                                                                                         ACCEPTED
                                                                                    03-14-00511-CV
                                                                                           4422058
                                                                          THIRD COURT OF APPEALS
                                                                                     AUSTIN, TEXAS
                                                                                3/9/2015 2:05:50 PM
                                                                                  JEFFREY D. KYLE
                                                                                             CLERK
                        NO. 03-14-00511-CV
_________________________________________________________________
                                                         FILED IN
                     IN THE COURT OF APPEALS      3rd COURT OF APPEALS
             FOR THE THIRD SUPREME JUDICIAL DISTRICTAUSTIN, TEXAS
_________________________________________________________________
                                                  3/9/2015 2:05:50 PM
                                                               JEFFREY D. KYLE
                                MARY BLANCHARD                      Clerk
                             Respondent/Appellant

                                       v.

   GRACE ANN MCNEILL, IN HER CAPACITY AS SUCCESSOR TRUSTEE AND
      BENEFICIARY OF THE DIXIE LEE HUDLOW LIVING TRUST, AND
  HAROLD MCNEILL, AS BENEFICIARY OF THE DIXIE LEE HUDLOW LIVING
          TRUST, AND THE DIXIE LEE HUDLOW LIVING TRUST,
                      Petitioners/Appellees.
_________________________________________________________________

                   From the Probate Court No. 1
                       Travis County, Texas
                 Trial Court No. C-1-PB-13-001179
_________________________________________________________________

               PETITIONER, MARY BLANCHARD'S, MOTION
                       FOR REHEARING EN BANC
_________________________________________________________________

TO THE HONORABLE JUSTICES OF SAID COURT OF APPEALS:

     COMES NOW, Mary Blanchard, ("MB") Petitioner, by and through

her Attorney in this proceeding and files this, her Motion For

Rehearing   En   Banc   of    this   Court's   Opinion   and   Order   denying

Petitioner Blanchard's Petition For Writ Of Mandamus and, in

support of an Order Granting Rehearing, and the setting aside of

this Court's Order and Opinion Denying Relief dated January 23rd,

2015, would show the Court the following:




                                       1
     FACTS ESTABLISHED BY THE RECORD PROVE THAT THE TRANSFER
     ORDER VIOLATED TEXAS ESTATES CODE SECTION 38.002(c)(3)

                                I.

     1. The Case in which the Probate Court entered its Order of

Transfer was styled Estate of Dixie Lee Hudlow, Deceased, Cause No.

1-PB-12-00179. The "case snatching" Attorney filed the Motion to

Transfer in the Main Probate case -- in which his client, Grace

McNeill, was acting as the Executrix of the Estate of Dixie Lee

Hudlow.

     2.   The "snatched case" pending before the 151st Judicial

District Court of Harris County, Texas; Cause No. 2014-27275, had

the style Mary Blanchard, Plaintiff v. Grace McNeill, Successor

Trustee and Alleged Beneficiary of the Dixie Lee Hudlow Living

Trust and Harold McNeill in his Alleged capacity as beneficiary of

the Dixie Lee Hudlow Living Trust, and the Dixie Lee Hudlow Living

Trust.

     3.   The   Declaratory   Judgment   Action   which   the   "case

snatching" Attorney for Grace McNeill filed in the Probate Court

No. 1 of Travis County, Texas was styled In Re: Dixie Lee Hudlow

Living Trust Grace Anne McNeill, as Successor Trustee of the Dixie

Lee Hudlow Living Trust as Amended; Cause No. C-1-PB-000693.

     4.   NONE of the actions to which McNeill's Motion To Transfer

related were brought against, or by, the personal representative of

the Estate of Dixie Lee Hudlow, Executrix Grace Anne McNeill. Nor
                                 2
was Harold McNeill named as a Defendant or Plaintiff in his

capacity as a beneficiary of the Estate of Dixie Lee Hudlow.

      5.   Both the Declaratory Judgment Action brought by Grace

Anne McNeill and the Houston Action, brought by Mary Blanchard

raised causes of action, and claims, related solely to the Dixie

Lee Hudlow Living Trust.

      6.   The Dixie Lee Hudlow Living Trust ("DLHLT") was not a

testamentary trust. The DLHLT was formed long before Dixie Lee

Hudlow's death.

      7.   Under the above facts, and under the legal authorities

set out below, a case involving a Living Trust is not "related to"

a proceeding before a Statutory Probate Court under the clear

statutory definition of Texas Estates Code Sec. 38.002(c)(3) and is

not subject to transfer under Texas Estates Code Sec. 38.001.

