                NUMBER 13-12-00199-CV

                  COURT OF APPEALS

           THIRTEENTH DISTRICT OF TEXAS

             CORPUS CHRISTI - EDINBURG

GRADY DOWELL,                                           Appellant,

                              v.

GRACIE QUIROZ, AS ADMINISTRATRIX
OF THE ESTATE OF
MARIO GONZALEZ LIRA, NOE LIRA,
MARIA ANGELES LIRA, MARILYN GUTIERREZ
ANNETTE GUTIERREZ, NANCY GUTIERREZ
AND DAVID GUTIERREZ,                                    Appellees.


                NUMBER 13-12-00583-CV
          IN THE ESTATE OF MARIO GONZALEZ LIRA



         On appeal from the County Court at Law No. 2
                 of Cameron County, Texas.
                         MEMORANDUM OPINION
               Before Justices Rodriguez, Garza, and Perkes
                 Memorandum Opinion by Justice Perkes
      On February 26, 2015, this Court issued a memorandum opinion in this case. On

March 13, 2015, appellees filed a motion for rehearing, and on March 17, 2015, appellant

filed a motion for rehearing. We deny the rehearings, but we withdraw our memorandum

opinion of February 26, 2015, and its accompanying judgment, and substitute the

following as the opinion and judgment of the court.

      In appellate cause number 13-12-00199-CV, Grady Dowell appeals the statutory

county court’s judgment against him on the survival and wrongful death actions brought

by Gracie Quiroz, individually and as the administrator of the estate of Mario Gonzalez

Lira, Noe Lira, Maria Angeles Lira, Marilyn Gutierrez, Annette Gutierrez, Nancy Gutierrez,

and David Gutierrez (collectively “the family”). In appellate cause number 13-12-00583-

CV, the family appeals the statutory county court’s denial of its turnover request, which

the family pursued to recover damages awarded in the survival and wrongful death

actions in appellate cause number 13-12-00199-CV. Our analysis of the two cause

numbers allows us to consolidate them into one opinion. Because the statutory county

court lacked subject matter jurisdiction over the survival and wrongful death actions in

appellate cause number 13-12-00199-CV, we vacate its judgment in that cause number

and dismiss the cause. The turnover request in appellate cause number 13-12-00583-

CV that was premised on the survival and wrongful death award from appellate cause

number 13-12-00199-CV is rendered moot, and we vacate the judgment in appellate

cause number 13-12-00583-CV and dismiss the cause.
                                      2
                                           I. BACKGROUND

        On New Year’s Day in Buffalo, New York, Dowell, a New York resident, drove while

intoxicated and struck bicyclist Mario Gonzalez Lira, killing him. Quiroz, Mario’s sister,

began probate proceedings in Cameron County, asserting Mario was a Cameron County

resident.1 The family then brought survival and wrongful death claims against Dowell in

Cameron County Court at Law Number 2. As the sole ground for jurisdiction, the family

asserted that Cameron County Court at Law Number 2 “possesses jurisdiction because

this controversy is incident to an estate.”

        Dowell pleaded guilty in New York to driving while intoxicated and criminally

negligent homicide. Based on Dowell’s guilty plea, the statutory county court granted

the family’s motion for partial summary judgment, holding Dowell liable on the family’s

survival and wrongful death claims. The subsequent trial determined the damages on

those claims.

                                II. SUBJECT MATTER JURISDICTION

        By his supplemental issue in appellate cause number 13-12-00199-CV, Dowell

argues that Cameron County Court at Law Number 2 lacked subject matter jurisdiction to

hear the family’s survival and wrongful death claims.                In attacking the two potential

sources of jurisdiction, Dowell contends: (1) Cameron County Court at Law Number 2’s

probate jurisdiction does not extend to survival and wrongful death claims like a probate

court’s jurisdiction; and (2) the family pleaded damages in excess of Cameron County

Court at Law Number 2’s statutory jurisdictional amount limit.


        1  Trial testimony revealed Mario had not lived in Texas since 1979 and lived in Buffalo, New York
at the time of the accident.
                                                    3
A.     Standard of Review

       “[S]ubject-matter jurisdiction is essential to a court’s power to decide a case.”

