                            NUMBER 13-06-00562-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


            IN THE ESTATE OF BOBBIE S. LYNCH, DECEASED


  On appeal from the 216th District Court of Kendall County, Texas.


                         MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Vela
                Memorandum Opinion by Justice Rodriguez

      Appellants, Peggy Jean (Lynch) Sackheim and Patricia Ann (Lynch) Alderman, filed

a petition in the Kendall County Court at Law for an accounting and distribution of the

estate of their mother, Bobbie S. Lynch, and for the removal of appellee, Tracy June

Lynch, as independent executrix. The Kendall County Court at Law transferred the case

to the 216th District Court of Kendall County, where it was then dismissed. Appellants

challenge the dismissal, contending the district court's order is void for lack of subject
matter jurisdiction.1 We vacate the district court's order and remand with instructions to

return the case to the Kendall County Court at Law, where jurisdiction remains.

                                               I. BACKGROUND

        As independent executrix, appellee filed an application to probate her mother's will

and for issuance of letters testamentary in the Kendall County Court at Law. The Kendall

County Court at Law admitted the will to probate and granted letters testamentary.

        Appellants subsequently filed a petition in the Kendall County Court at Law for

accounting and distribution of the estate pursuant to sections 149A and 149B of the Texas

Probate Code and for removal of the independent executrix under section 149C. See TEX .

PROB. CODE ANN . §§ 149A, 149B (Vernon 2003), 149C (Vernon Supp. 2008). Appellee

filed a plea to the jurisdiction and motion in limine in the Kendall County Court at Law,

claiming that appellants lacked standing to seek an accounting and distribution of the

estate. Instead of ruling on appellee's plea to the jurisdiction and motion in limine, the

Kendall County Court at Law transferred the case to the 216th District Court of Kendall

County. After a hearing on the plea to the jurisdiction and motion in limine, the district

court sustained appellee's motions, and dismissed appellants' petition for accounting and

distribution and for removal of the independent executrix.

                                          II. STANDARD OF REVIEW

        We review the trial court's subject matter jurisdiction de novo.                             Musquiz v.

Marroquin, 124 S.W.3d 906, 909 (Tex. App.–Corpus Christi 2004, pet. denied). Any orders

entered by a court lacking subject matter jurisdiction are void. See Browning v. Prostok,



        1
           By their first issue, appellants contend that the district court erred in granting appellee's plea to the
jurisdiction and m otion in lim ine because they have standing in this case. However, this issue is not necessary
to the final disposition of this appeal; therefore, we do not address it. See T EX . R. A PP . P. 47.1.

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165 S.W.3d 336, 346 (Tex. 2005) (citing Browning v. Placke, 698 S.W.2d 362, 363 (Tex.

1985) (orig. proceeding) (per curiam)). "Subject matter jurisdiction is essential to the

authority of a court to decide a case," and it "is never presumed and cannot be waived."

Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). The issue

of subject matter jurisdiction may be raised for the first time on appeal. Id. at 445.

                                                  III. ANALYSIS

         By their second issue, appellants argue that the 216th District Court of Kendall

County does not have jurisdiction over probate matters. Appellee counters that the probate

code does not explicitly divest the district court of jurisdiction.

         In Kendall County, the county court at law exercises jurisdiction over probate

matters. See TEX . GOV'T CODE ANN . § 25.0003(d) (Vernon Supp. 2008). Kendall County

has no statutory probate court. See id. § 25.1321 (Vernon 2004); TEX . PROB. CODE ANN .

§ 3(ii) (Vernon 2003). Under section 5(c) of the probate code, in counties where there are

no statutory probate courts, all applications, petitions, and motions regarding probate and

administrations shall be filed and heard in the county court at law exercising probate

jurisdiction. TEX . PROB . CODE ANN . § 5(c) (Vernon Supp. 2008). Therefore, the Kendall

County Court at Law has original jurisdiction over probate proceedings.2 See Bailey v.

Cherokee County Appraisal Dist., 862 S.W.2d 581, 585 (Tex. 1993) ("In those counties

where there are statutory courts exercising probate jurisdiction, such courts share original

jurisdiction over probate proceedings with the constitutional county court . . . ."); Hailey v.

Siglar, 194 S.W.3d 74, 77 (Tex. App.–Texarkana 2006, pet. denied) (concluding that in a



         2
          "'Probate m atter,' 'Probate proceedings,' 'Proceeding in probate,' and 'Proceedings for probate' are
synonym ous and include a m atter or proceeding relating to the estate of a decedent." T EX . P R O B . C OD E A N N .
§ 3(bb) (Vernon Supp. 2008).

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county without a statutory probate court, the county court at law had original probate

jurisdiction); Lee v. Hersey, 223 S.W.3d 439, 444-45 (Tex. App.–Amarillo 2006, pet.

denied) (same).

        Appellants' petition involves the administration of their mother's estate; therefore,

under section 5(c), their petition must be filed and heard in the county court at law. See

TEX . PROB . CODE ANN . §§ 5(c), 149A, 149B, and 149C.3 Because the Kendall County

Court at Law has original jurisdiction, the 216th District Court of Kendall County never

acquired jurisdiction. See Hailey, 194 S.W.3d at 77. Therefore, we conclude that the

district court's judgment is void.           See Browning, 165 S.W.3d at 346.                   We sustain

appellants' second issue.

                                             III. CONCLUSION

        We vacate the order of the 216th District Court of Kendall County and remand the

case to the district court with instructions to return the case to the Kendall County Court at

Law, where jurisdiction remains.




                                                              NELDA V. RODRIGUEZ
                                                              Justice

Memorandum Opinion delivered and
filed this 9th day of October, 2008.


        3
           Section 149A provides that if an independent executor does "not com ply with a dem and for an
accounting . . . within sixty days after receipt of the dem and, the person m aking the dem and m ay com pel
com pliance by an action in the county court, as that term is defined by Section 3 of this code." Id. § 149A
(Vernon 2003). Pursuant to section 149B, "a person interested in the estate m ay petition the county court,
as that term is defined by Section 3 of this code, for an accounting and distribution." Id. § 149B (Vernon
2003). Section 149C states, "The county court, as that term is defined by Section 3 of this code, on its own
m otion or on m otion of any interested person, after the independent executor has been cited by personal
service to answer at a tim e and place fixed in the notice, m ay rem ove an independent executor . . . ." Id. §
149C (Vernon Supp. 2008). Under section 3 of the probate code, "'County Court' and 'Probate Court' are
synonym ous term s and denote . . . courts created by statute and authorized to exercise original probate
jurisdiction . . . ." Id. § 3(e) (Vernon Supp. 2008).

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