
 
                                                                                                    
  


 
 
 
NUMBER 13-03-696-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG

 

IN RE: THE JOHN G. AND MARIE STELLA 
KENEDY MEMORIAL FOUNDATION, et al.,                              Relators.




On Petition for Writ of Mandamus




 O P I N I O N

Before Chief Justice Valdez and Justices Hinojosa and Castillo

Opinion by Chief Justice Valdez

          In this original proceeding, relators
 ask us to determine whether a statutory probate
court judge has authority to transfer to his court bills of review pending in other courts
pursuant to section 5B of the probate code.  See Tex. Prob. Code Ann. § 5B.
  Real party
in interest, Ann Fernandez, filed four bills of review in the County Court of Kenedy County
seeking to reopen the estates of John G. Kenedy, Jr., his wife Elena Suess Kenedy, and
his sister Sarita Kenedy East.  She also filed bills of review in other courts challenging
several judgments pertaining to the disposition of the three estates.  The respondent, the
Honorable Guy Herman, a statutory probate court judge assigned to the County Court of
Kenedy County, transferred to his court three of Fernandez’s bills of review filed in other
courts and consolidated these with bills of review pending in his court pursuant to section
5B of the probate code.  In a plea to the jurisdiction, a motion to dismiss for lack of
jurisdiction, and a response to the motion to transfer, relators unsuccessfully challenged
the statutory probate court judge’s authority to transfer the three bills of review. 
          In this proceeding, relators contend the statutory probate court judge had no
authority to transfer the bills of review from other courts to his court because (1) well-settled law provides that only the court that issued the judgment has jurisdiction to hear the
bill of review attacking that judgment; and (2) in the alternative, section 5B of the probate
code did not provide the statutory probate court judge with authority to transfer the bills of
review to his court because no estate was pending before him at the time of the transfer. 
Because we conclude the statutory probate court judge had no statutory authority to order
the transfers, we conditionally grant the writ and order the statutory probate court judge to
vacate his orders transferring the three bills of review to his court.
I.  FACTUAL AND PROCEDURAL HISTORY
          Fernandez alleges she is Mr. Kenedy’s biological daughter and only learned this fact
in the past few years.  Through bills of review, she seeks to reopen the administration of
Mr. Kenedy’s estate, Mrs. Kenedy’s estate, and Ms. East’s estate, and other actions
described below and related to the disposition of these estates.
A.  John G. Kenedy, Jr.’s Estate and Related Action
          Mr. Kenedy died in 1948.
 His will was admitted to probate in the County Court of
Kenedy County in Estate of John G. Kenedy, Jr., cause number 189.  In his will, Mr.
Kenedy bequeathed to his wife his property, “both personal and mixed.”
          Humble Oil & Refining Company held oil, gas, and mineral leases to real property
belonging to Mr. Kenedy.  In 1949, it filed suit in the District Court of Kenedy County in
Humble Oil & Refining Company v. East, cause number 35, seeking a determination of
whether Mr. Kenedy’s will disposed of his real property.  The final judgment established
that Mr. Kenedy’s will disposed of all of his property, including his real property and real
property interests.  In 1952, the administration of Mr. Kenedy’s estate in cause number 189
was completed.
B.  Sarita Kenedy East’s Estate and Related Actions
          Ms. East died in 1961.  A will dated 1960, which left a portion of her estate to The
John G. and Marie Stella Kenedy Memorial Foundation (the Foundation), was admitted to
probate in the County Court of Kenedy County in Estate of Sarita K. East, cause number
344.  Several matters relating to the disposition of Ms. East’s estate were litigated
extensively in various cases.
 
