                                                                                      ACCEPTED
                                                                                  04-18-00008-CV
                                                                       FOURTH COURT OF APPEALS
                                                                            SAN ANTONIO, TEXAS
                                                                               1/22/2018 10:29 AM




                            No. 04-18-00008-CV

                       Court of Appeals, Fourth District          FILED IN
                                                           4th COURT OF APPEALS
                             San Antonio, Texas             SAN ANTONIO, TEXAS
                                                           1/22/2018 10:29:59 AM
                                                               KEITH E. HOTTLE
                                                                    CLERK
                         In re Maria Cecilia Martinez


                       Relating to Cause No. PR-06-004
                         in the County Court at Law
                              Starr County, Texas


          RESPONSE TO PETITION FOR WRIT OF MANDAMUS

J. Joseph Vale
jvale@atlashall.com
State Bar No. 24084003
O.C. Hamilton, Jr.
och@atlashall.com
State Bar No. 08847000
ATLAS, HALL & RODRIGUEZ, LLP
818 Pecan/P.O. Box 3725
McAllen, Texas 78501
(956) 682-5501 (phone)
(956) 686-6109 (facsimile)




                     Attorneys for Real Parties in Interest
               Maria Iris Trevino and Maria Del Rosario G. Pope




January 22, 2018
                                                Table of Contents

Index of Authorities ...................................................................................................4

Statement of the Case.................................................................................................7

Issues Presented .........................................................................................................8

Cross-Issue Presented ................................................................................................8

Record and Party References .....................................................................................9

Statement of Facts ....................................................................................................10

         1.        The six independent co-executors entered an agreement that
                   required majority agreement as to some decisions. ............................10
         2.        Administration languished without distribution for over a
                   decade. .................................................................................................12
         3.        The co-executors reached a unanimous agreement in open court
                   in November 2016 to take steps to distribute the estate......................12
         4.        The trial court entered an order in January 2017 expressly based
                   on that agreement, and a majority of the executors approved the
                   order.....................................................................................................14
         5.        The trial court denied Co-Executrix Maria Cecilia Martinez’s
                   plea to the jurisdiction in May 2017 and planned to hear other
                   motions. ...............................................................................................15
         6.        This Court dismissed Martinez’s first attempt at mandamus for
                   want of jurisdiction, and the trial court then amended the May
                   2017 Order. ..........................................................................................15
         7.        What remains to be done in the probate administration from
                   Trevino and Pope’s perspective. .........................................................16

Summary of the Argument.......................................................................................17

Mandamus Standard .................................................................................................18

Argument..................................................................................................................19

         I.        Martinez is not entitled to mandamus as to the January 2017
                   Order. {Response to Martinez’s §§ [A], [C]}. ...................................19

                                                              2
                   A.        Martinez failed to strictly comply with Rule 52. ......................19
                   B.        The trial court had the discretion to enforce the co-
                             executors’ unanimous (and later, majority approved)
                             agreement. .................................................................................20
                   C.        Martinez has an adequate appellate remedy. ............................26
                   D.        Laches bars Martinez’s petition as to this order. ......................27

         II.       Martinez is not entitled to mandamus as to the May 2017 Order.
                   {Response to Martinez’s §§ [B], [C]}.................................................29
                   A.    The trial court has fixed the “conversion” issue by signing
                         the January 2018 Order. ............................................................30
                   B.    The trial court had discretion to deny Martinez’s plea to
                         the jurisdiction...........................................................................30
                   C.    Mandamus is not the proper remedy for this ruling. ................ 31

Prayer .......................................................................................................................33

Certificate of Rule 9.4(i) Compliance......................................................................34

Certification of Appendix ........................................................................................35

Certificate of Rule 52.3(j) Compliance....................................................................36

Certificate of Service ...............................................................................................37

Appendices ...............................................................................................................38




                                                               3
                                              Index of Authorities

Cases
Bell Helicopter Textron, Inc. v. Walker,
  787 S.W.2d 954 (Tex. 1990) (orig. proceeding) (per curiam) .............................18

Brown v. Herman,
  852 S.W.2d 91 (Tex. App.—Austin 1993, orig. proceeding) ..... 18, 26–27, 30–31