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000).               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). It can be raised for the first time on appeal. Id. at 445. “If

the trial court lacks subject matter jurisdiction, the appellate court can make no order other

than reversing the judgment of the court below and dismissing the cause.”             City of

Garland v. Louton, 691 S.W.2d 603, 605 (Tex. 1985).

       Whether a court has subject matter jurisdiction is a question of law we review de

novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We

review the family’s pleadings to determine whether it has “affirmatively demonstrate[d]

the court’s jurisdiction to hear the cause.” Tex. Ass’n of Bus., 852 S.W.2d at 446; see

Ward v. Malone, 115 S.W.3d 267, 269 (Tex. App.—Corpus Christi 2003, pet. denied) (“It

is incumbent upon the pleading party to allege sufficient facts to affirmatively show that

the trial court has subject matter jurisdiction.”). We “construe the pleadings in favor of

the plaintiff and look to the pleader’s intent.” Miranda, 133 S.W.3d at 226; Tex. Ass’n of

Bus., 852 S.W.2d at 446 (citations omitted). Regarding a plaintiff’s responsibility to plead

an amount in controversy that falls within a court’s prescribed jurisdictional limits, it is

presumed a trial court has jurisdiction “unless lack of jurisdiction affirmatively appears on

the face of the petition.” Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 804

(Tex. 1989) (citation omitted).




                                              4
        In reviewing the jurisdiction statutes, our primary objective is to give effect to the

Legislature’s intent. TEX. GOV’T CODE ANN. § 312.005 (West, Westlaw through 2013 3d

C.S.); Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). “The plain meaning of the

text is the best expression of legislative intent unless a different meaning is apparent from

the context or the plain meaning leads to absurd or nonsensical results.” Molinet, 356

S.W.3d at 411; see City of Waco v. Kelley, 309 S.W.3d 536, 542 (Tex. 2010).

B.      Probate Jurisdiction

        In its pleadings, the family alleged Cameron County Court of Law Number 2 had

jurisdiction because the survival and wrongful death claims were “incident to an estate”

that had been opened in Cameron County. As a statutory county court, see TEX. GOV’T

CODE ANN. § 25.0331(a)(2),2 Cameron County Court at Law Number 2’s jurisdiction over

matters “incident to an estate” is outlined by section 5A(a) of the Texas Probate Code.3

See Act of May 30, 1993, 73rd Leg., R.S., ch. 957, § 6, 1993 Tex. Gen. Laws 4081, 4161–

62, repealed by Act of May 31, 2009, 81st Leg., R.S., ch. 1351, § 12(h), 2009 Tex. Gen.

Laws 4273, 4279 (defining “matters incident to an estate” for statutory county courts). In


        2  Cameron County Court at Law Number 2 is not a statutory probate court. Hartley v. Coker, 843
S.W.2d 743, 746 (Tex. App.—Corpus Christi 1992, no pet.). “Statutory county courts exercising probate
jurisdiction are not statutory probate courts under the [Probate] Code[] unless their statutorily designated
name includes the term probate.” Schuele v. Schuele, 119 S.W.3d 822, 824 (Tex. App.—San Antonio
2003, no pet.) (citation omitted); Green v. Watson, 860 S.W.2d 238, 242 (Tex. App.—Austin 1993, no writ)
(citation omitted). Cameron County Court at Law Number 2’s statutorily given title does not include the
term “probate.” See TEX. GOV’T CODE ANN. § 25.0331 (West, Westlaw through 2013 3d C.S.).

        3  At the time the family filed its claims, section 5A of the Texas Probate Code outlined the probate
jurisdiction of statutory county courts. The Legislature repealed that section in 2009 as part of the
replacement of the Probate Code with the Estates Code. See Act of May 31, 2009, 81st Leg., R.S., ch.
1351, § 12(h), 2009 Tex. Gen. Laws 4273, 4279. Because this action was filed before the effective date
of the statutory change, we apply the repealed Probate Code sections. See id. § 12(i) (“The changes in
law made by this section apply only to an action filed or a proceeding commenced on or after the effective
date of this Act.”).

