                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-12-00787-CV

                                           Helen HERRERA,
                                               Appellant

                                                   v.
                                                  Julia
                                           Julia MARTINEZ,
                                                 Appellee

                            From the County Court, Atascosa County, Texas
                                        Trial Court No. 7296
                             Honorable Diana J. Bautista, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Marialyn Barnard, Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: April 30, 2014

REVERSED AND REMANDED

           This is an appeal from the trial court’s order denying appellant Helen Herrera’s request for

declaratory judgment and granting letters of dependent administration in favor of appellee Julia

Martinez. On appeal, Herrera contends: (1) she was prevented from properly presenting her case

to this court because the trial court failed to comply with the Texas Government Code’s

requirement that the court appoint a certified shorthand reporter to report the oral testimony given

in any contested probate matter; and (2) the trial court erred by failing to timely mail a copy of its
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findings of fact and conclusions of law to Herrera as required by the Texas Rules of Civil

Procedure. We reverse the trial court’s judgment and remand the matter to the trial court.

                                           BACKGROUND

       The heart of this case is a dispute for control over the intestate estate of Cezlo Vejara. After

Vejara passed away, his sister, Martinez, filed various applications with the trial court to manage

her brother’s estate. Herrera contested Martinez’s actions and sought a declaration from the trial

court that Herrera had entered into a common law marriage with Vejara before his death.

       On November 21, 2012, the trial court held a hearing on the matter and denied Herrera’s

claim that a common law marriage existed between Herrera and Vejara. There is no reporter’s

record of this contested probate hearing. Herrera subsequently perfected this appeal.

                                             ANALYSIS

       Although Herrera raises three issues on appeal, her basic contentions are: (1) she was

prevented from bringing her legal and factual sufficiency challenge before this court because the

trial court erred by failing to appoint a certified shorthand reporter as required by Government

Code section 52.046(d); and (2) the trial court abused its discretion by failing to timely forward a

copy of its findings of fact and conclusions of law to Herrera as required by Texas Rule of Civil

Procedure 37.

                                      Record of Proceedings

       Herrera’s primary complaint on appeal is that the trial court erred by not providing a court

reporter to record the testimony given in the trial to determine whether she had a common law

marriage with Vejara.     Herrera contends this error undermines her ability to challenge the

sufficiency of the evidence used to support the trial court’s ruling as reflected in the findings of

fact and conclusions of law. We agree.



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       Although a party must generally request a court reporter to make a record of testimony,

there is an exception to the rule. Under Government Code section 52.046(d), “a judge of a county

court or county court at law shall appoint a certified shorthand reporter to report the oral testimony

given in any contested probate matter in that judge’s court.” TEX. GOVT. CODE ANN. § 52.046(d)

(West 2013) (emphasis added). Accordingly, the trial court was required to appoint a court

reporter for Herrera’s case if it was a contested probate matter.

       Here, the underlying action was an application by Martinez to administer the intestate

estate of Vejara. Herrera contested the action, claiming she was Vejara’s common law wife. Such

an action regarding the administration of an estate is by definition a “probate proceeding” under

the Texas Estates Code. See TEX. EST. CODE ANN. § 31.001(4) (term “probate proceeding”

includes “an application, petition, motion, or action regarding the probate of a will or an estate

administration.”). The terms “probate proceeding” and “probate matter” are synonymous. Id.

§ 22.029. Accordingly, we hold the trial court should have appointed a court reporter to make a

record of events because Herrera’s action was a contested probate matter. See TEX. GOVT. CODE

ANN. § 52.046(d).

       Herrera contends the trial court committed reversible error by not appointing a court

reporter because the error probably prevented Herrera from properly presenting her appeal to this

court. See TEX. R. APP. P. 44.1. We agree. In support of her contention, Herrera directs the court

to a recent decision by the Waco Court of Appeals regarding the lack of a reporter’s record as

required by Government Code section 52.046(d). See In the Estate of Hayes, No. 10-09-00212-

CV, 2010 WL 2135636 (Tex. App.—Waco May 26, 2010, no pet.) (mem. op.). In Hayes, the

appellate court, citing section 52.046(d), held the trial court erred by failing to ensure a court

reporter recorded a contested hearing to admit a will to probate as a muniment of title. See id. at

*1–2. As a result of the trial court’s failure, the judgment was reversed and remanded because the
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appellant was prevented from properly presenting his legal and factual sufficiency challenge to the

court. See id. The present case is analogous to the situation in Hayes.

       Without a record of the proceedings, Herrera is unable to properly present her challenge of

the legal and factual sufficiency of the evidence supporting the trial court’s judgment.

Accordingly, we sustain Herrera’s complaint and hold the trial court’s error constitutes reversible

error. See TEX. R. APP. P. 44.1; Hayes, 2010 WL 2135636 at *2.

       We note Martinez argues we should not reach a similar decision to Hayes because unlike

that case, where the appellant did not appear in person or by attorney at the hearing, Herrera was

represented by counsel who agreed to proceed without a court reporter at trial. Martinez directs

this court to the following language in the trial court’s judgment to support her argument of waiver:

“[t]he making of a record was waived because no request was made to the Court requesting a court

reporter.” We reject this argument for two reasons. First, the assertion that it was the duty of the

parties to request a court reporter is at odds with the mandate in the Government Code requiring

the trial court to appoint a court reporter for a contested probate matter. Second, the record does

not substantiate the claim that Herrera affirmatively waived her right to have the trial court appoint

a court reporter. Accordingly, we find Martinez’s contention without merit.

       Because of our holding on this issue, we need not address Herrera’s other claims.

                                           CONCLUSION

       Based on the foregoing, we reverse the trial court’s judgment and remand this cause for

further proceedings in accordance with this opinion.


                                                   Marialyn Barnard, Justice




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