Callahan v. Giles,
 155 S.W.2d 793 (Tex. 1941) (orig. proceeding) ..................................................27

Crossley v. Staley,
  988 S.W.2d 791 (Tex. App.—Amarillo 1999, no pet.) ........................................21

D’Unger v. De Pena,
 931 S.W.2d 533 (Tex. 1996) (orig. proceeding) (per curiam) ...................... 18, 26

Dodson v. Seymour,
 664 S.W.2d 158 (Tex. App.—San Antonio 1983, no writ) .................................20

Estate of Lee,
  981 S.W.2d 288 (Tex. App.—Amarillo 1998, pet. denied) .............. 22, 23, 24, 26

Furr’s Supermarkets, Inc. v. Mulanax,
  897 S.W.2d 442 (Tex. App.—El Paso 1995, orig. proceeding [leave
  denied]) .................................................................................................................28

Gregory v. Rice,
 678 S.W.2d 603 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.)........ 21

In re Bay Area Citizens Against Lawsuit Abuse,
  982 S.W.2d 371 (Tex. 1998) (orig. proceeding) ..................................................18

In re BP Prods. N. Am., Inc.,
  244 S.W.3d 840 (Tex. 2008) (orig. proceeding) ..................................................26

In re Brent W. Coon, P.C.,
  No. 09-09-00263-CV, 2009 Tex. App. LEXIS 7434, 2009 WL 3030355
  (Tex. App.—Beaumont Sep. 24, 2009, orig. proceeding) (mem. op.).................26



                                                              4
In re Graham,
  971 S.W.2d 56 (Tex. 1998) (orig. proceeding) ....................................................23

In re Hunting,
  No. 05-15-00200-CV, 2015 Tex. App. LEXIS 1684, 2015 WL 737408
  (Tex. App.—Dallas Feb. 20, 2015, orig. proceeding) (mem. op.) .................19, 20

In re Int’l Profit Assocs.,
  274 S.W.3d 672 (Tex. 2009) (orig. proceeding) (per curiam) .............................27

In re Jindal Saw Ltd.,
  264 S.W.3d 755 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding) ........ 27

In re Kuster,
  363 S.W.3d 287 (Tex. App.—Amarillo 2012, orig. proceeding [habeas
  denied]) .................................................................................................................31

In re Laibe Corp.,
  307 S.W.3d 314 (Tex. 2010) (orig. proceeding) (per curiam) .............................27

In re Le,
  335 S.W.3d 808 (Tex. App.—Houston [14th Dist.] 2011, orig.
  proceeding) ...........................................................................................................20

In re McAllen Med. Ctr., Inc.,
  275 S.W.3d 458 (Tex. 2008) (orig. proceeding) ..................................................32

In re Melcher,
  No. 14-16-00130-CV, 2017 Tex. App. LEXIS 2490, 2017 WL 1103549 (Tex.
  App.—Houston [14th Dist.] Mar. 23, 2017, orig. proceeding) (mem. op.) ...28–29

In re Olshan Found. Repair Co.,
  328 S.W.3d 883 (Tex. 2010) (orig. proceeding) ..................................................18

In re Salinas,
  No. 13-09-00599-CV, 2010 Tex. App. LEXIS 395, 2010 WL 196887
  (Tex. App.—Corpus Christi Jan. 20, 2010, orig. proceeding) (mem. op.)
  (per curiam) ..........................................................................................................28

Int’l Awards, Inc. v. Medina,
  900 S.W.2d 934 (Tex. App.—Amarillo 1995, orig. proceeding) ........................28


                                                              5
Kanan v. Plantation Homeowner’s Ass’n,
 407 S.W.3d 320 (Tex. App.—Corpus Christi 2013, no pet.)...............................21

Marshall v. Hobert Estate,
 315 S.W.2d 604 (Tex. Civ. App.—Eastland 1958, writ ref’d) (per curiam) ....... 24

Rivercenter Assocs. v. Rivera,
  858 S.W.2d 366 (Tex. 1993) (orig. proceeding) ............................................27–28

Seay v. Hall,
  677 S.W.2d 19 (Tex. 1984) ..................................................................................22