                                                     5
the absence of the Legislature’s inclusion of a matter in the types of claims a court

exercising probate jurisdiction can hear, we use the “controlling issue test” to determine

whether the matter falls within the court’s jurisdiction. See In re Puig, 351 S.W.3d 301,

304 (Tex. 2011). Under that test, a suit is “incident to an estate when the controlling

issue is the settlement, partition, or distribution of the estate.” Id. (citation omitted). The

Texas Supreme Court has determined, however, that “[t]he controlling issue in wrongful

death and survival actions is not the settlement, partition, and distribution of the estate.”

See Palmer v. Coble Wall Trust Co., 851 S.W.2d 178, 181 (Tex. 1992). If Cameron

County Court at Law Number 2 has probate jurisdiction over the survival and wrongful

death claims, it must come from the Probate Code’s express inclusion of those claims for

statutory county courts.

       Cameron County Court at Law Number 2 “does not have the jurisdiction of a

statutory probate court granted statutory probate courts by the Texas Probate Code.”

TEX. GOV’T CODE ANN. § 25.0003(f); compare Act of May 30, 1993, 73rd Leg., R.S., ch.

957, § 6, 1993 Tex. Gen. Laws 4081, 4161–62 (repealed 2009) (outlining statutory county

courts’ jurisdiction), with Act of May 19, 1989, 71st Leg., R.S., ch. 1035, § 3, 1989 Tex.

Gen. Laws 4162, 4163–64, amended by Act of May 30, 1993, 73rd Leg., R.S., ch. 957, §

6, 1993 Tex. Gen. Laws 4081, 4162; Act of May 20, 1997, 75th Leg., R.S., ch. 1302, § 1,

1997 Tex. Gen. Laws 4954, 4954–55; Act of April 26, 1999, 76th Leg., R.S., ch. 64, § 1,

1999 Tex. Gen. Laws 422, 422, Act of May 28, 2003, 78th Leg., R.S., ch. 1060, § 4 , 2003

Tex. Gen. Laws 3052, 3054, repealed by Act of May 31, 2009, 81st Leg., R.S., ch. 1351,

§ 12(h), 2009 Tex. Gen. Laws 4273, 4279 (outlining statutory probate courts’ jurisdiction).


                                              6
Unlike statutory county courts, statutory probate courts’ probate jurisdiction extends to

“actions by or against a person in the person’s capacity as a personal representative.”

See Act of May 19, 1989, 71st Leg., R.S., ch. 1035, § 3, 1989 Tex. Gen. Laws 4162, 4164

(repealed 2009).

       The Legislature added this jurisdictional grant in response to Seay v. Hall, wherein

the Texas Supreme Court held that probate courts did not have jurisdiction over survival

and wrongful death claims because those claims were not incident to an estate. See

Palmer, 851 S.W.2d at 181 (explaining that the “readily apparent purpose” of adding the

language was to overrule Seay v. Hall); see also Act of May 17, 1985, 69th Leg., R.S.,

ch. 875, § 1, 1985 Tex. Gen. Laws 2995, 2996 (adding language), amended by Act of

May 19, 1989, 71st Leg., R.S., ch. 1035, § 3, 1989 Tex. Gen. Laws 4162, 4163–64,4 Act

of May 30, 1993, 73rd Leg., R.S., ch. 957, § 6, 1993 Tex. Gen. Laws 4081, 4162; Act of

May 20, 1997, 75th Leg., R.S., ch. 1302, § 1, 1997 Tex. Gen. Laws 4954, 4954–55; Act

of April 26, 1999, 76th Leg., R.S., ch. 64, § 1, 1999 Tex. Gen. Laws 422, 422, Act of May

28, 2003, 78th Leg., R.S., ch. 1060, § 4 , 2003 Tex. Gen. Laws 3052, 3054, repealed by

Act of May 31, 2009, 81st Leg., R.S., ch. 1351, § 12(h), 2009 Tex. Gen. Laws 4273, 4279;

see generally Seay v. Hall, 677 S.W.2d 19, 21–25 (Tex. 1984), overruled as stated in

