Affirmed and Opinion filed June 12, 2014.




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-13-00717-CV

                       LISA MURDOCK SMALLEY, Appellant
                                               V.
    ERIC C. SMALLEY, INDEPENDENT ADMINISTRATOR OF THE
    ESTATE OF JOHN HUBERT SMALLEY, III, DECEASED, Appellee

                          On Appeal from Probate Court No. 3
                                  Harris County, Texas
                           Trial Court Cause No. 396,118-402

                                      OPINION


      Appellant Lisa Murdock Smalley asks this court to set aside its previous
opinion disposing of the issues in this case1 due to the subsequent issuance of a
purportedly controlling Supreme Court decision.2 In two issues, Lisa complains


      1
          Smalley v. Smalley, 399 S.W.3d 631 (Tex. App.—Houston [14th Dist.] 2013, no pet.).
      2
          Hillman v. Maretta, 133 S.Ct. 1943 (2013).
that the probate court dismissed her bill of review and writ of audita querela for
lack of subject matter jurisdiction. We affirm.

                                      Background

       John Hubert Smalley, III, Lisa’s former husband, was a federal employee
covered by the Federal Employees’ Retirement System who participated in a Thrift
Savings Plan.3 Smalley v. Smalley, 399 S.W.3d 631, 634 (Tex. App.—Houston
[14th Dist.] 2013, no pet.). John designated Lisa as the beneficiary of the Thrift
Savings Plan and also designated her as the beneficiary of a number of savings
bonds. Id. John and Lisa divorced in September 2008. Id. The parties’ divorce
decree incorporated a mediation agreement signed by the parties, in which Lisa
agreed that John would be awarded the Thrift Savings Plan and the savings bonds.
Id.

       John died intestate in February 2010. Id. Thereafter, Lisa submitted a
request for distribution of the funds from the Thrift Savings Plan, claiming to be
the beneficiary. Id. The administrator of the Thrift Savings Plan distributed the
proceeds to Lisa. Id. Lisa also obtained possession of the savings bonds. Id. at
635. Appellee Eric C. Smalley, in his capacity as independent administrator of
John’s estate, filed a petition in the probate court seeking to enforce the terms of
John and Lisa’s divorce decree as to the savings bonds and proceeds distributed
from the Thrift Savings Plan. Id. Eric asked the trial court to order Lisa to deliver
to Eric the savings bonds and the proceeds from the Thrift Savings Plan. Id.

       The parties filed cross-motions for summary judgment. Id. Eric asserted
that the agreed divorce decree operated as a waiver of all Lisa’s rights to the
savings bonds and the proceeds from the Thrift Savings Plan. Id. The trial court
       3
         A Thrift Savings Plan is a type of retirement savings account for federal employees
administered by the Federal Retirement Thrift Investment Board. Smalley, 399 S.W.3d at 634.

                                             2
agreed, granted summary judgment in Eric’s favor, and denied Lisa’s motion for
summary judgment. Id.

       On appeal, we held that the portions of the divorce decree relating to the
proceeds from the Thrift Savings Plan were not preempted by federal law requiring
distribution of the proceeds to the designated beneficiary because Lisa
contractually had waived her rights to those proceeds. See id. at 637-40. We
similarly held that the portions of the divorce decree relating to the savings bonds
were not preempted by federal law requiring enforcement of the designation of
Lisa as the “payable on death” beneficiary because Lisa also contractually had
waived her rights to the savings bonds. See id. at 640. We issued our opinion and
judgment affirming the probate court’s judgment on March 28, 2013. Lisa did not
file a petition for review in the Texas Supreme Court. We issued our mandate on
June 7, 2013, commanding the probate court to “recognize,” “obey,” and “execute”
our judgment.

       On June 10, Lisa filed an “Original Petition for Statutory Bill of Review,
and, in the Alternative, Petition for Writ Audita Querela” (Petition), requesting the
trial court to enjoin enforcement of the mandate and revise this court’s judgment4
on the ground that the Supreme Court’s opinion Hillman v. Maretta, 133 S.Ct.
1943 (2013), issued June 3, is purportedly controlling with regard to the issues in
this case.5 Eric subsequently filed a motion to dismiss the Petition for lack of

       4
         Lisa argues that she is attacking the probate court’s judgment. As discussed below, she
is actually attacking this court’s judgment because when we affirmed the probate court’s
judgment, it became our judgment.
       5
         Eric disputes that Hillman is controlling. At issue in that case was whether a Virginia
statute was preempted by the Federal Employees’ Group Life Insurance Act (FEGLIA), which
establishes a life insurance program for federal employees. Hillman, 133 S.Ct. at 1947. The
Virginia statute created a cause of action rendering a former spouse liable for insurance proceeds
to the party who would have received them under applicable law but for the beneficiary
designation. Id. FEGLIA, however, created a scheme giving priority to the designated
                                                3
jurisdiction, which the trial court granted.6

                                         Discussion
       In two issues, Lisa complains that the trial court erred in concluding it
lacked jurisdiction over the Petition. As an initial matter, Lisa argues there was no
basis in law for Eric to move to dismiss the Petition and thus the trial court should
not have considered Eric’s motion. However, Eric moved to dismiss the Petition
on jurisdictional grounds, arguing the probate court only had jurisdiction to obey
this court’s mandate and comply with our judgment.