          Among those causes of actions was a will contest filed in the County Court of
Kenedy County in Trevino v. Turcotte, cause number 348.  The county court set aside Ms.
East’s 1960 will and the order admitting it to probate.  Proponents of the 1960 will filed
appeals that were consolidated into cause number 101-209-D in the District Court of
Nueces County.  That court rendered a judgment that, among other things, found the 1960
will and a specified codicil to be Ms. East’s last will and testament.  Portions of the
judgment were appealed and, ultimately, upheld.  See Trevino v. Turcotte, 564 S.W.2d
682, 690 (Tex. 1978). 
          In 1964, Arnold Garcia, an appointed temporary administrator of Ms. East’s estate,
filed suit in the District Court of Kenedy County in Garcia v. The John G. and Marie Stella
Kenedy Memorial Foundation, cause number 85, to set aside inter vivos gifts Ms. East
made to the Foundation.  Ultimately, the district court dismissed this action.
          The Attorney General filed suit seeking a final accounting of Ms. East’s estate in the
District Court of Kenedy County in Mattox v. Alice National Bank, cause number 158.  In
1986, the district court concluded a final accounting should be made and transferred the
case to the County Court of Kenedy County for proceedings consistent with the judgment. 
Accordingly, the county court issued an order closing Ms. East’s estate in cause number
344 in 1987.
C.  Mrs. Kenedy’s Estate
          Mrs. Kenedy died in 1984, leaving a portion of her estate to the John G. Kenedy,
Jr. Charitable Trust (the Trust).  Her will was admitted into probate in cause number 379
in the County Court of Kenedy County.  The administration of her estate was completed
in 1985.
D.  The Underlying Actions
          Beginning in October 2001, Fernandez filed numerous actions seeking to reopen
most of the suits described above.  In these bills of review, she alleges she is entitled to
her intestate share of real property Mr. Kenedy did not dispose of in his will and that she
is an heir of Ms. East.  She contends she should have been a party in the suits pertaining
to the three estates.  She requests, among other things, an accounting and distribution
from the Foundation and Trust as beneficiaries of the estates. 
          She filed the following bills of review in the County Court of Kenedy County: 
          1)       Estate of John G. Kenedy, Jr., cause number 189;
 
          2)       Estate of Sarita Kenedy East, cause number 344;  
          3)       Estate of Elena Suess Kenedy, cause number 379; and
          4)       Estates of John G. Kenedy, Jr., Sarita Kenedy East, and Elena Suess
Kenedy, cause number 395.    
She filed bills of review in the District Court of Kenedy County in the following actions:
          1)       Humble Oil & Refining Co. v. East, cause number 35 (renumbered to 03-CV-050); and
          2)       Garcia v. The John G. & Marie Stella Memorial Foundation, cause number
85 (renumbered to 03-CV-051).
She filed a bill of review in the District Court of Nueces County in Trevino v. Turcotte,