Palmer, 851 S.W.2d at 181. Although the Seay Court reasoned that “[i]t cannot be

argued seriously” that statutory county courts have dominant jurisdiction over survival and




        4 The 1985 amendment added the language to the end of subsection (b), but the 1987 amendment

moved the language to a new subsection (c), where it remained until the Legislature replaced the Probate
Code. Compare Act of May 17, 1985, 69th Leg., R.S., ch. 875, § 1, 1985 Tex. Gen. Laws 2995, 2996
(adding language to subsection (b)), with Act of May 19, 1989, 71st Leg., R.S., ch. 1035, § 3, 1989 Tex.
Gen. Laws 4162, 4163–64 (moving language to subsection (c)).
                                                   7
wrongful death actions and concluded that “the proper forum for the trial of such cases is

in the state district courts[,]” Seay, 677 S.W.2d at 24, 25, the Legislature amended the

statute to give only probate courts concurrent jurisdiction with district courts over survival

and wrongful death claims. See Gonzalez v. Reliant Energy, Inc., 159 S.W.3d 615, 620

(Tex. 2005) (noting that probate courts’ jurisdiction over survival and wrongful death

claims was statutorily given in the amendment); Palmer, 851 S.W.2d at 181 (stating the

1989 amendment’s purpose was to grant probate courts jurisdiction over survival and

wrongful death actions); compare Act of May 30, 1993, 73rd Leg., R.S., ch. 957, § 6, 1993

Tex. Gen. Laws 4081, 4161–62 (repealed 2009) (outlining statutory county courts’

jurisdiction), with Act of May 19, 1989, 71st Leg., R.S., ch. 1035, § 3, 1989 Tex. Gen.

Laws 4162, 4163–64 (amended 1993, 1997, 1999, 2003, repealed 2009) (outlining

statutory probate courts’ jurisdiction). Lacking a similar statutory provision, statutory

county courts’ probate jurisdiction does not cover survival and wrongful death actions.

See Act of May 30, 1993, 73rd Leg., R.S., ch. 957, § 6, 1993 Tex. Gen. Laws 4081, 4161–

62 (repealed 2009) (outlining statutory county courts’ jurisdiction); see also TEX. GOV’T

CODE ANN. § 25.0003(f) (“A statutory county court does not have the jurisdiction of a

statutory probate court granted statutory probate courts by the Texas Probate Code.”).

       The family argues that its survival and wrongful death suit is “a claim by an estate,”

which section 5A(a) includes as incident to an estate for statutory county courts. See

Act of May 30, 1993, 73rd Leg., R.S., ch. 957, § 6, 1993 Tex. Gen. Laws 4081, 4161–62

(repealed 2009).    Contrary to the family’s assertion that the Legislature added this

provision in 2003, it is in the statute’s original text. See Act of May 17, 1979, 66th Leg.,


                                              8
R.S., ch. 713, § 3, 1979 Tex. Gen. Laws 1740, 1741. The Seay Court considered that

language and concluded it did not cover survival and wrongful death actions because the

Texas Probate Code defined “claims” as certain enumerated “liabilities of a decedent and

debts due the family.” See Seay, 677 S.W.2d at 23. The Legislature’s solution to the

probate courts’ lack of jurisdiction over survival and wrongful death claims did not involve

that language; the Legislature added new language to grant probate courts jurisdiction.

See Act of May 17, 1985, 69th Leg., R.S., ch. 875, § 1, 1985 Tex. Gen. Laws 2995, 2996

(amended 1987, 1989, 1993, 1997, 1999, 2003, repealed 2009); Palmer, 851 S.W.2d at

181. The addition is the source of the jurisdiction, and the family cannot rely on a

statutory provision that predates Seay for jurisdiction created by language added after

Seay.