Shepherd v. Ledford,
  962 S.W.2d 28 (Tex. 1998) ..................................................................................21

Walker v. Packer,
 827 S.W.2d 833 (Tex. 1992) (orig. proceeding) ........................................... 18, 26

Statutes and Rules
Act of May 17, 1979, 66th Leg., R.S., ch. 713, § 3, sec. 5A, 1979 Tex. Gen.
  Laws 1740.............................................................................................................22

Act of May 17, 1985, 69th Leg., R.S., ch. 875, § 1, 1985 Tex. Gen. Laws
 2995 ................................................................................................................22–23

Act of May 31, 2009, 81st Leg., R.S., ch. 1351, 2009 Tex. Gen. Laws 4273...22, 23

Tex. Est. Code Ann. § 307.002 (LexisNexis, Lexis Advance through 2017
  r.s. & 1st c.s.) ..................................................................................................11, 12

Tex. Est. Code Ann. § 31.001 (LexisNexis, Lexis Advance through 2017 r.s.
  & 1st c.s.) ..............................................................................................................24

Tex. Est. Code Ann. § 32.001 (LexisNexis, Lexis Advance through 2017 r.s.
  & 1st c.s.) ..............................................................................................................24

Tex. R. App. P. 52....................................................................................................19

Tex. R. Civ. P. 11 .....................................................................................................21

Texas Probate Code, 54th Leg., R.S., ch. 55, 1955 Tex. Gen. Laws 88 .......... 11, 23


                                                              6
                         Statement of the Case

Nature of the case     Probate administration.
Respondent             Hon. Romero Molina, County Court at Law, Starr
                       County, Texas
Orders from which      January 26, 2017 Pre-Trial Order. M.R. at 113 (Ex. H).
relator seeks relief   May 22, 2017 Order Denying Plea to Jurisdiction. M.R.
                       at 138 (Ex. J).




                                    7
                                  Issues Presented

      1.     The independent co-executors of an estate announced a unanimous

partial settlement of the next steps of the administration in open court through

counsel. The probate court entered an order expressly according to that agreement.

This Court should reject an executor’s mandamus challenge that fails to

acknowledge the open court agreement underlying this order. See Argument § I.

             a.     The co-executors had previously entered an agreement that

      required a majority vote to approve some decisions. This Court should reject

      an executor’s mandamus petition when counsel for five of the six co-executors

      approved the above-mentioned order as to form and substance.

      2.     An independent co-executor filed a “plea to the jurisdiction” asserting

that the probate court “should exercise no further jurisdiction” in the administration.

The probate court denied this plea and intends to rule on the motions before it but

has not yet done so. Mandamus should be denied concerning this order. See

Argument § II.

                               Cross-Issue Presented

      1.     Concerning Issue 1 above, the relator waited four months after the order

was issued and six months after the underlying agreement to file her petition for writ

of mandamus. Her mandamus petition is barred by laches. See Argument § I.D.




                                          8
                           Record and Party References

      Real Parties in Interest Maria Iris Trevino and Maria Del Rosario G. Pope file

this Response pursuant to Rule 52 of the Texas Rules of Appellate Procedure.

Parties will be referred to as in the trial court or by name.

      For ease of reference, Relator Maria Cecilia Martinez’s Exhibits in Support

of Petition for Writ of Mandamus will be cited according to the PDF page number

and will be referred to as “M.R. at {page} (Ex. {letter}).” For example, the first

page of Exhibit A would be cited as “M.R. at 4 (Ex. A).” The transcript filed by

Martinez on January 18, 2018, will be cited as “1/9/18 R.R. at {page}.” The

appendices attached to this response will be referred to as “App. Tab {letter}.”

      Trevino and Pope have also filed a First Supplemental Record on Mandamus

Volume, which will be cited as “Suppl. M.R. at {page}” according to the bates

stamped page number for that volume.




                                           9
                                 Statement of Facts

      This mandamus action returns to this Court after the Court dismissed the

previous version for want of jurisdiction in appellate cause number 04-17-00333-

CV (Martinez I). While Relator Maria Cecilia Martinez’s mandamus petition is

virtually the same as in Martinez I, the trial court has since amended one of the orders

at issue to remove language that arguably “converted” the underlying probate

administration from independent to dependent.