       A motion to dismiss based on a lack of subject matter jurisdiction is the
functional equivalent of a plea to the jurisdiction challenging the trial court’s
authority to determine the subject matter of a cause of action. Lone Star Coll. Sys.
v. Immigration Reform Coal. of Tex. (IRCOT), 418 S.W.3d 263, 267 (Tex. App.—
Houston [14th Dist.] 2013, pet. filed). The purpose of a plea to the jurisdiction is
to defeat a cause of action without regard to whether the claims asserted have
merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We
therefore conclude that it was proper for the probate court to consider Eric’s
motion to dismiss because it challenged the trial court’s subject matter jurisdiction.

       Whether a trial court has subject matter jurisdiction is a question of law we
review de novo. City of Houston v. Williams, 353 S.W.3d 128, 133 (Tex. 2011).
We first look to the pleadings to determine if the pleader has alleged facts that

beneficiary and underscoring that “the employee’s ‘right’ of designation ‘cannot be waived or
restricted.’” Id. at 1951-52. The Court held that FEGLIA preempted the Virginia statute. Id. at
1955. Eric argues Hillman would not govern this case even if it had been decided before our
2013 opinion because Hillman did not involve a contractual waiver of the former spouse’s rights
as a designated beneficiary to death benefits. However, we need not decide whether Hillman
would have been controlling if it had been decided before we issued the 2013 opinion because
Eric’s motion to dismiss operated as a plea to the jurisdiction and we may not reach the merits of
Lisa’s claims. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
       6
           Eric also sought sanctions. The trial court denied that request.

                                                   4
affirmatively demonstrate the court’s jurisdiction to hear the cause. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe the
pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and accept
as true the factual allegations in the pleadings. Id. The allegations found in the
pleadings may affirmatively demonstrate or negate the court’s jurisdiction. City of
Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). If the pleadings do neither, it
is an issue of pleading sufficiency, and the plaintiff should be given an opportunity
to amend the pleadings. Id.

       I.      No Jurisdiction Over Bill of Review

       Lisa argues the trial court erred in dismissing the Petition because she timely
filed a bill of review to have errors in the probate court’s judgment “revised and
corrected” under section 31 of the Probate Code. See Tex. Prob. Code § 31 (now
codified in substantively similar language at Tex. Est. Code § 55.251).7 Eric
argues that the Petition is actually an attack on this court’s judgment and mandate
and the probate court lacked jurisdiction to set aside our judgment and disobey our
mandate.

       The jurisdiction of all Texas courts derives from the Texas Constitution and
state statutes. In re Allcat Claims Serv., L.P., 356 S.W.3d 455, 459-60 (Tex.
2011).      Absent an express constitutional or statutory grant, a court lacks
jurisdiction to decide any case. Id. Generally, a trial court may correct or revise its
judgment only during the period of its plenary power,8 which is within thirty days

       7
         When Lisa filed the Petition, the Probate Code, which subsequently was recodified into
the Estates Code, was still in effect. For purposes of this opinion, we cite the former sections of
the Probate Code that were in effect at the time of the above-referenced proceedings. For a
disposition table of where the relevant statutes are now codified, see Texas Estates Code Table 1,
Disposition Table.
       8
      See Tex. Dep’t of Ins., Div. of Workers’ Comp. v. Albertson’s Inc., No. 2-08-205-CV,
2009 WL 736694, at *1 n.2 (Tex. App.—Fort Worth Mar. 19, 2009, no pet.) (mem. op.).
                                                5
after the judgment is signed unless a motion extending the trial court’s plenary
power has been filed. Tex. R. Civ. P. 329b(d). If no party to a judgment files a
motion extending the trial court’s plenary power, the trial court loses subject matter
jurisdiction thirty days after the judgment is signed and thereafter has no power to
set aside a judgment.9 In re Roberts, No. 04-12-00160-CV, 2012 WL 2835204, at
*3 (Tex. App.—San Antonio July 11, 2012, no pet.) (mem. op.) (citing Tex. R.
Civ. P. 329b(f)). An exception to this rule applies to equitable bills of review for
sufficient cause.10 Id. Other exceptions may be created by statute. See Allcat
Claims Serv., 356 S.W.3d at 459-60 (noting jurisdiction may be created by statute).