cause number 101-209-D, which was renumbered to 02-2959-D.  She also filed a suit titled
Fernandez v. Exxon Mobil Corporation, cause number 02-2331-C in the District Court of
Nueces County.  
          Because Kenedy County does not have a statutory probate court, the Foundation
filed motions for the assignment of a statutory probate court judge in cause numbers 344
and 395 pursuant to section 5(b) of the probate code.  See Tex. Prob. Code Ann. § 5(b)
(Vernon Supp. 2004) (allowing county court to request assignment of statutory probate
court judge).  The Trust filed a similar motion in cause number 395.  On June 10, 2002, the
county court granted the motion.  The Honorable Guy Herman, a statutory probate court
judge, was subsequently appointed to preside over cause numbers 344 and 395 in the
County Court of Kenedy County by order of the presiding judge of the statutory probate
courts and pursuant to section 25.0022 of the government code.  See Tex. Gov’t Code
Ann. § 25.0022(h) (Vernon 2004).  The order stated the assigned judge would hold all
rights, powers, and privileges held by the regular judge of the court and the attendant
jurisdiction of a statutory probate court.  See id. § 25.0022(i).
          On November 5, 2002, the statutory probate court judge consolidated into cause
number 395 the bill-of-review proceedings in cause numbers 189, 344, and 379, which
were all then pending in the County Court of Kenedy County.  On the Foundation’s motion
to transfer, he also ordered the suit in cause number 02-2331-C and bill of review in cause
number 02-2959-D, both pending in Nueces County, be transferred to his court and
consolidated with cause number 395.  
          In August 2003, the Foundation filed a motion to dismiss for lack of jurisdiction in
cause number 395 contending, among other things, the statutory probate court judge was
without jurisdiction to order the transfers. Fernandez then filed a motion to transfer
requesting that the statutory probate court judge transfer the bill-of-review proceedings in
03-CV-050 and 03-CV-051, which were then pending in the District Court of Kenedy
County, to the county court and consolidate them with cause number 395.  The Trust filed
a plea to the jurisdiction challenging the transfer of the bills of review from the other courts
to the county court on the basis that only the court that rendered the judgment can hear
a bill of review challenging that judgment.  The Foundation filed a response to the motion
to transfer also contending the court had no jurisdiction to transfer the cases from the other
courts. 
          In an order dated August 27, 2003, the statutory probate court judge denied both
the motion to dismiss and the plea to the jurisdiction.
  He issued an order the same day
that transferred cause numbers 03-CV-050 and 03-CV-051 from the District Court of
Kenedy County to itself and consolidated these cases with cause number 395.  Relators
filed this original proceeding challenging the statutory probate court judge’s authority to
transfer cause numbers 02-2959-D, 03-CV-050, and 03-CV-051 to his court.