        The family also relies on Tovias v. Wildwood Properties Partnership, a dominant

jurisdiction case. See 67 S.W.3d 527, 528–29 (Tex. App.—Houston [1st Dist.] 2002, no

pet.). At issue in Tovias was whether the district court erred in granting a plea to the

jurisdiction in a wrongful death action that the Toviases first filed in Cameron County Court

at Law Number 2 before filing it in the district court. See id. at 529. Our sister appellate

court held that the district court erred in granting the plea to the jurisdiction because “[t]he

proper procedure for asserting dominant jurisdiction in such circumstances is a plea in

abatement.”5 Id. Before reaching that conclusion, the court stated in dicta and without

discussion that Cameron County Court at Law Number 2 had jurisdiction over the


         5 “The distinction matters because of the different relief available—dismissal when granting a plea

to the jurisdiction versus abatement when granting a plea in abatement.” Tovias v. Wildwood Props.
P’ship, L.P., 67 S.W.3d 527, 529 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

                                                     9
wrongful death action under section 5A(a) of the Texas Probate Code. See id. In light

of our analysis, we disagree with the Tovias Court on that assumption.6

        Because the Legislature opted against giving statutory county courts the same

probate jurisdiction as probate courts to hear survival and wrongful death claims as

“incident to an estate,” Cameron County Court at Law Number 2 did not have subject

matter jurisdiction to hear the family’s survival and wrongful death claims “incident to an

estate.”

C.      Amount in Controversy

        Independent of its probate jurisdiction, Cameron County Court at Law Number 2’s

jurisdiction extends to “civil cases in which the amount in controversy exceeds $500 but

does not exceed $1 million, excluding interest.” TEX. GOV’T CODE ANN. § 25.0332(a)(2).

Dowell contends that by requesting “a maximum of $4.5 million” in damages, the family

pleaded itself out of that court. The family argues that “the monetary amounts are

irrelevant when related to a probate proceeding[,]” and suggests the $4.5 million includes

an unspecified amount of exemplary damages that we should subtract. We agree that if

the family’s wrongful death claim had been “incident to an estate,” a jurisdictional ground

we have already excluded, then monetary limits would not apply. See, e.g., Womble v.

Atkins, 331 S.W.2d 294, 299 (Tex. 1960) (“The county court when sitting in probate is not

subject to a monetary jurisdictional limit.”); Hailey v. Siglar, 194 S.W.3d 74, 76 (Tex.




        6 Although the family cautions that disagreeing with Tovias violates stare decisis, we note that the

decisions of sister appellate courts may be persuasive but are not binding on this Court. See, e.g., In re
Riggs, 315 S.W.3d 613, 615 n.2 (Tex. App.—Fort Worth 2010, no pet.); In re Swift Transp. Co., Inc., 311
S.W.3d 484, 490 n.2 (Tex. App.—El Paso 2009, no pet.); see also Garza v. Deleon, No. 13-13-00342-CV,
2013 WL 6730177, at *5 (Tex. App.—Corpus Christi Dec. 19, 2013, no pet.) (mem. op.).
                                                    10
App.—Texarkana 2006, pet. denied) (“The monetary limitations on a statutory county

court’s jurisdiction in civil cases do not limit its probate jurisdiction.” (citing English v.

Cobb, 593 S.W.2d 674, 675 (Tex. 1979))). However, in this case, monetary limits do

apply. Moreover, it does not appear from the family’s pleading that the $4.5 million

includes exemplary damages. The family requested “a maximum of $4.5 million” and

“punitive damages in an amount not less than ten (10) times actual damages.” We do

not therefore subtract an unspecified amount from the pleaded amount to create

jurisdiction.

        The family cites Asociacion Nacional de Pescadores a Pequena Escala O

Artesanales de Columbia (ANPAC) v. Dow Quimica de Columbia, S.A., see 988 F.2d 559

(5th Cir. 1993), for the proposition that we should divide the amount it pleaded by the

number of plaintiffs and assess the amount in controversy per plaintiff.                        ANPAC is

inapposite; it is a federal case7 discussing federal diversity jurisdiction—not the Texas

Government Code or Texas common law. See id. at 563–66.8 The family’s survival

and wrongful death claims are derivative claims. See In re Labatt Food Serv., L.P., 279



        7  “Precedent of the Fifth Circuit, though persuasive, is not binding on this court.” J & J Sports
Prods., Inc. v. JWJ Mgmt., 324 S.W.3d 823, 830 (Tex. App.—Fort Worth 2010, no pet.) (citing Penrod
Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993)).