       Former section 31 of the Probate Code, applicable at the time the Petition
was filed, provided for a statutory bill of review as follows, in relevant part:

       Any person interested may, by a bill of review filed in the court in
       which the probate proceedings were had, have any decision, order, or
       judgment rendered by the court, or by the judge thereof, revised and
       corrected on showing error therein; . . . and no bill of review shall be
       filed after two years have elapsed from the date of such decision,
       order, or judgment.
Tex. Prob. Code § 31. Accordingly, section 31 extends the trial court’s ability to
exercise jurisdiction to correct or revise errors in “any decision, order, or judgment
rendered by the court” when an interested person files a bill of review in a timely
However, a court may correct a clerical error in a judgment at any time. Tex. R. Civ. P. 329b(f).
       9
          Although a probate court’s jurisdiction continues over the administration of an estate
until the estate is disposed of, see Probate Code section 2(e), that continuing jurisdiction does not
alter the court’s plenary power over final judgments. See Walker v. Traylor, No. 01-09-01098-
CV, 2011 WL 1758424, at *3 (Tex. App.—Houston [1st Dist.] May 5, 2011, no pet.) (mem. op.).
       10
          Equitable bill of review plaintiffs generally must plead and prove a meritorious defense
to the underlying cause of action that they were prevented from making by the fraud, accident or
wrongful act of the opposing party or official mistake, unmixed with any fault or negligence on
their own part. Mabon Ltd. v. Afri-Carib Enters., 369 S.W.3d 809, 812 (Tex. 2012). Courts
narrowly construe the grounds on which a plaintiff may obtain an equitable bill of review due to
Texas’s fundamental public policy favoring the finality of judgments. Id. Lisa’s bill of review
was filed pursuant to section 31 only and not on equitable grounds.

                                                 6
manner.    We must construe section 31 to determine how broad its grant of
jurisdiction extends.

      In construing statutory language, our primary objective is to ascertain and
give effect to the legislature’s intent. Molinet v. Kimbrell, 356 S.W.3d 407, 411
(Tex. 2011); LasikPlus of Tex., P.C. v. Mattioli, 418 S.W.3d 210, 220 (Tex.
App.—Houston [14th Dist.] 2013, no pet.). “Enforcing the law as written is a
court’s safest refuge in matters of statutory construction.” Entergy Gulf States, Inc.
v. Summers, 282 S.W.3d 433, 443 (Tex. 2009). The plain meaning of the text,
given the context of the statute as a whole, provides the best expression of
legislative intent. Molinet, 356 S.W.3d at 411; LasikPlus, 418 S.W.3d at 220. We
presume that every word was deliberately chosen and that excluded words were
intentionally excluded. Harris Cnty. Sheriff’s Civil Serv. Comm’n v. Guthrie, 423
S.W.3d 523, 529 (Tex. App.—Houston [14th Dist.] 2014, pet. filed). Thus, when
the text of the statute is clear and unambiguous, we apply the statute’s words
according to their plain and common meaning unless a contrary intention is
apparent from the statute’s context. City of Houston v. Bates, 406 S.W.3d 539,
543-44 (Tex. 2013).

      The circumstances over which the trial court may exercise jurisdiction under
section 31 are limited to those set out in the plain language of the statute. The
jurisdictional grant in the statute does not encompass judgments entered by any
court other than the one that rendered the judgment in the probate proceeding, i.e.,
“any . . . judgment rendered by the court . . . in which the probate proceedings
were had.” See Tex. Prob. Code § 31 (emphasis added). The word “the” in the
statute refers to the particular court that presided over the probate proceedings. See
The American Heritage Dictionary 1259 (2d coll. ed. 1991) (defining “the” as
“denot[ing] particular, specified persons or things”). We conclude that section 31,

                                          7
under its plain language, allows an interested person to file a bill of review asking
a court presiding over probate proceedings11 to correct or revise errors only in its
own judgment (or decision or order) within two years after the date of the
judgment.

       In the Petition, Lisa asserted the probate court in its judgment erroneously
awarded the savings bonds and the proceeds from the Thrift Savings Plan to the
estate. In support of this argument, Lisa notes that we did not have the benefit of
the Hillman case when we issued the 2013 opinion and that under the Hillman
case, the proceeds belong to her. At the time we affirmed the probate court’s
judgment, it became this court’s judgment. See Crouch v. McGaw, 134 Tex. 633,
637, 138 S.W.2d 94, 96 (1940) (“[T]he affirmance of the judgment of the trial
court made it the judgment of this court.”); Hous. Oil Co. of Tex. v. Vill. Mills Co.,
123 Tex. 253, 259, 71 S.W.2d 1087, 1089 (1934) (“[A]ffirmance of the trial
court’s judgment . . . ma[d]e that judgment the judgment of this court.”). Once we
issued the mandate, the trial court was bound to comply with our judgment. See
Tex. R. App. P. 51.1(b); see also Whitmire v. Greenridge Place Apartments, 333
S.W.3d 255, 261 (Tex. App.—Houston [1st Dist.] 2010, pet. dism’d).

