                                  NO. 12-16-00124-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

WILLIAM FRANK BYERLEY,                               §   APPEAL FROM THE
INDIVIDUALLY AND AS
INDEPENDENT EXECUTOR OF THE
ESTATE OF FRANCIS WILLIAM
BYERLEY, DECEASED,
APPELLANT

V.                                                   §   COUNTY COURT AT LAW NO. 1

CAROL MCCULLEY, INDIVIDUALLY
AND AS REPRESENTATIVE OF THE
ESTATE OF WINNIE ALINE
BYERLEY, DECEASED,
APPELLEE                                             §   ANGELINA COUNTY, TEXAS

                                            OPINION
       William Frank Byerley, individually and as independent executor of the estate of Francis
William Byerley, deceased, appeals from the denial of his petition for bill of review contesting
the trial court’s order admitting to probate the will of Winnie Aline Byerley as a muniment of
title nineteen years after her death. In two issues, Byerley contends the trial court erred in
denying his bill of review because Carol McCulley, representative of Winnie’s estate, was in
default for failing to submit Winnie’s will for probate within four years of her death, and
McCulley did not notify Byerley by appropriate service of process. We reverse the trial court’s
order denying Byerley’s petition for bill of review, render judgment granting the petition for bill
of review, and remand the case to the trial court.


                                          BACKGROUND
       Winnie was married to Francis. Two of their three children were living at the time
Winnie died in 1995, Byerley and McCulley. Francis died in late 2014, and Byerley is the
executor of his father’s estate. After her father died, McCulley located Winnie’s will and
presented it for probate as representative of Winnie’s estate. Winnie’s will, which named
McCulley as the sole beneficiary, was admitted to probate as a muniment of title on November
24, 2014.
       About a year later, Byerley filed a petition for statutory bill of review alleging that the
court committed substantial error when it admitted Winnie’s will to probate and asking the court
to set aside its prior order and deny probate of the will. The trial court denied the petition.


                                          BILL OF REVIEW
       In his second issue, Byerley contends the trial court erred in denying his petition for bill
of review because McCulley did not notify him of the original probate proceeding by service of
process. Relying on Texas Estates Code Section 258.051, he argues that the notice McCulley
provided, citation by posting, was insufficient.
Standard of Review
       We review a trial court’s ruling on a petition for bill of review for an abuse of discretion.
Woods v. Kenner, 501 S.W.3d 185, 190 (Tex. App.−Houston [1st Dist.] 2016, no pet.); Ablon v.
Campbell, 457 S.W.3d 604, 608 (Tex. App.−Dallas 2015, pet. denied). A trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner, or without reference to guiding rules
and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
       The meaning of a statute is a legal question, which we review de novo to ascertain and
give effect to the legislature’s intent. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433,
437 (Tex. 2009). Where text is clear, text is determinative of that intent. Id. This general rule
applies unless enforcing the plain language of the statute as written would produce absurd
results. Id. Only when the words chosen by the legislature are ambiguous do we resort to rules
of construction or extrinsic aids. Id.
Applicable Law
       The estates code provides that an interested party may file a bill of review to have an
order or judgment rendered in a probate proceeding revised and corrected on a showing of error
in the order or judgment. TEX. EST. CODE ANN. § 55.251(a) (West 2014). The interested party is
required to allege and prove that the trial court committed substantial error. Ablon, 457 S.W.3d
at 609. The error need not appear on the face of the record; but if it does not, the party filing the