II.  ANALYSIS
          As an initial matter, we note relators state in their petition the orders they are
challenging are the orders denying the motion to dismiss for lack of jurisdiction and 
denying the plea to the jurisdiction with respect to cause numbers 02-2959-D, 03-CV-050,
and 03-CV-051.  However, at the time the motion to dismiss and the plea to the jurisdiction
were filed by the Foundation and Trust, cause numbers 03-CV-050 and 03-CV-051 had
not yet been transferred and were not yet pending before the statutory probate court judge. 
The transfer of these two cases was not made until the same day the judge ruled on the
motion to dismiss and the plea to the jurisdiction.  The statutory probate court judge could
not have granted the relief requested in the motion or the plea with respect to these two
actions until after the transfers had been made.  
          Moreover, in their arguments to this Court, relators contend only that these three
cases should be heard in the courts in which they were originally filed.  Their entire
argument relates to the statutory probate court judge’s authority to transfer the three bills
of review to his court.  Accordingly, we will treat this petition for writ of mandamus as a
challenge to transfer of cause number 02-2959-D on November 5, 2002 and the transfer
of cause numbers 03-CV-050 and 03-CV-051 on August 27, 2003.  
          Mandamus is available only where a trial court clearly abuses its discretion and
there is no adequate remedy at law.  In re Swepi, 85 S.W.3d 800, 804 (Tex. 2002) (orig.
proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).  We
first consider whether the statutory probate court judge abused his discretion in transferring
to his court the three bills of review pending in other courts.
A.  Abuse of Discretion
          A trial court clearly abuses its discretion where it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law.  Walker, 827 S.W.2d at
839.  In challenges to factual determinations or matters committed to the trial court’s
discretion, relator must show that the trial court could have reasonably reached only one
decision.  Id. at 839-40.  We cannot disturb the trial court’s decision, even if we would have
decided the issue differently, unless it is shown to be arbitrary and unreasonable.  Id. at
840.  Review of a trial court’s determination of the legal principles controlling its ruling,
however, is much less deferential.  Id.  “A trial court has no ‘discretion’ in determining what
the law is or applying the law to the facts.” Id.  The trial court abuses its discretion when
it clearly fails to correctly analyze or apply the law to the facts.  Id.  
          In this instance, the issues before us are whether the longstanding rule requiring
bills of review to be filed in the court that rendered the judgment under attack precludes
certain transfers under section 5B of the probate code and whether a bill of review seeking
to reopen an estate closed long ago renders the estate “pending” as that word is used in
section 5B.  Both of these issues challenge the legal principles controlling the
determination of whether the bills of review should have been transferred.  Accordingly, the
proper inquiry is whether the statutory probate court clearly failed to correctly analyze or
apply the law to the facts.  See id.
1.  Bills of Review
          In their first issue, relators contend the statutory probate court had no jurisdiction
over the bills of review pending in the District Court of Nueces County and the District Court
of Kenedy County because of the longstanding rule that requires a bill of review to be filed
in the court that rendered the judgment under attack.  See, e.g., Rodriguez v. EMC
Mortgage Corp., 94 S.W.3d 795,  797 (Tex. App.–San Antonio 2002, no pet.); Brox v.
Kelly, 87 S.W.2d 753, 754 (Tex. Civ. App.–Texarkana 1935, writ dism’d by agr.).  Relators
say that despite the transfer power granted to the statutory probate court judge by section
5B of the probate code, only the court in which the bill of review was properly filed can
transfer the proceedings to another court. 
          A bill of review is an independent action brought to set aside a judgment that is not
void on the face of the record and no longer appealable or subject to a motion for a new
trial.  King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).  When properly
brought, a bill of review is a direct attack on the judgment.  Solomon, Lambert, Roth &
Assocs. Inc. v. Kidd, 904 S.W.2d 896, 899 (Tex. App.–Houston [1st Dist.] 1995, no writ).
          Because a bill of review is a direct attack on the judgment, it must be brought in the
court rendering the judgment, and only the court that rendered the original judgment has
jurisdiction over the bill of review.  Richards v. Comm’n for Lawyer Discipline, 81 S.W.3d
506, 508 (Tex. App.–Houston [1st Dist.] 2002, no pet.); Kidd, 904 S.W.2d at 900; Martin
v. Stein, 649 S.W.2d 342, 346 (Tex. App.–Fort Worth 1983, writ ref’d n.r.e.) (per curiam);
cf. Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973).  The
requirement that a bill of review be filed in the court that rendered the judgment is a matter
of jurisdiction, not merely of venue.  Kidd, 904 S.W.2d at 900.  The rule is intended to
protect principles of comity: 
We believe the policy considerations for the rule remain sound.  Under the
principles of comity, a court should not be permitted to interfere with the final
judgment of another court of equal jurisdiction.  Apart from the unseemliness
of such conduct, the rule avoids ‘confusion, judge-shopping and conflicting
results.’  Although the Government Code and the rules of civil procedure
authorize district judges in multiple court counties to hear matters from other
courts . . . , for the purposes of the rule requiring direct attacks to be filed in
the court of judgment, the district courts are considered to be jurisdictionally
separate. 