       Because the bill of review assails our 2013 opinion, judgment, and mandate,
we conclude Lisa improperly seeks to set aside our judgment and mandate under
section 31. Section 31 authorized the probate court only to revise or correct its
own judgment. Section 31 did not grant the probate court jurisdiction to set aside
our judgment or disobey our mandate. Accordingly, the Petition affirmatively
negates the probate court’s jurisdiction over the bill of review.


       11
          Under the Probate Code, depending on the circumstances, a county court, county court
at law, probate court, or district court may exercise jurisdiction over probate proceedings. See
Tex. Prob. Code §§ 3(g), 4A-4H.

                                               8
       II.     No Jurisdiction Over Writ of Audita Querela

       In her second issue, Lisa argues the probate court erred in dismissing Lisa’s
writ of audita querela for lack of jurisdiction. Audita querela is, or was, a “writ
available to a judgment debtor who seeks a rehearing of a matter on grounds of
newly discovered evidence or newly existing defenses.” McBride v. State, 114
S.W.3d 556, 557 (Tex. App.—Austin 2002, no pet.) (citing Black’s Law
Dictionary 126 (7th ed. 1999)). As set forth above, once the trial court’s plenary
power expires, it no longer has subject matter jurisdiction except in limited
circumstances. See Roberts, 2012 WL 2835204, at *3. The writ of audita querela
is a direct attack on our judgment. Lisa has pointed to no law extending the
probate court’s jurisdiction to allow her to attack an appellate court’s judgment
through the vehicle of a writ of audita querela filed in the probate court, and we
have found none.12 See Allcat Claims Serv., 356 S.W.3d at 459-60 (noting Texas
courts lack subject matter jurisdiction without an express constitutional or statutory
grant). We conclude the probate court did not have jurisdiction to set aside our


       12
          Lisa has not cited and our research has not revealed any authority showing that the writ
of audita querela would be available to her as a remedy under Texas law. We have found no
civil cases in Texas where the writ was used. We have found only three references to the writ in
the context of civil cases in Texas. In the first, the Texas Supreme Court, in 1877, noted that a
motion to set aside the levy and sale of land had replaced “a proceeding of audita querela.” See
Cook v. Sparks, 47 Tex. 28, 33 (1877). The second case noted at common law an “audita
querela was no supersedeas and did not stop execution” of a judgment in the absence of a bond.
See Heath v. Garrett, 50 Tex. 264, 269 (1878). In the third case, the supreme court noted the
writ is not available to correct a judgment for costs. See Patterson v. Hall, 30 Tex. 464, 465
(1867). The writ has been abolished in federal civil cases. Fed. R. Civ. P. 60(e); see McBride,
114 S.W.3d at 557. In the criminal context, sister courts have held that a criminal defendant may
not collaterally attack a criminal conviction through a writ of audita querela because the proper
mechanism to do so is by writ of habeas corpus. See, e.g., Ex parte Mendenhall, 209 S.W.3d
260, 261 (Tex. App.—Waco 2006, no pet.); McBride, 114 S.W.3d at 557. Similarly, in federal
criminal cases, courts have expressed doubts about whether it survives as a post-conviction
remedy. McBride, 114 S.W.3d at 557 (citing United States v. Banda, 1 F.3d 354, 356 (5th Cir.
1993) and United States v. Reyes, 945 F.2d 862, 865 (5th Cir. 1991)). However, we need not
decide whether the writ is an available remedy under Texas law.

                                                9
judgment and mandate through the writ of audita querela.

       Because the Petition affirmatively negates the probate court’s jurisdiction
over the bill of review and writ of audita querela, we overrule Lisa’s first and
second issues and affirm the judgment of the trial court dismissing the Petition.13




                                            /s/    Martha Hill Jamison
                                                   Justice



Panel consists of Justices Christopher, Jamison, and McCally.




       13
          Eric argues this action was frivolous and urges us to assess sanctions against Lisa
under Texas Rule of Civil Procedure 13. We decline to do so. See Glassman v. Goodfriend, 347
S.W.3d 772, 782 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (en banc) (“[T]he decision
to award [sanctions] is a matter within this court’s discretion, which we exercise with prudence
and caution after careful deliberation.”).

                                              10