      8.   This Court's ruling to the contrary violates the clear

statutory language of Texas Estates Code Sec. 38.002(c)(3) which

limits the Statutory Probate Court's transfer power.

     LEGAL ARGUMENT AND AUTHORITY SUPPORTING REHEARING EN BANC

                                II.


1.    THE PANEL OPINION APPLIED THE WRONG STANDARD OF REVIEW -- A
      TRIAL COURT HAS NO DISCRETION TO VIOLATE STATUTORY LAW.

The applicable standard of review for determining whether a trial

court has abused its discretion is described as follows in Terex,

                                 3
supra,   a   decision   the   panel   issuing   the   Opinion   and   Order

purportedly relied on:

     An appellate court rarely interferes with a trial court's
     exercise of discretion. A clear abuse of discretion
     warranting correction by mandamus occurs when a court
     issues a decision which is without basis or guiding
     principles of law. See Johnson v. Fourth Court of
     Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig.
     proceeding). With respect to resolution of factual issues
     or matters committed to the trial court's discretion, the
     reviewing court may not substitute its judgment for that
     of the trial court. Walker, 827 S.W.2d at 839-40. The
     relator must therefore establish that the trial court
     could reasonably have reached only one decision. Id. Even
     if the reviewing court would have decided the issue
     differently, it cannot disturb the trial court's decision
     unless it is shown to be arbitrary and unreasonable. Id.
     With respect to a trial court's determination of the
     legal principles controlling its ruling, the standard is
     much less deferential. A trial court has no "discretion"
     in determining what the law is or applying the law to the
     facts. Thus, a clear failure by the trial court to
     analyze or apply the law correctly will constitute an
     abuse of discretion, and may result in appellate reversal
     by extraordinary writ. Walker, 827 S.W.2d at 840.
     Here the Opinion and Order reads as if the trial judge made

some determination of fact in making the illegal transfer order

that a Court of Appeals can not disturb. No such factual decision

was made. The trial judge simply exercised a statutory power he did

not have.

     In doing so the trial court had no discretion it could abuse.

Contrary to the language in the panel's Order and Opinion this

Court, on Mandamus, was required to review the trial court's legal

error in applying the transfer statute (Texas Estates Code Sec.

38.002(c)(3) "de novo" without deference.

     The Panel's Opinion and Order does not do so. Rehearing En

                                      4
Banc should be granted.

2.   CLAIMS AND CAUSES OF ACTION CONCERNING THE OWNERSHIP OF
     PROPERTY OF A LIVING TRUST OR QUESTIONS CONCERNING THE
     PROPER BENEFICIARIES OF A LIVING TRUST ARE NOT "RELATED TO"
     AN ESTATE PROCEEDING AND ARE NOT SUBJECT TO TRANSFER UNDER
     TEXAS ESTATES CODE SEC. 38.002(C)(3).


     The Texas Legislature chose to place limits on the types of

cases which a Statutory Probate Court may transfer from a District

Court. Those limitations appear in Texas Estates Code Sec. 38.002

which sets out such limitations in detail.   After listing various

limitations which are inapplicable here, the statute states the

following limitation(s) on Statutory Probate Court transfer power:

     (c) For purposes of this code, in a county in which there
     is a statutory probate court, a matter related to a
     probate proceeding includes:

          (1) all matters and actions described in Subsections
     (a) and (b); and

          (2) any cause of action in which a personal
     representative of an estate pending in the statutory
     probate court is a party in the representative's capacity
     as personal representative.
     The Personal Representative of the Estate of Dixie Lee Hudlow,

Executrix Grace Anne McNeill was not a named party in either the

Declaratory Judgment Action her "case snatching" Attorney brought

or in the Houston case brought by Blanchard in the 151st Judicial

District Court of Harris County, Texas.

     Neither the case transferred -- Blanchard's District Court

case -- nor Grace McNeill's Declaratory Judgment action brought in

her alleged capacity as Successor Trustee of the Dixie Lee Hudlow


                                 5
Living Trust were "related to" to Estate Proceeding involving the

Estate of Dixie Lee Hudlow, Deceased.

      This Court's ruling to the contrary violates the clear wording

of the statute -- Texas Estates Code Sec. 38.002 which proscribes

rather than grants any authority of a Statutory Probate Court to

transfer cases to itself involving Living Trusts over which the

District Courts have concurrent jurisdiction.