                                                   2
bill of review must prove the error at trial by a preponderance of the evidence. Id. When a will
is admitted to probate more than four years after the testator’s death, the applicant must give
notice by service of process to each of the testator’s heirs whose address can be ascertained with
reasonable diligence. TEX. EST. CODE ANN. § 258.051(a) (West 2014).
Analysis
       Although the current notice statute requires service of process to each heir, the record
establishes that McCulley provided notice only by posting.         She argues that method was
appropriate because her application to probate Winnie’s will, although filed in 2014, was
governed by the version of the probate code that was in effect when Winnie died in 1995. A
review of the statutory history is necessary.
       In 1995, Section 128(a) of the probate code authorized service of citation by posting
where an application for probate of a written will is produced in court, without regard to the time
period between the testator’s death and the filing of the application. Act of March 17, 1955, 54th
Leg., R.S., ch. 55, § 128, 1955 Tex. Gen. Laws 88, 127, repealed by Act of May 26, 2009, 81st
Leg., R.S., ch. 680, § 10, 2009 Tex. Gen. Laws 1511, 1730 (current version at TEX. EST. CODE
ANN. § 258.001 (West 2014)). In 1999, the probate code was amended by the addition of
Section 128B to require service of process to each of the testator’s heirs whose address can be
ascertained with reasonable diligence when a will is to be probated more than four years after the
death of the testator. Act of May 27, 1999, 76th Leg., R.S., ch. 855, § 2, 1999 Tex. Gen. Laws
3527, 3527, repealed by Act of May 26, 2009, 81st Leg., R.S., ch. 680, § 10, 2009 Tex. Gen.
Laws 1511, 1730 (current version at TEX. EST. CODE ANN. § 258.051 (West 2014)).
       At the time of the 1999 amendment, the legislation included a savings clause providing
that the changes made by the amendment apply only to the estate of a person who dies on or after
September 1, 1999, and the estate of a person who dies before September 1, 1999 is governed by
the law in effect on the date of the person’s death. Act of May 27, 1999, 76th Leg., R.S., ch.
855, § 13, 1999 Tex. Gen. Laws 3527, 3531. Accordingly, McCulley argues that, through
application of the 1999 savings clause, pre-1999 law applies in the probate of Winnie’s will
because she died before September 1, 1999. Byerley responds that, due to recent legislative
action, the savings clause no longer applies.
       Effective January 1, 2014, the Texas Probate Code was repealed and recodified as the
Texas Estates Code. See Act of May 19, 2011, 82nd Leg., R.S., ch. 823, §§ 1.01-4.03, 2011 Tex.



                                                3
Gen. Laws 1901, 1901-2095; Act of May 26, 2009, 81st Leg., R.S., ch. 680, §§ 1-12, 2009 Tex.
Gen. Laws 1511, 1511-1730. The new codification is “without substantive change,” and its
purpose is to make the law “more accessible and understandable.” See TEX. EST. CODE ANN.
§ 21.001 (West 2014). The notice requirement previously found in probate code Section 128B,
requiring service of process on heirs when the will is probated more than four years after the
testator’s death, is now codified in estates code Section 258.051(a).       See id. § 258.051(a).
Byerley argues that, because the new statute reflects no commentary limiting its application, the
1999 savings clause did not survive the recodification.
       When the probate code was repealed, Section 128B ceased to exist. See Fleming Foods
of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex. 1999). The legislature included specific
language stating that the act is intended as a recodification only, and no substantive change in
law is intended. Act of May 26, 2009, 81st Leg., R.S., ch. 680, § 11, 2009 Tex. Gen. Laws 1511,
1730. McCulley argues that the savings clause is part of the “substance” of the statute and
therefore remains part of the recodification. We disagree. The savings clause is not found in the
text of the statute itself. It is found in a separate section of the session laws and printed below
Section 128B, under the heading “Historical and Statutory Notes” in the published code. In this
instance, the substance of the statute is the text requiring a specific type of notice in certain
situations. The specified notice has been the law since 1999, and the recodification made no
substantive change to Section 128B’s notice requirements. Prior law and legislative history
cannot be used to alter or disregard the express terms of a code provision when its meaning is
clear from the code when considered in its entirety. Rylander, 6 S.W.3d at 284. Furthermore, if
the savings clause is considered to be part of the codified statute, we reach the same conclusion.
Every word excluded from a statute must be presumed to have been excluded for a purpose.
Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981). The plain language of
the statute makes no reference to decedents who died before 1999.
       A savings clause is a clause providing that former law is continued in effect for certain
purposes. City of Houston v. The Houston Firefighters’ Relief and Retirement Fund, 196
S.W.3d 271, 284 (Tex. App.−Houston [1st Dist.] 2006, no pet.). A savings clause is necessary to
avoid a retroactive application of a statute only if the newly enacted statute repeals a cause of
action or revokes a special remedy. Id. The 1999 savings clause no doubt aided in the transition
to the new, more stringent notice requirement, allowing notice by posting in cases where the