      Three trial court orders are pertinent to this mandamus:

          1. the January 2017 Order signed January 26, 2017, according to a
             partial settlement agreement entered in open court in November 2016
             (M.R. at 113 (Ex. H));
          2. the May 2017 Order signed May 22, 2017, which denied Martinez’s
             plea to the jurisdiction (M.R. at 138 (Ex. J)); and
          3. the January 2018 Order signed January 9, 2018, which amended the
             May 2017 Order by deleting the alleged “conversion” language (Suppl.
             M.R. at 80 (App. Tab H)).

      With the alleged conversion issue resolved, this Court should deny Martinez’s

petition for writ of mandamus as to all issues.

1.    The six independent co-executors entered an agreement that required

majority agreement as to some decisions.

      Ignacia Gutierrez died testate on January 4, 2006. M.R. at 57 ¶ 2 (Ex. E-1).

Through a codicil, Ignacia appointed four of her six children to serve as independent

co-executors with the four to be chosen by a majority vote of the six. Id. at 18 § II

(Ex. A – 1st Codicil). Her children decided otherwise and agreed that all six children

                                          10
would serve as co-executors. Id. at 28 (Ex. C-1). The trial court obliged and ordered

that letters be issued to all six in March 2006. Id. at 26 (Ex. B). The six co-executors

are Maria Celeste G. Narro, Maria Del Rosario G. Pope (a/k/a Maria Rosario G.

Pope), Jose Ignacio Gutierrez, Maria Minerva G. Guerra, Maria Cecilia G. Martinez,

and Maria Iris Trevino (a/k/a Maria Iris G. Trevino). See id.

       The children also agreed “that any significant decisions involving more than

$1,000.00 will be taken by a majority of the six, instead of any individual executors.”

Id. at 38 (Ex. C-2). This agreement implicitly purports to modify the Estates Code’s

default rule, which permits each independent co-executor to act on behalf of the

estate in any decision without requiring the agreement of other co-executors except

for the conveyance of real estate. See Tex. Est. Code Ann. § 307.002 (LexisNexis,

Lexis Advance through 2017 r.s. & 1st c.s.) (App. Tab C). 1


1
  As discussed below, the 2006 Probate Code applies to the pertinent jurisdictional analysis. See
infra Argument § I.B. & n.5. That said, the outcome of this mandamus should be the same under
the Estates Code as well.

Copies of pertinent statutes from the 2006 Probate Code are included in the appendix. The copies
are taken from the 2006 edition of Prof. Stanley M. Johanson’s Texas Probate Code Annotated.
See App. Tabs D–F.

The 2006 Probate Code’s Section 240 was similar to the current Estates Code Section 307.002.
Texas Probate Code, 54th Leg., R.S., ch. 55, § 1, sec. 240, 1955 Tex. Gen. Laws 88, 160, repealed
by Act of May 30, 2009, 81st Leg., R.S., ch. 680, § 10(a), 2009 Tex. Gen. Laws 1512, 1731; App.
Tab D.

The      original     session    law     for     Section     240      is    available   here:
http://www.lrl.texas.gov/scanned/sessionLaws/54-0/SB_97_CH_55.pdf. The repealing session
law      is      available    here:          http://www.lrl.texas.gov/scanned/sessionLaws/81-
0/HB_2502_CH__680.pdf.


                                               11
2.    Administration languished without distribution for over a decade.

      Despite those initial agreements, the estate remains undistributed. See M.R.

at 57 ¶ 2 (Ex. E-1). Contrary to Martinez’s depiction, all executors (including

Martinez) sought the court’s guidance in the passing decade. See id. at 130–31 ¶ 3

(Ex. I-3) (listing Martinez’s numerous motions). Co-Executors Maria Iris Trevino

and Maria Del Rosario G. Pope have recently asked the trial court to exercise its

statutory authority to permit the two of them to sign deeds distributing the portions

of the estate left to them as beneficiaries. See id. at 57–59 (Ex. E-1) (citing Tex. Est.

