
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN






NO. 03-99-00478-CV





In re Jane Vorwerk, Relator





ORIGINAL PROCEEDING FROM MILAM COUNTY

	Section 5(b) of the Texas Probate Code provides that in contested probate matters
a constitutional county court may request the appointment of a statutory probate judge or transfer
the contested portion to district court.  See Tex. Prob. Code Ann. § 5(b) (West Supp. 1999). 
Section 5(b) further provides that the county court, if requested, shall transfer contested probate
matters "according to the motion."  See id.  Relator filed the only motion seeking a transfer from
county court and requested the appointment of a statutory probate judge.  The county court
transferred the matter to district court.  We must determine if the language "according to the
motion" eliminates the county court's discretion and mandates that the county court follow the
movant's request for a particular tribunal. 


Background
	Rose Matyastik, testator, died June 8, 1999.  In her will, she named her son
William Matyastik and her daughter Rose Snider to serve as executors of her estate.  On June 15,
1999, William and Rose (real parties in interest) filed an Application for Probate of Will and
Issuance of Letter Testamentary.  On June 29, 1999, Jane Vorwerk (relator), another daughter
of Ms. Matyastik, filed an Objection to Application and to Appointment of Applicants and Motion
for Assignment of Statutory Probate Judge.  The Milam County Court signed an Order of Transfer
on June 29, 1999, transferring the cause to the 20th District Court of Milam County.  Vorwerk
seeks relief from the transfer order.
	On August 13, 1999, after the transfer from county court, the district court signed
an Order Declaring Jane Matyastik Vorwerk a Vexatious Litigant and Requiring Security.  On
September 1, 1999, the district court signed an Order Admitting Will to Probate and Authorizing
Letters Testamentary.  Vorwerk filed petitions for writs of mandamus and notices of appeal
challenging both district court orders, which are pending before this Court. (1)

Discussion
	Vorwerk contends the county court abused his discretion by transferring the
contested probate matter to district court when she requested the appointment of a statutory
probate judge.  We agree. 
	Section 5(b) provides in pertinent part:

In those counties where there is no statutory probate court, county court at law or
other statutory court exercising the jurisdiction of a probate court, all applications,
petitions and motions regarding probate and administrations shall be filed and
heard in the county court, except that in contested probate matters, the judge of the
county court may on his own motion (or shall on the motion of any party to the
proceeding, according to the motion) request as provided by Section 25.0022,
Government Code, the assignment of a statutory probate judge to hear the
contested portion of the proceeding, or transfer the contested portion of the
proceeding to the district court, which may then hear contested matter [sic] as if
originally filed in district court. 