                                                4
decedent died not long before the new Section 128B went into effect. The notice requirement as
unambiguously stated in Section 258.051 has been the law since 1999. By its failure to include
language carrying forward the savings clause, the legislature may have determined that any
transition period was complete. It could have repeated the savings clause in the 2014 law, but
chose not to. There is no indication the legislature wished to retain the savings clause. See Ex
parte Harbin, 297 S.W.3d 283, 286 n. 5 (Tex. Crim. App. 2009) (Reviewing the application of a
savings clause, which it characterized as uncodified, the court reasoned that the savings clause
was effectively repealed when the codified portion of the statute was repealed.). The repeal of a
statute without a savings clause in the repealing law requires the remedies under the former
statute to give way to those provided for in the new one. See Phil H. Pierce Co. v. Watkins, 263
S.W. 905, 907 (Tex. 1924).
       Accepting McCulley’s argument, anyone wanting to know what the law requires would
have to consult not only the existing law, but the former, repealed law. Rylander, 6 S.W.3d at
285. As the supreme court stated, “[c]itizens, lawyers who represent them, judges, and members
of the Legislature should not be required to research the law that preceded every codification to
determine if there had been some change and accordingly whether the prior law rather than the
current law prevails.” Id. When there is no room to interpret or construe the current law as
embodying the old, we must give full effect to the current law. Id. at 286. We conclude that the
1999 savings clause accompanying probate code Section 128B has effectively been repealed.
       McCulley also asserts that Byerley had actual knowledge of her application to probate the
will through his previous attorney. That attorney testified that McCulley’s previous attorney had
notified him when Winnie’s will had been located and indicated that he intended to have it
probated. This knowledge, even if imputed to Byerley, does not meet or supplant statutory
notice requirements. See Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990).
       McCulley did not comply with the service requirements of Section 258.051. See TEX.
EST. CODE ANN. § 258.051(a). Therefore, the trial court committed substantial error when it
concluded otherwise. The trial court abused its discretion in failing to grant Byerley’s petition
for bill of review. See id. § 55.251(a). We sustain Byerley’s second issue.1




       1
           Due to our disposition of issue two, we need not address Byerley’s first issue. See TEX. R. APP. P. 47.1.


                                                          5
                                                   DISPOSITION
         We reverse the trial court’s order denying Byerley’s petition for bill of review, render
judgment that the bill of review is granted, and remand the case to the trial court for further
proceedings.

                                                                 BRIAN HOYLE
                                                                    Justice




Opinion delivered February 15, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




                                                          6
                                 COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                         FEBRUARY 15, 2017


                                         NO. 12-16-00124-CV


     WILLIAM FRANK BYERLEY, INDIVIDUALLY AND AS INDEPENDENT
   EXECUTOR OF THE ESTATE OF FRANCIS WILLIAM BYERLEY, DECEASED,
                              Appellant
                                 V.
    CAROL MCCULLEY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE
            ESTATE OF WINNIE ALINE BYERLEY, DECEASED,
                              Appellee


                           Appeal from the County Court at Law No 1
                        of Angelina County, Texas (Tr.Ct.No. 286-15-CV)

                    THIS CAUSE came to be heard on the oral arguments, appellate record, and
briefs filed herein, and the same being considered, it is the opinion of this court that there was
error in the order of the court below.
                    It is therefore ORDERED, ADJUDGED and DECREED that the trial court’s
order denying the petition for bill of review filed by William Frank Byerley, individually and as
independent executor of the estate of Francis William Byerley, deceased, is reversed, judgment
is rendered that the petition for bill of review is granted, and the cause is remanded to the trial
court for further proceedings in accordance with this court’s opinion.
                   It is further ORDERED that all costs in this cause expended in this court be,
and the same are, adjudged against the Appellee, CAROL MCCULLEY, INDIVIDUALLY
AND AS REPRESENTATIVE OF THE ESTATE OF WINNIE ALINE BYERLEY,
DECEASED, for which let execution issue; and that this decision be certified to the court below
for observance.
                   Brian Hoyle, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