Code Ann. § 307.002(b) (App. Tab C)). Trevino and Pope have also sought

distribution and approval of their accounting. See id. at 131 ¶ 4 (Ex. I-3).

3.    The co-executors reached a unanimous agreement in open court in

November 2016 to take steps to distribute the estate.

      The record does not support Martinez’s claim that the co-executors are

divided into majority and minority factions with Martinez in the majority and

Trevino and Pope in the minority. See Pet. 6. To the contrary, as recited in the

January 2017 Order, attorneys for all six co-executors announced a unanimous

agreement concerning the next steps in the administration in a November 2016

hearing. See M.R. at 113 (Ex. H); Suppl. M.R. at 11–34. Indeed, counsel for five

of the six co-executors (all except Martinez) signed and approved the January 2017




                                           12
Order as to form and substance. M.R. at 116 (Ex. H). So with regard to the January

2017 Order at least, only Martinez alone arguably constitutes the “minority faction.”

       Martinez does not mention this agreement or provide a transcript of that

hearing to this Court. Trevino and Pope (the co-executors filing this response) have

filed an authenticated transcript of that proceeding. See Suppl. M.R. at 11–34.

       The agreement arose amid disputes concerning the final distribution of the

estate2 and concerned surveys, necessary correction deeds, funds from related

litigation with third parties, a review of the books and records of the estate, an

inventory of cattle on estate ranches, and preparations for the sale of the decedent’s

home. See M.R. at 113–16 (Ex. H); Suppl. M.R. at 11–34. Rigney made no

objection to the agreement in the hearing, and he expressly agreed to terms at the


2
 The nature of these disputes is not relevant to this Court’s analysis in this mandamus. That said,
Trevino and Pope disagree with Martinez’s presentation of these disputes in her mandamus
petition. They note two of these disagreements here.

First, Martinez repeatedly emphasizes the year 1925 as the alleged year of origin for Trevino and
Pope’s proposed property descriptions. E.g., Pet. 5–7, 17 n.8. The exact year or years of origin
are irrelevant to this mandamus. Moreover, Trevino and Pope’s point is simply that the estate can
only convey (and must only convey) what the decedent owned, which must be based on the
property descriptions in her chain of title. New surveys will not change what title is in the
decedent’s estate. If a beneficiary wants to re-survey her property line, then the beneficiary should
do so after distribution, but the estate has no justifiable reason to pay for these costly surveys. See
M.R. at 78 (Ex. E-6). Trevino and Pope have acted to prevent this waste as is their duty as
executors and right as beneficiaries. Trevino and Pope accordingly object to the characterization
that their position is “absolutely ridiculous.” See Pet. 7. In any event, the trial court has not ruled
on this issue.

Second, Martinez states that Trevino and Pope “sought to waive the statutorily required
accounting.” Pet. 6. Trevino and Pope deny this allegation, and Martinez cites no record or
statutory authority to support it.


                                                 13
trial court’s request. See, e.g., Suppl. M.R. at 20–22, 31. For example, at the trial

court’s request, Rigney verbally agreed with the plan to conduct the surveys first to

see if there was any real disagreement over property descriptions and who should

sign the distribution deeds. See id. at 20–22. Similarly, Rigney also agreed that the

executors should pay the costs of an accountant to review the records of the estate

and that reimbursement by the estate could be addressed later if the records show

any problems. See id. at 31. At the end of the hearing, the trial court thanked the

parties for their settlement efforts and asked, without objection, that an order be

prepared concerning the agreement. See id. at 31–32.

4.        The trial court entered an order in January 2017 expressly based on that

agreement, and a majority of the executors approved the order.

          The trial court entered the January 2017 Order expressly according to the

agreement announced at the November 2016 hearing. M.R. at 113 (Ex. H).3 In

accordance with the co-executors’ majority-rule agreement described above (see


3
    Specifically, the January 2017 Order states:

        On the 17th day of November 2016, there came on before the Court in the above-styled
      and numbered cause, a pretrial hearing on some pending motions, and came the parties by
      and through their attorneys of record, Marcel Notzon, appearing for [Narro, Gutierrez, and
      Guerra], John Rigney for [Martinez], and O.C. Hamilton, Jr. for [Trevino and Pope]. Prior
      to considering any pending motion, the attorneys announced that they had reached a
      settlement on some of the disputes which may dispose of most of the issues in the case
      whereupon the Court proceeded to hear the agreements of counsel, and based on such
      agreements, makes the following order . . . .

