunity to present his objections and is not heard in a meaningful manner.
¶10Indeed, the child here is not only deprived of procedural rights, he is denied a substantive right, the right to be “heard.”
¶11This Court’s statement, therefore, that “no complaint was made of the failure to appoint a guardian ad litem in either the trial court or the court of civil appeals” is irrelevant. It was the child’s right and he had no opportunity to object or assign error.
¶12The Court’s reference to Cooper v. Liverman, Tex.Civ.App., 406 S.W.2d 927, emphasizes the error it has committed. The Court has stated that the child’s rights are won or lost by virtue of the acts of the other parties to the suit. Since, however, the Court cites Cooper v. Liverman, supra, with approval, it would appear that the Court does not consider the question of the conflict “appearing” to the trial court as controlling. The Court in Cooper v. Liver-man, supra, at page 931 states:
“We hold that under such circumstances, even though the matter was not called to the attention of the trial court, that nevertheless a guardian ad litem should have been appointed to represent the interests of said minors.”
¶13In Greathouse v. Fort Worth & Denver City Ry. Co., 65 S.W.2d 762, 765 (Tex.Com.App.), this Court stated:
“The minor was not bound by the failure of the next of friend to appeal.”
¶14In the instant case, where the conflict is apparent on the face of the record, why should the child be bound by the failure of the next friend to assign her own conflict as error?
¶15In Greathouse, supra, the Court states:
“The guardian ad litem or next friend can make no concessions nor can he waive or admit away any substantial rights of the minor, or consent to anything which may be prejudicial to him.”
¶16Yet we have the next friend asserting and this Court holding, pursuant to the assertion by the next friend, that the failure to object to the conflict or assign it as error on appeal is fatal to the child. This is indeed an anomalous situation. On the other hand, this Court holds that the right of appeal is constitutional, that it does not depend on statute. Board of Firemen’s Relief and Retirement Fund Trustees of Texarkana v. Hamilton, 386 S.W.2d 754, 755 (Sup.).
¶17But how is a child represented by a next friend whose interests conflict to exercise this right? Indeed, we must pity him because “he is non sui juris and altogether under the Court’s protection.” Greathouse, supra. Yet this Court holds the error of the trial court in failing to displace a next friend whose interest conflicts with a minor *426“does not differ in ultimate effect from errors in judgment which a trial court may make in deciding many other questions during the course of a trial.”
¶18I cannot see how this Court can say that the child must be denied the consequences of the error because not raised in the trial court or assigned in the appellate court by the other parties to the suit? He had no one to represent him individually to raise the error. It does differ from other errors in “ultimate effect” because a sui juris person can waive, whereas a non sui juris person has no control. This error goes to the very foundation of his right to protect himself from the “ultimate effect’ of other errors.
¶19Who is to protect the minor ? This Court forecloses a minor’s most fundamental rights. It turns his incapacity in upon him to his destruction. The other parties do not object or assign, and the trial court errs, and that’s the end of it. I respectfully submit that the trial court should have appointed a guardian ad litem then, and this Court should reverse now. Nothing less would satisfy the constitutional mandate of a meaningful hearing at a meaningful time. Armstrong v. Manzo, supra.
¶20In Armstrong v. Manzo, supra, the Court stated:
“For ‘it is plain that where the burden of proof lies may be decisive of the outcome.’ ”
¶21The Court in our case has denied to all non sui juris persons represented by an incompetent person whose conflict of interest is apparent on the face of the record the protection of the Courts. The Court has denied the child involved here the right to be heard at a meaningful time and in a meaningful manner. The very nature and substance of this Court’s holding makes relevant its applicability and effect on all persons non sui juris.
¶22In Hovey v. Elliott, 167 U.S. 409, 417-418, 17 S.Ct. 841, 844, 42 L.Ed. 215, it is stated:
“Can it be doubted that due process of law signifies a right to be heard in one’s defense? If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity whatever of being heard, would it be pretended that such an enactment would not be vio-lative of the Constitution? If this be true, as it undoubtedly is, how can it be said that the judicial department — the source and fountain of justice itself — has yet the authority to render lawful that which, if done under express legislative sanction, would be violative of the Constitution. If such power obtains, then the judicial department of the government, sitting to uphold and enforce the Constitution, is the only one possessing a power to disregard it. If such authority exists, then, in consequence of their establishment, to compel obedience to law, and to enforce justice, courts possess the right to inflict the very wrongs which they were created to prevent.” (Emphasis added).
¶23In Galpin v. Page, 85 U.S. (18 Wall.) 350, p. 368, 21 L.Ed. 959, the court said:
“It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is justly administered.” (Emphasis added by the Court.)
¶24This Court states that it is “mandatory” that a guardian ad litem be appointed when there is a conflict of interest between the person non sui juris and guardian or next friend. In the next breath it wipes out meaningful judicial protection from judicial error. Public policy, therefore, as expressed by Rule 173 appears meaningless.
¶25*427This is not a case in which the child is being taken away from its parent because of misconduct on the part of the child. There is no such issue here. Yet, even if there were such an issue, the child would he entitled to counsel in all of his basic rights in due process as pointed out in Application of Gault, 387 U.S. 1, 35-42, 87 S.Ct. 1428, 1448-1451, 18 L.Ed.2d 527. Nor is this a case where the father is guilty of inattention or misconduct as to justify such a sundering. This Court, without benefit of counsel for the child, splits the unoffending child from the unoffending parent and grants the tie of identity to a third party.
¶26In the matter of Guardianship of Faust, 239 Miss. 299, 123 So.2d 218, 219-220, the Supreme Court of Mississippi cited Bryant v. Brown, supra,151 Miss. 398, 118 So. 184, 60 A.L.R. 1325, and stated:
“Unless a parent has forfeited the right by misconduct or unfitness, he or she has the right to control the education and religious training of the child. The Federal and State Constitutional guarantees of liberty include not only the right to establish a home and bring up children … ”
¶27and at page 221:
“The agencies of our democratic government are obligated to preserve that right, which is not recognized in a totalitarian society.”
¶28Constitutional grounds are plainly in issue where an unoffending child and unof-fending parent’s relationship is granted to a third party, whether the superficial characterization of the matter is change of name or otherwise.
¶29The plain sense of the matter stated above on constitutional grounds is reiterated and stated on substantive grounds in Payne v. Jones, 415 S.W.2d 57 (Sup.Ct. Ark.1967), wherein the Supreme Court of Arkansas stated:
“ … the right of natural parents to the custody of their children, as against strangers, is ‘one of the highest natural rights, and the state cannot interfere with this right simply to better the moral and temporal welfare of the child as against the unoffending parent.’ ”
¶30If a parent has no more than a “protecti-ble interest” in a child, then indeed the State may act to sever the relations of an unoffending parent and unoffending child in favor of a third party or the State on the relative ground of best interest. As stated before, this is indeed the theory of totalitarian states.
¶31Under this theory the child ceases to be the natural extension of the parent and becomes a vassal of the State whose familial relationship is to be subordinated to his best interest, which best interest is to be determined by the State or judge accordingly as he is satisfied by the evidence as to where the best interest lies, based upon current State values.
¶32The Court overlooks the fact that it is not simply dealing with a change of name, but instead more essentially and basically with the relationship of a parent and child. It is severing the identity of the child and the parent and granting the association to a third party. The Court has indeed confused the priority of interests. The State has the protectible interest, the parent and child the higher constitutional interest. The protectible interest of the State is exercised through the police power which cannot be used to positively destroy the familial relationship where there is no unfitness or abandonment. It can be used to correct abuses. The judgment of the Court of Civil Appeals should be affirmed.