          8 Moreover, the Fifth Circuit premised non-aggregation on the fact that the plaintiffs sought

individual relief rather than a per capita share of a common claim, see Asociacion Nacional de Pescadores
a Pequena Escala O Artesanales de Columbia (ANPAC) v. Dow Quimica de Columbia, S.A., 988 F.2d 559,
563 (5th Cir. 1993), and it distinguished its own precedent “in which the plaintiffs were seeking essentially
derivative recovery for injury to another person . . . even though that recovery must be divided according to
the Texas laws of descent and distribution[,]” id. at 564. The estate’s survival and wrongful death claims,
on the other hand, are derivative claims. See In re Labatt Food Serv., L.P., 279 S.W.3d 640, 646 (Tex.
2009) (orig. proceeding) (defining wrongful death actions as “entirely derivative of the decedent’s rights.”);
Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex. 1992) (“The survival action, as it is sometimes
called, is wholly derivative of the decedent’s rights.”); see also TEX. CIV. PRAC. & REM. CODE ANN. §§ 71.003
(wrongful death), 71.021 (survival) (West, Westlaw through 2013 3d C.S.).
                                                     11
S.W.3d 640, 646 (Tex. 2009) (orig. proceeding) (defining wrongful death actions as

“entirely derivative of the decedent’s rights.”); Russell v. Ingersoll-Rand Co., 841 S.W.2d

343, 345 (Tex. 1992) (“The survival action, as it is sometimes called, is wholly derivative

of the decedent’s rights.”); see also TEX. CIV. PRAC. & REM. CODE ANN. §§ 71.003

(providing that a wrongful-death action is available only when “the individual injured would

have been entitled to bring an action for the injury . . . .); 71.021(a)–(b) (premising survival

action on personal injury or liability of a decedent) (West, Westlaw through 2013 3d C.S.).

One injury underlies the damages request; the plaintiffs did not join separate claims

premised on individual or unique injuries.         Although the wrongful-death recovery is

apportioned amongst the plaintiffs, “all the persons within the classes named . . . recover

one sum. . . [U]nder the statute there can be but one action.” Tex. & P. Ry. Co. v. Wood,

199 S.W.2d 652, 654 (Tex. 1947). Thus, we disagree that the jurisdictional amount in

controversy should be assessed per plaintiff in their survival and wrongful death actions

that they are jointly entitled to bring.

       It is clear from the family’s pleadings and brief that they presumed the statutory

county court had jurisdiction pursuant to the court’s probate jurisdiction and that the family

therefore did not need to confine its damages request to the court’s non-probate

jurisdictional maximum. Cameron County Court at Law Number 2, however, did not

have probate jurisdiction to hear the family’s claims, and we cannot overlook the family’s

request for damages in excess of the court’s statutorily-defined jurisdictional allowance

for non-probate claims. Accordingly, Cameron County Court at Law Number 2 did not




                                              12
have jurisdiction under either its probate or general jurisdiction. We sustain Dowell’s

supplemental issue.

                                      III. CONCLUSION

       Because Cameron County Court at Law Number 2 did not have subject matter

jurisdiction over the family’s survival and wrongful death claims, we vacate the trial court’s

judgment in appellate cause number 13-12-00199-CV, assess costs against the party

incurring them, and dismiss the cause. See TEX. R. APP. P. 43.2(e); Brownsville Indep.

Sch. Dist. Bd. of Trs. v. Brownsville Herald, 831 S.W.2d 537, 539 (Tex. App.—Corpus

Christi 1992, no writ). Based on this conclusion, the family’s appeal of the trial court’s

denial of its turnover request premised on the survival and wrongful death claims is moot,

and we vacate the judgment in appellate cause number 13-12-00583-CV, assess costs

against those incurring them, and dismiss the cause.          See Brownsville Herald, 831

S.W.2d at 539.

                                                  GREGORY T. PERKES
                                                  Justice

Publish
TEX. R. APP. P. 47.2(b)

Delivered and filed the
2nd day of April, 2015.




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