Tex. Prob. Code Ann. § 5(b) (West 1999) (emphasis added). (2) 
	Under well-settled principles of statutory construction, we must presume that the
legislature intended each word to have a purpose.  K.B. v. N.B., 811 S.W.2d 634, 637 (Tex.
App.--San Antonio 1991, writ denied), cert. denied, 504 U.S. 918 (1992) (citing Cameron v.
Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)).  It is also a rule of statutory
construction that every word, sentence, clause and phrase should be given effect.  University of
Tex. v. Joki, 735 S.W.2d 505, 508 (Tex. App.--Austin 1987, writ denied) (citing Ex parte Pruitt,
551 S.W.2d 706, 709 (Tex. 1977)). Construction of a statute which would make a provision a
useless appendage is not favored by law.  Carson v. Hudson, 398 S.W.2d 321, 323 (Tex. Civ.
App.--Austin 1966, no writ). 
	If the language of the statute is unambiguous, then the court must seek the
legislative intent as found in the plain and common meaning of the words and terms used. 
Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex. 1994); Monsanto Co. v. Cornerstones Mun. Util.
Dist., 865 S.W.2d 937, 939 (Tex. 1993). Common words should be interpreted as they are
commonly used.  Elgin Bank v. Travis County, 906 S.W.2d 120, 121 (Tex. App.--Austin 1995,
writ denied).  Construction of a statute may not be done in isolation from the rest of the statute;
the act must be considered as a whole and not by interpreting a single sentence or phrase. 
Southwestern Bell Tel. Co. v. Public Util. Comm'n, 888 S.W.2d 921, 926 (Tex. App.--Austin
1994, writ denied) (citing Morrison v. Chan, 699 S.W.2d 205, 208 (Tex. 1985)).
	William and Rose contend that the county court has discretion, regardless of a
party's motion, either to transfer the contested matter to district court or to request the
appointment of a statutory probate judge. (3)  We disagree.  If the legislature intended the county
court to have discretion when transferring a contested probate matter, then the phrase "according
to the motion" would be unnecessary.  If that were the legislature's intent, the statute would
simply have provided that the county court may (or shall on the motion of any party to the
proceeding), request the appointment of a statutory probate judge or transfer to district court. 
Under this hypothetical statute, the county court would be required to transfer the contested matter
if requested; however, it would retain discretion to either transfer the matter to district court or
request the appointment of a statutory probate judge.  
	We must presume that the legislature intended the phrase "according to the motion"
to have a purpose and to be given effect.  The phrase is unambiguous and must be given its
common and ordinary meaning.  We believe "according to the motion" means that the request in
a party's motion is controlling and eliminates the county court's discretion when only one motion
is filed.  To interpret section 5(b) as allowing the county court to retain discretion when only one
party requests a particular tribunal, would render the phrase "according to the motion"
meaningless.  An interpretation which ignores a phrase is not favored.  Carson, 398 S.W.2d at
323.  
	Reviewing previous versions of the Probate Code's transfer provision supports our
analysis.  The transfer provision of section 5(b) first appeared in the 63rd Legislature's
amendment of then section 5 which provided "in contested probate proceedings, the judge of the
county court on his own motion, or the parties by agreement may transfer such proceeding to the
district court, which may then hear such proceeding as if originally filed in such court."  Act of
May 24, 1973, 63d Leg., R.S., ch. 610, § 1, 1973 Tex. Gen. Laws 1684, 1684 (Tex. Prob. Code
Ann. § 5(b), since amended).  This version allowed a transfer only if the parties agreed, or if the
county court on its own motion transferred the contested proceeding.  Without the agreement of
all parties, however, the section did not direct that the county court transfer the contested matters.
	The 64th Legislature amended the section to provide "in contested probate matters,
the judge of the county court may on his own motion, or shall on the motion of any party to the
proceeding transfer such proceeding to the district court. . . ."  Act of May 29, 1975, 64th Leg.,
R.S., ch. 701, § 2, 1975 Tex. Gen. Laws 2195, 2195 (Tex. Prob. Code Ann. § 5(b), since
amended).  The result of the amendment was that a party's request to transfer contested matters
to district court removed the county court's discretion and required the county court to transfer
the contested matter to district court.  Lesley v. Lesley, 664 S.W.2d 437, 439-40 (Tex. App.--Fort
Worth 1984, no writ).
	The 70th Legislature amended the phrase to provide "in contested probate matters,
the judge of the county court may on his own motion (or shall on the motion of any party to the
proceeding, according to the motion) request as provided by Chapter 781, Acts of the 68th
Legislature, Regular Session, 1983 (Article 1969b, Vernon's Texas Civil Statutes), the assignment
of a statutory probate judge to hear the contested portion of the proceeding, or transfer the
contested portion of the proceeding to the district court . . . ."  Act of May 26, 1987, 70th Leg.,
R.S., ch. 459, § 4, 1987 Tex. Gen. Laws 2043, 2044-45 (Tex. Prob. Code Ann. § 5(b), since
amended).  The 1987 amendment demonstrates the legislature's intent to provide litigants with
more than a procedure to have contested matters heard in a forum other than the county court,
which does not require the judge to be a licensed attorney.  See Tex. Const. art. V, § 15.  The
amendment also provides litigants with an opportunity to request which court, if only one motion
is filed, will hear the contested matter.  
	We conclude, therefore, that if only one party requests a transfer from a
constitutional county court under section 5(b), the county court is without discretion to ignore the
party's request, and must transfer the contested matter "according to the motion." (4)  Here,
Vorwerk presented the county court with a motion requesting only the appointment of a statutory
probate judge; but the county court transferred the contested matters to district court.  We hold
that the county court abused his discretion by ignoring the only request on file.  In addition,
Vorwerk does not have an adequate remedy by appeal.  See Forlano v. Joyner, 906 S.W.2d 118,
120 (Tex. App.--Houston [1st Dist.] 1995, no writ) (transfer order that did not resolve any claim,
was neither severable nor appealable). 

Conclusion

	Accordingly, we conditionally grant the writ of mandamus with instructions to the
county court to vacate his June 29, 1999 order and request the appointment of a statutory probate
judge as provided in Texas Probate Code section 5(b).  We are confident that the county court will
vacate his June 29, 1999 order in accordance with this opinion, and the writ will only issue if he
fails to do so.  We overrule Vorwerk's motion for emergency relief. 
	In light of our disposition of the petition for mandamus challenging the transfer
order, we set aside all orders of the district court including the order declaring Jane Vorwerk a
vexatious litigant and requiring security, dated August 13, 1999, and the order admitting the will
to probate and authorizing letters testamentary, dated September 1, 1999.