Pursley v. Ussery, 937 S.W.2d 566, 568 (Tex. App.–San Antonio 1996, no writ) (citations
omitted).  
          However, once the bill of review has been filed in the court in which the judgment
was entered and jurisdiction has attached, the case may be transferred to another court
for a determination on the merits in appropriate cases.  Rodriguez, 94 S.W.3d at 797-98;
Outlaw v. Noland, 506 S.W.2d 734, 735 (Tex. Civ. App.–Houston [1st Dist.] 1974, writ ref’d
n.r.e.).
  Relators contend the line of cases allowing for the transfer of a bill of review once
jurisdiction has attached does not apply here because only the court in which the bill of
review was properly filed can transfer the bill of review to another court.  Relators cite no
case law nor did we find any that explicitly states that under this rule only the court in which
the judgment was rendered may order the transfer to another court regardless of statutory
authority. 
          On the contrary, the rule as stated in all of these cases is simply that once
jurisdiction has attached, the bill of review may be transferred in appropriate cases.  See
Rodriguez, 94 S.W.3d at 797; Outlaw, 506 S.W.2d at 735.  The focus in determining
whether the transferee court has jurisdiction is not whether the court that rendered the
judgment under attack ordered the transfer, but whether the court hearing the bill of review
was authorized to do so by law after jurisdiction attached in the proper court.  See, e.g.,
Fassy v. Kenyon, 675 S.W.2d 217, 218-19 (Tex. App.–Houston [1st Dist.] 1984, orig.
proceeding) (transferee court had jurisdiction over bill of review where transfer authorized
by family code); Brox, 87 S.W.2d at 755 (transferee court had jurisdiction over direct attack
where transfer authorized by civil statute).  Particularly instructive here is the recent
decision in Rodriguez.
          In Rodriguez, the bill of review was filed in the county court at law that originally
rendered the judgment under attack.  Rodriguez, 94 S.W.3d at 797.  A plea to the
jurisdiction, which challenged the standing of the party who filed the bill of review and the
jurisdiction of the court based on a related pending appeal, was heard and ruled on by a
second court.  Id. at 797-98.  The second court granted the plea and dismissed the bill of
review.  Id. at 797.
          On appeal, one of the issues before the court was whether the second court had
any jurisdiction over the bill of review in light of the rule that requires a party to file a bill of
review in the court that entered the judgment under attack.  Id.  The appellate court stated
that once the bill of review was filed in the court that rendered the original judgment,
jurisdiction attached.  Id.  Once jurisdiction attached, the second court had authority to hear
the bill of review pursuant to section 74.094 of the government code, which authorizes a
statutory county court judge to hear and determine a matter pending in any statutory
county court in the county regardless of whether the case was transferred.  Id. at 798
(citing Tex. Gov’t Code Ann. § 74.094 (Vernon Supp. 2002)). 
          Relators contend that no case law supports the notion that the transferee court can
usurp the original court’s power by acting as both transferor and transferee.  We disagree. 
We have previously acknowledged the general rule that “[a]bsent specific authority,” a trial
court has no power to transfer to itself a matter pending in another trial court.  Flores v.
Peschel, 927 S.W.2d 209, 213 (Tex. App.–Corpus Christi 1996, orig. proceeding)
(emphasis added).  However, we also noted various statutory provisions that provide
authority for such transfers, including section 5B of the probate code.  Id. 
          We hold that once jurisdiction attaches in the proper court, a bill of review may be
transferred by another court to itself if specific authority exists for the transfer.  Here, the
three transferred bills of review were originally filed in the courts that rendered the
judgments under attack.  Accordingly, jurisdiction attached at that time.  See Rodriguez,
94 S.W.3d at 794.   We next consider whether section 5B of the probate code, the statute
under which the actions were transferred to the county court, provided the specific authority
for the transfers in this instance. 
2.  Pending Estate
          In relators’ second issue, they contend the statutory probate court judge had no
authority under section 5B to transfer the bills of review to itself because the transfer power
under this section is only triggered when an estate is pending before the court.  Relators
argue the estates of Mr. and Mrs. Kenedy and Ms. East were closed long ago and were
not rendered “pending” merely by the filing of the bills of review seeking to set aside the
orders probating their wills. 
          In construing a statute, our purpose is to give effect to the intent of the legislature. 
State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Alba v. Nueces County Sheriff’s Dep’t,
89 S.W.3d 132, 133 (Tex. App.–Corpus Christi 2002, pet. denied).  If the statute is
unambiguous, we look to the plain and common meaning of the words and terms used to
discern the legislature’s intent.  Gonzalez, 82 S.W.3d at 327; Alba, 89 S.W.3d at 134. 
Where the legislature has not defined a word, we apply its ordinary meaning.  Monsanto
Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993).  When we do so,
we may not by implication enlarge the meaning of the word; such implications are
“‘forbidden when the legislative intent may be gathered from a reasonable interpretation
of the statute as it is written.’"  Id. (quoting Sexton v. Mount Olivet Cemetery Ass'n, 720
S.W.2d 129, 138 (Tex. App.–Austin 1986, writ ref'd n.r.e.)). 
          Section 5B provides:
A judge of a statutory probate court, on the motion of a party to the action or
on the motion of a person interested in an estate, may transfer to his court
from a district, county, or statutory court a cause of action appertaining to or
incident to an estate pending in the statutory probate court or a cause of
action in which a personal representative of an estate pending in the
statutory probate court is a party and may consolidate the transferred cause
of action with the other proceedings in the statutory probate court relating to
that estate. 