M.R. at 113 (Ex. H).


                                                   14
supra § 1), a majority of the six co-executors approved the January 2017 Order “as

to form and substance” through counsel. M.R. at 116 (Ex. H). Martinez did not file

her mandamus petition in Martinez I until late May 2017, which was roughly four

months after this order and more than six months after the underlying agreement.

5.     The trial court denied Co-Executrix Maria Cecilia Martinez’s plea to the

jurisdiction in May 2017 and planned to hear other motions.

       Two months after the January 2017 Order was signed, Martinez filed a plea

to the jurisdiction arguing that the trial court lacked jurisdiction to “tak[e] further

steps in the administration of the Estate” and “should exercise no further

jurisdiction.” M.R. at 120 (Ex. I-1).4 The trial court then signed the May 2017 Order

denying Martinez’s plea to the jurisdiction but has not yet ruled on several other

motions before it. M.R. at 138 (Ex. J).

6.     This Court dismissed Martinez’s first attempt at mandamus for want of

jurisdiction, and the trial court then amended the May 2017 Order.

       In Martinez I, the parties disagreed as to whether the trial court had

“converted” the administration from independent to dependent by stating in the May




4
 The other three executors besides Pope, Trevino, and Martinez had filed a plea to the jurisdiction
before the November 2016 settlement hearing. M.R. at 123 (Ex. I-2). Unlike Martinez’s plea, that
plea attacked specific motions filed by Trevino and Pope. See id. at 123. The trial court has not
ruled on that plea.


                                               15
2017 Order that “the administration of the Estate will be treated as dependent

administration.” See M.R. at 138 (Ex. J). No party had requested such a conversion.

      After Martinez I, Trevino and Pope asked the trial court to clarify whether it

intended to convert the administration from independent to dependent and requested

that the trial court amend the May 2017 Order to remove the “treated as dependent”

language. Suppl. M.R. at 36–37. The trial court granted Trevino and Pope’s request

and signed the January 2018 Order after this Court permitted the trial court to rule

on Trevino and Pope’s motion. Suppl. M.R. at 80 (App. Tab H).

7.    What remains to be done in the probate administration from Trevino and

Pope’s perspective.

      While several motions are pending in the trial court, Trevino and Pope

primarily seek to accomplish the goals listed in this section. In short, Trevino and

Pope want the portion of the estate devised to them to be distributed to them.

Specifically, they want to receive deeds to the real property devised to them using

the proper legal descriptions the decedent received, not using new surveyed

descriptions. Trevino and Pope are not seeking to sign other beneficiaries’ deeds.

They also want their portion of the estate funds (including royalties from oil and gas

interests) to be distributed to them. Before distribution can occur, however, the trial

court must approve the accounting Trevino and Pope filed.




                                          16
                            Summary of the Argument

      This Court should deny mandamus as to both orders challenged by Martinez.

      The trial court based its January 2017 Order on a unanimous agreement of the

parties entered in open court. Moreover, the co-executors agreed that majority vote

controls, and a majority of the co-executors approved the January 2017 Order. No

clear abuse of discretion exists as a result, and none of Martinez’s authorities

overcome the policy favoring settlement agreements. The trial court had jurisdiction

to enter the January 2017 Order because it pertained to the settlement and

distribution of this estate and did not interfere with the independent administration.

Mandamus as to the January 2017 Order is also barred due to Martinez’s failure to

strictly comply with Rule 52 and under the doctrine of laches. See Argument § I.

      The trial court also had discretion to deny Martinez’s plea to the jurisdiction.

The trial court’s January 2018 Order removed the alleged sua sponte “conversion”

of the administration from independent to dependent. Martinez’s claim that the trial

court lacks jurisdiction to take further steps in the administration lacks merit. The

probate court has jurisdiction to determine its authority to rule on pending motions,

and this Court should permit the probate court to do so. See Argument § II.