      This Court's Order and Opinion cites In Re Terex Corporation,

123   S.W.3d   673    (Tex.App.-El      Paso   2003)(orig.    proceeding)      as

supposed support for its decision to allow the illegal transfer to

stand.   Terex involved a case which the El Paso Court of Appeals
described as follows:

      This is an original proceeding in mandamus. Relators seek
      a writ of mandamus requiring the Honorable Max Higgs,
      Judge of the El Paso County Probate Court, to vacate his
      September 22, 2003 order transferring cause number 048-
      187504-01, styled Matilde C. Talavera, Individually and
      as Representative of the Estate of Emilio C. Talavera,
      Deceased, Frank Talavera, Richard Talavera, Lorrie Ann
      Talavera and Tracy Talavera v. Anthony Crane Rental, L.P.
      d/b/a Maxim Crane Works; Curtis Shiflet; David Keener;
      Keith Clark; Rex Whalen; Crane & Rigging Consultants;
      Harnischfeger Corporation; Terex Lifting, a Division of
      Terex Corporation; and Terex Cranes, Inc., from the 48th
      District Court of Tarrant County to the El Paso County
      Probate Court and consolidating it with cause number
      2002-P00893, styled In Re: The Estate of Emilio Talavera,
      Deceased.

See Terex at Pg. 673.
      Terex involved a transfer of an action in which the personal

representative       of   an   Estate   was    a   named   party.   It   has   no

application here and does not support this Court's Panel Order and

                                        6
Opinion upholding the transfer of a case from District Court which

had no personal representative(s) of an Estate as a Party(s)

     Further, to the extent Terex opines that the Statutory Probate

Court's power to transfer is "jurisdictional" rather than "a matter

of venue" its criticism of the reasoning to the contrary in Reliant

Energy, Inc. v. Gonzalez, 102 S.W.3d 868, 874-75 (Tex.App.-Houston

[1st Dist.] 2003, pet. granted) was thoroughly debunked, and then

rejected, by the Supreme Court of Texas in Gonzalez v. Reliant

Energy, Inc., 159 S.W.3d 615 (Tex. 2005) which upheld the First

Court of Appeals reasoning in Reliant.

     McNeill had the right to seek transfer of venue under the

"first filed rule" through pursuit of a Plea in Abatement or other

venue filing(s). But that is all she had.

                            CONCLUSION

     Once more, as it did in In Re Houston Northwest Part, 98

S.W.3d 777 (Tex.App.-Austin 2003 this Court of Appeals attributes a

pooh bah power to a Statutory Probate Court which it does not have

-- the "snatching" of cases from District Courts over which the

Statutory Probate Court has, at best, mere concurrent jurisdiction

subject, in its exercise, to the application of the Venue statutes.

     This Court's violation of the Texas Supreme Court's reasoning

in Gonzales in this case is merely the same legal chapter -- second

verse.

     The transfer order "snatching" a Living Trust case from the

Harris County District Court was illegal and in excess of the

Statutory Probate Court's power and jurisdiction. Mandamus lies to

                                 7
correct such an abuse of transfer power. See In Re Estate Of

Aguilar, 04-13-00690-CV (Tex.App.-San Antonio 6-4-2014)(m.o.)

       The full Court of Appeals should reconsider this matter En

Banc and then issue an Order and Opinion directing the Honorable

Presiding Judge of Probate Court No. 1 of Travis County, Texas to

withdraw and set aside his illegal order of transfer.

                                    Respectfully submitted,

                                    s/Joe Alfred Izen, Jr.
                                    ____________________________
                                    Joe Alfred Izen, Jr.
                                    Attorney for Appellant Blanchard
                                    TBC # 10443500
                                    5222 Spruce Street
                                    Bellaire, Texas 77401
                                    (713) 668-8815
                                    (713) 668-9402 FAX
                                    jizen@comcast.net

                     CERTIFICATE OF COMPLIANCE

I certify that this document was created in a DOS Word Star 6
format and contains 1,856 words.

                                   s/Joe Alfred Izen, Jr.
                                   _____________________
                                   Joe Alfred Izen, Jr.

                         CERTIFICATE OF SERVICE

     I certify that a true and correct copy of the foregoing
document was sent to Jeffrey T. Knebel, 301 Congress Avenue, Suite
1910, Austin, TX 78701 (fax: 512-542-2011) by facsimile trans-
mission and/or eservice on the 4th day of March, 2015.

                                    s/Joe Alfred Izen, Jr.
                                    _______________________________
                                    Joe Alfred Izen, Jr.

BLANCHAR.M4R/TK472



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