Tex. Prob. Code Ann. § 5B (emphasis added).  The word “pending” is not defined in the
probate code.  See Tex. Prob. Code Ann. § 3 (Vernon 2003).  Black’s Law Dictionary
defines “pending” as:
Begun, but not yet completed; during; before the conclusion of; prior to the
completion of; unsettled; undetermined; in process of settlement or
adjustment.  Awaiting an occurrence or conclusion of action, period of
continuance or indeterminacy.  Thus, an action or suit is ‘pending' from its
inception until the rendition of a final judgment.

Black's Law Dictionary 1134 (6th ed. 1990); see Alba, 89 S.W.3d at 134 (utilizing Black's
Law Dictionary's definition of "suspension" in construing statute).  
          The word “pending” does not describe a closed estate.  “[T]he final distribution of
an estate’s assets after all debts and claims against the estate are paid results in the
closing of the estate.”  Interfirst Bank-Houston, N.A. v. Quintana Petroleum Corp., 699
S.W.2d 864, 874 (Tex. App.–Houston [1st Dist.] 1985, writ ref’d n.r.e.); see also Pugh v.
Turner, 145 Tex. 292, 197 S.W.2d 822, 826 (1946); In re Hanau, 806 S.W.2d 900, 903
(Tex. App.–Corpus Christi 1991, orig. proceeding [leave denied]).  Thus, an estate that is
closed cannot simultaneously be considered pending because in order to close the estate,
all debts, claims, and distributions must be settled and completed.  Cf. Tex. Commerce
Bank-Rio Grande Valley, N.A. v. Correa, 28 S.W.3d 723, 727 (Tex. App.–Corpus Christi
2000, pet. denied) (concluding estate in which administration was closed could not be
considered “pending” probate proceeding).
          The question becomes whether filing a bill of review renders an estate that has been
closed “pending” for purposes of triggering the transfer power contained in section 5B.  We
look to case law describing the effect of filing a bill of review on the judgment it seeks to
set aside.   
          Texas recognizes a policy favoring finality of judgments.  Baker v. Goldsmith, 582
S.W.2d 404, 409 (Tex. 1979).  Once a judgment is rendered final, “it must be accorded a
measure of respect or litigation would tend to become endless.”  Id.  A bill of review, by its
nature, acknowledges the existence of a final judgment.  Schwartz v. Jefferson, 520
S.W.2d 881, 889 (Tex. 1975) (orig. proceeding).  The filing of a bill of review alone will not
affect the finality of the judgment.  Id.  To have the judgment set aside, the complainant
must first meet certain pretrial burdens and then prevail on the merits.  Baker, 582 S.W.2d
at 408-09 (describing complainant’s pretrial prima facie burden of proof); Kessler v.
Kessler, 693 S.W.2d 522, 526 (Tex. App.–Corpus Christi 1985, orig. proceeding). 
          The record indicates that the estates of Mr. Kenedy, Mrs. Kenedy, and Ms. East
were all closed years ago, a fact no party disputes.  The County Court of Kenedy County
issued an order in 1987 closing Ms. East’s estate.  The administrations of Mr. Kenedy’s
and Mrs. Kenedy’s estates were completed in 1952 and 1985 respectively, which had the
effect of closing the estates.  See Interfirst Bank-Houston, N.A., 699 S.W.2d at 874. 
          Fernandez filed bills of review seeking to set aside the orders of the County Court
of Kenedy County probating the wills of Mr. and Mrs. Kenedy and Ms. East and seeking
a redistribution of the assets.  In our review of the pleadings and other documents in the
record, we have found no order setting aside the orders probating the wills or otherwise
reopening the administration of the estates; nor have relators contended that any such
orders exist.  Accordingly, the estates remained closed. 
          To reach any other conclusion would allow any closed estate to be rendered
“pending,” and hence unsettled or undetermined, by the mere filing of a bill of review
without any consideration as to whether the bill of review was properly filed or satisfies the
initial burden of proof.  Under this rationale, every estate ever closed could be rendered
“pending” at any time in the future.
          The dissent finds dispositive that the Foundation itself requested one of the
transfers at issue here and neither the Trust nor the Foundation challenged any of the
transfers ordered on November 5, 2002 at the time they were made.
  The dissent
concludes that these actions provide ample ground for denying relief under equitable
principles.  
          In a case where a probate court transferred a matter from another court to itself
without statutory authority under section 5B, the supreme court determined the probate
court “erroneously concluded it had jurisdiction.”  In re Swepi, 85 S.W.3d at 809 (emphasis
added).  Jurisdiction of the court cannot be acquired by estoppel or waiver.  Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex. 2001); Tex. Ass’n of Bus.
v. Tex. Air Control Bd., 852 S.W.2d 440, 443-445 (Tex. 2001).  Accordingly, we disagree
with the dissent’s position.
          The dissent also notes that no party has challenged the assignment of the statutory
probate court judge, which requires the existence of a “contested probate matter” under
