                               Fourth Court of Appeals
                                       San Antonio, Texas
                                              OPINION
                                         No. 04-13-00690-CV

                        IN RE ESTATE OF Alvilda M. AGUILAR, Deceased

                          From the Probate Court No. 2, Bexar County, Texas
                                    Trial Court No. 2012-PC-2802
                              Honorable Tom Rickhoff, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: June 4, 2014

DISMISSED FOR WANT OF JURISDICTION

           This is an attempted appeal from a probate court’s order granting a motion to transfer to

itself a wrongful death action pursuant to section 34.001 of the Texas Estates Code. We dismiss

the appeal for want of jurisdiction.

                                              BACKGROUND

           A detailed rendition of the underlying facts is unnecessary to our disposition of the case.

Accordingly, we provide only those facts necessary for context.

           Appellants Anthony C. Aguilar and Michael A. Aguilar (“the Brothers”) sued appellees

Margaret Morales and Jesus Morales (collectively “Morales”) in the 205th District Court of El

Paso County, Texas, for the wrongful death of Alvilda M. Aguilar – the mother of Anthony,

Michael, and Margaret. The Brothers sued Morales in an individual capacity seeking past and
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future mental anguish damages for allegedly causing the death of Alvilda shortly after the death

of their father, Ramiro Aguilar Jr.

       At the time the Brothers filed the wrongful death suit, Margaret Morales was serving as the

representative of the estate of Alvilda Aguilar, which was pending before Bexar County Probate

Court No. 2. Margaret filed a motion to transfer the Brothers’ wrongful death claim from the El

Paso district court to the Probate Court No. 2 under section 34.001 of the Texas Estates Code. The

probate court granted the motion and the Brothers subsequently perfected this appeal.

                                             ANALYSIS

       A transfer pursuant to section 34.001 of the Estates Code is essentially a specialized form

of venue transfer for matters relating to a probate proceeding pending in a probate court. See TEX.

EST. CODE ANN. § 34.001 (West 2014); see also Gonzalez v. Reliant Energy, Inc., 159 S.W. 615,

622 (Tex. 2005) (“the transfer of a case [under section 34.001] pertains to venue, not

jurisdiction.”). “Generally, interlocutory appeal is unavailable from a trial court’s determination

of a venue question.” Harding Bars, LLC v. McCaskill, 374 S.W.3d 517, 519 (Tex. App.—San

Antonio 2012, pet. denied) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(a)). As a result,

a party must usually wait until a final judgment occurs to appeal a ruling regarding venue. See id.

(citing TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(b)). Such was the case in our recent decision

in In re Estate of Aguilar, where we considered the merits of a section 34.001 transfer only after

the trial court rendered orders that were final for purposes of appeal. See No. 04-13-00038-CV,

2014 WL 667516 (Tex. App.—San Antonio Feb. 19, 2014, pet. filed) (considering merits of

section 34.001 transfer as part of review of orders constituting exceptions to the one final judgment

rule under De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006)).

       Texas appellate courts have jurisdiction only over final orders or judgments unless a statute

permits an interlocutory appeal. Ogletree v. Matthews, 262 S.W.3d 316, 318–19 n.1 (Tex. 2007).
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Here, we have reviewed the record and hold there is no final judgment that would permit

concomitant review of the probate court’s transfer order, and there is no statute permitting an

interlocutory appeal from the probate court’s section 34.001 transfer. See id. Nor is the order in

question the type of order that is considered an exception to the one final judgment rule under De

Ayala. See Estate of Aguilar, 2014 WL 667516. Accordingly, we must dismiss this attempted

appeal for want of jurisdiction. See TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(a); TEX. EST.

CODE ANN. § 34.001.

       This court recognizes that when a probate court transfers a case to itself without statutory

authority, as alleged here, it has actively interfered with another court’s jurisdiction and mandamus

relief should be granted. In re Reliant Energy, Inc., 159 S.W.3d 624, 626 (Tex. 2005). We also

recognize that, in certain circumstances, we may treat an appeal as a petition for writ of mandamus.

See CMH Homes v. Perez, 304 S.W.3d 444, 452–53 (Tex. 2011); In re Adams, 416 S.W.3d 556,

560 (Tex. App.—Tyler 2013, orig. petition). However, to do so, the party seeking appellate review

must specifically request that its appeal be treated as a mandamus petition to invoke this court’s

original jurisdiction. See CMH Homes, 340 S.W.3d at 452; In re J.P.L., 359 S.W.3d 695, 703

(Tex. App.—San Antonio 2011, pet. denied); Adams, 416 S.W.3d at 561; Icon Benefit Adm’rs II,

L.P. v. Mullin, 405 S.W.3d 257, 263 (Tex. App.—Dallas 2013, no pet.); Lucchese, Inc. v. Solana,

388 S.W.3d 343, 349–50 (Tex. App.—El Paso 2012, no pet.); In re D & KW Family, L.P., No. 01-

11-00276-CV, 2012 WL 3252683 (Tex. App.—Houston [1st Dist.] Aug. 9, 2012, orig. proceeding,

no pet.); but see Haffelfinger v. Adams, No. 03-12-00512-CV, 2013 WL 6178570 (Tex. App.—

Austin Nov. 21, 2013, no pet.) (construing appeal as petition for writ of mandamus even though

party did not request it to do so). Here, the Brothers have not requested this court to consider their

appeal, alternatively, as a petition for writ of mandamus. Accordingly, we will not construe their

appeal as such.
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                                  CONCLUSION

Based on the foregoing, we dismiss the appeal for want of jurisdiction.


                                         Marialyn Barnard, Justice




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