                             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 ON REHEARING

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

       After considering appellee Tracy June Lynch's motion for rehearing, we deny the

motion; however, we withdraw our memorandum opinion and judgment of October 9, 2008,

and substitute the following to make nondispositive clarifications.

                                     I. INTRODUCTION

       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.

                                         II. FACTUAL 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




        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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distribution and for removal of the independent executrix on the basis that appellants did

not have standing.

                                 III. 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,

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.

                                        IV. 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. See TEX . PROP. CODE ANN .

§ 115.001 (a-1) (Vernon Supp. 2008) (explaining that the list of proceedings by or against

a trustee or concerning a trust in subsection (a) is not exhaustive).

       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



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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

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).

         On motion for rehearing, appellee argues that this Court should view appellants'

claims in the proper context to conclude that jurisdiction was properly in the 216th District

Court of Kendall County because appellant sought determinations regarding appellee's

duties, responsibilities, powers, and liability as trustee over two testamentary trusts created

by their mother. In order to do as appellee requests, we must construe appellants' causes

of action as trust matters. We decline to do so.

         Appellants' petition involves probate matters regarding the administration of their

mother's estate including a request for an accounting and distribution and the removal of

appellee as executrix; therefore, under section 5(c), their petition must have be filed and

heard in the county court at law. See TEX . PROB . CODE ANN . §§ 5(c), 149A, 149B, and



         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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149C.3 Moreover, we decline to construe appellants' petition filed in the county court at law

as involving a trust when the only mention of a trust is a request to show proof that the

trusts were in fact funded. Because the Kendall County Court at Law has original

jurisdiction over these probate matters, the 216th District Court of Kendall County never

acquired jurisdiction.4 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.

                                                 V. 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 as to probate matters including the issue of standing in this

case.


                                                                    NELDA V. RODRIGUEZ
                                                                    Justice

Memorandum Opinion on Rehearing delivered
and filed this 25th day of November, 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) (em phasis added). 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) (em phasis added). 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) (em phasis added). 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).

         4
            W e note, however, that any trust issues would be properly filed in the district court. See T EX . P R O P .
C O D E A N N . § 115.001(a) (Vernon Supp. 2008) (providing that "a district court has original and exclusive
jurisdiction over all proceedings by or against a trustee and all proceedings concerning trusts").

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