 

 Lee Yeakel, Justice
Before Justices Jones, B. A. Smith and Yeakel
Mandamus Conditionally Granted
Filed:   November 30, 1999
Publish
1.        The following are the related pending matters: In re Jane Vorwerk, 03-99-538-CV (petition 
for writ of mandamus challenging vexatious litigant order); In re Jane Vorwerk, 03-99-549-CV
(petition for writ of mandamus challenging order admitting will to probate); Vorwerk v. Matyastik
& Snider, 03-99-592-CV (appeal of vexatious litigant order); and Vorwerk v. Matyastik & Snider,
03-99-694-CV (appeal of order admitting will to probate).  
2.        Milam County does not have a statutory probate court, county court at law or other statutory
court exercising probate jurisdiction.  See Tex. Gov't Code Ann. §§ 25.1681-.1690; 26.266 (West
1988).
3.        They rely on Preston v. Overstreet, 802 S.W.2d 734 (Tex. App.--Amarillo 1990, orig.
proceeding) for their position that section 5(b) is discretionary.  We note, however, that Preston
does not address the circumstances here where only one motion is filed requesting a transfer from
county court.  Preston requested the appointment of a statutory probate judge and the district court
judge, as a party to the proceeding, requested a transfer to district court.  An assigned
constitutional county court judge granted the request for the contested matters to be transferred
to district court. Id. at 734-35.  Preston sought mandamus relief contending that "shall" in the
parenthetical in section 5(b) was mandatory.  The court of appeals concluded that with two
competing motions and without specific guidance or preference to the order in which the motions
were filed, the decision is discretionary and denied leave to file the petition for mandamus.  Id.
at 735.  The court suggested, however, that Preston's argument might have merit if only one party
had made the request for transfer.  Id.
4.        We note that the 76th Legislature again amended section 5(b).  The amendment was
effective August 30, 1999, after Vorwerk filed her request for the appointment of a statutory
probate judge, and provides "[i]f the judge of the county court has not transferred a contested
probate matter to the district court at the time a party files a motion for assignment of a statutory
probate court judge, the county judge shall grant the motion and may not transfer the matter to
district court unless the party withdraws the motion."  Act of May 28, 1999, 76th Leg., R.S., ch.
1389, § 1, 1999 Tex. Gen. Laws 4695, 4695 (to be codified at Tex. Prob. Code Ann. § 5(b)). 
The amendment does not  directly apply to the case before us.  However, we construe the
amendment as a further restriction on the county court's discretion to transfer a contested probate
matter and an indication of the legislature's intention that a party's motion for appointment of a
statutory probate judge must be granted by the county court in most instances.  We express no
opinion concerning whether, under the 1999 amendment, the county court retains the discretion
to transfer the matter to district court if there are competing motions. 

>Conclusion

	Accordingly, we conditionally grant the writ of mandamus with instructions to the
county court to vacate his June 29, 1999 order and request the appointment of a statutory probate
judge as provided in Texas Probate Code section 5(b).  We are confident that the county court will
vacate his June 29, 1999 order in accordance with this opinion, and the writ will only issue if he
fails to do so.  We overrule Vorwerk's motion for emergency relief. 
	In light of our disposition of the petition for mandamus challenging the transfer
order, we set aside all orders of the district court including the order declaring Jane Vorwerk a
vexatious litigant and requiring security, dated August 13, 1999, and the order admitting the will
to probate and authorizing letters testamentary, dated September 1, 1999.


 

 Lee Yeakel, Justice
Before Justices Jones, B. A. Smith and Yeakel
Mandamus Conditionally Granted
Filed:   November 30, 1999
Publish
1.        The following are the related pending matters: In re Jane Vorwerk, 03-99-538-CV (petition 
for writ of mandamus challenging vexatious litigant order); In re Jane Vorwerk, 03-99-549-CV
(petition for writ of mandamus challenging order admitting will to probate); Vorwerk v. Matyastik
& Snider, 03-99-592-CV (appeal of vexatious litigant order); and Vorwerk v. Matyastik & Snider,
03-99-694-CV (appeal of order admitting will to probate).  
2.        Milam County does not have a statutory probate court, county court at law or other statutory
court exercising probate jurisdiction.  See Tex. Gov't Code Ann. §§ 25.1681-.1690; 26.266 (West
1988).
3.        They rely on Preston v. Overstreet, 802 S.W.2d 734 (Tex. App.--Amarillo 1990, orig.
proceeding) for their position that section 5(b) is discretionary.  We note, however, that Preston
does not address the circumstances here where only one motion is filed requesting a transfer from
county court.  Preston requested the appointment of a statutory probate judge and the di