section 5(b) of the probate code.  See Tex. Prob. Code Ann. § 5(b).  The dissent equates
the phrase "estate pending" with the term "contested probate matter."  From this, the
dissent concludes a determination that no estate was pending would require a
determination that the assignment of the statutory probate court judge was improper.  
          We do not reach the same conclusion.  The phrase “probate matter” includes 
matters or proceedings relating to the estate of a decedent.  Tex. Prob. Code Ann. § 3(bb)
(Vernon 2003).  The phrase “contested probate matter” as used in section 5(b) has been
held to encompass a bill of review attacking an order admitting a will to probate.  Jackson
v. Thompson, 610 S.W.2d 519, 522 (Tex. Civ. App.–Houston [1st Dist.] 1980, no writ).
Thus, the filing of a bill of review can be sufficient to satisfy the “contested probate matter”
requirement of section 5(b) without rendering a closed estate “pending” for purposes of
section 5B.  Had the legislature intended that the transfer power of 5B be triggered by the
pendency of a contested probate matter in the probate court, it could have easily stated
so.  It did not.  
          The legislature has expressed a preference for convenience and consistency.  See
In re Ramsey, 28 S.W.3d 58, 63 (Tex. App.–Texarkana 2000, orig. proceeding) (purpose
of section 5B is to promote efficient administration of estates and judicial economy).
However, we do not believe this compels us to broaden the scope of section 5B by
applying it to situations that clearly do not meet the requirements of that section.  To do so
would require us to, in essence, rewrite the statute and ignore our policy in favor of finality
of judgments.  See Baker, 582 S.W.2d at 409.  These are actions we are neither
authorized nor willing to do in this case.  See Monsanto Co., 865  S.W.2d at 939.
          Because the three estates were closed long ago and not reopened by the mere filing
of the bills of review, we conclude none of these three estates is "pending."  Without an
estate pending before him, the statutory probate court judge was without any statutory
authority under section 5B to transfer to the county court the bills of review filed in the
District Court of Nueces County and the District Court of Kenedy County.  In ordering the
transfers, the statutory probate court judge clearly failed to analyze the law correctly and
properly apply it to the facts before him.
2.  No Adequate Remedy at Law
          We will not grant mandamus relief where there is a clear and adequate remedy at
law.  Walker, 827 S.W.2d at 840.  Writ will issue only where the situation involves manifest
and urgent necessity.  Id. 
          In In re Swepi, the supreme court found that, under the specific facts in that case,
the probate court had no statutory authority under section 5B of the probate code to
transfer to itself a case pending in another court.  In re Swepi, 85 S.W.3d at 808.  In
determining whether an adequate remedy at law existed, the supreme court noted that, by
its actions, the probate court actively interfered with the jurisdiction of the court in which the
suit was pending; that is, the probate court took jurisdiction away from that court through
the erroneous transfer order.  Id. at 809.  Relying on law allowing mandamus relief where
one court interferes with the jurisdiction of another, the supreme court concluded
mandamus relief was proper in that instance.  Id.
          Here, we also concluded the statutory probate court judge lacked statutory authority
to order the transfer of the three bills of review at issue under section 5B of the probate
code.  He not only erroneously concluded he had jurisdiction over these matters, but also
actively interfered with the jurisdiction of the district courts of Nueces County and Kenedy
County.  Accordingly, mandamus relief is appropriate.  See id. 
III.  CONCLUSION
          No estate was pending before the statutory probate judge at the time he ordered the
transfers of the three bills of review pending in other courts.  Thus, he had no authority
under section 5B of the probate court to order the transfers and abused his discretion in
doing so.  Under these circumstances, mandamus relief is appropriate.  Accordingly, we
conditionally grant the writ and direct the statutory probate court judge to vacate the portion
of his November 5, 2002 order transferring cause number 02-2959-D to his court and his
order dated August 27, 2003 transferring cause numbers 03-CV-050 and 03-CV-051 to his
court.  The writ will issue only if the statutory probate court judge fails to comply.  We also
lift the stay of the proceedings in cause number 395 imposed by our order dated February
9, 2004.  
 



                                                                                                                   
                                                                        Rogelio Valdez,
                                                                        Chief Justice
Dissenting opinion by Justice Castillo.
 
Opinion delivered and filed
this 16th day of June, 2004.