      This estate has taken too long to be distributed. This Court should quickly

deny mandamus so that this administration can finally be closed.




                                         17
                              Mandamus Standard

      Mandamus will not issue unless: (1) the trial judge has committed a clear

abuse of discretion, and (2) there is no adequate remedy on appeal. In re Olshan

Found. Repair Co., 328 S.W.3d 883, 887–88 (Tex. 2010) (orig. proceeding). A clear

abuse of discretion occurs only when a trial court “reaches a decision so arbitrary

and unreasonable as to amount to a clear and prejudicial error of law.” Walker v.

Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).

      The Texas Supreme Court has held that trial court interference with

independent administration without statutory authority is subject to mandamus.

D’Unger v. De Pena, 931 S.W.2d 533, 535 (Tex. 1996) (orig. proceeding) (per

curiam). That ruling, however, must be read in light of the fact that mandamus is an

extraordinary remedy not available for incidental pre-trial rulings. See Walker, 827

S.W.2d at 842. Increased cost or delay involved in a trial and appeal generally does

not render an appeal an inadequate remedy justifying mandamus review. See id. at

840–42. Denials of pleas to the jurisdiction are generally not subject to mandamus

review because they have an adequate appellate remedy. See e.g., In re Bay Area

Citizens Against Lawsuit Abuse, 982 S.W.2d 371, 375 (Tex. 1998) (orig.

proceeding); Bell Helicopter Textron, Inc. v. Walker, 787 S.W.2d 954, 955 (Tex.

1990) (orig. proceeding) (per curiam); Brown v. Herman, 852 S.W.2d 91, 93 (Tex.

App.—Austin 1993, orig. proceeding) (applying rule in probate court).


                                        18
                                     Argument

I.    Martinez is not entitled to mandamus as to the January 2017 Order.

{Response to Martinez’s §§ [A], [C]}.

      This Court should deny Martinez’s request that the January 2017 Order be set

aside. The trial court did not abuse its discretion by entering an order according to

the executors’ unanimous (and later, majority approved) partial settlement of this

administration, and that order does not constitute interference that would give rise

to mandamus. See infra §§ I.B., C. Additionally, Martinez’s petition fails to strictly

comply with Rule 52 and is barred by laches. See infra §§ I.A., D.

      A.     Martinez failed to strictly comply with Rule 52.

      As in Martinez I, Martinez again erroneously failed to file a transcript of the

hearing held on November 17, 2016, or a statement that no testimony was adduced

at that hearing. See Tex. R. App. P. 52.7(a)(2). The January 2017 Order is expressly

based on a settlement agreement announced and presented at that hearing. M.R. at

113 (Ex. H). Martinez’s only statement concerning a hearing pertains to a later

hearing that resulted in the May 2017 Order. Pet. 8 n.4.

      A relator must strictly comply with Rule 52’s provisions concerning the

appendix and record. In re Hunting, No. 05-15-00200-CV, 2015 Tex. App. LEXIS

1684, at *1–2, 2015 WL 737408 (Tex. App.—Dallas Feb. 20, 2015, orig.

proceeding) (mem. op.). Chief among Rule 52’s requirements is “the critical


                                         19
obligation to provide the reviewing court with a complete and adequate record.” In

re Le, 335 S.W.3d 808, 813 (Tex. App.—Houston [14th Dist.] 2011, orig.

proceeding).     Because Martinez failed to strictly comply with Rule 52’s

requirements, this Court should deny mandamus as to the January 2017 Order. See,

e.g., In re Hunting, 2015 Tex. App. LEXIS 1684, at *1–2. Trevino and Pope have

filed a copy of that transcript for the Court’s convenience, but Martinez’s failure

should nonetheless result in mandamus being denied.

      B.       The trial court had the discretion to enforce the co-executors’

      unanimous (and later, majority approved) agreement.

      To the extent the Court reviews the January 2017 Order, the Court should rule

that the trial court did not clearly abuse its discretion. The trial court had discretion

to enter the January 2017 Order according to the unanimous agreement the co-

executors entered in open court. Additionally, a majority of the co-executors

approved the January 2017 Order through counsel in accordance with the earlier

majority-rule agreement. The order pertained to the distribution and settlement of

the estate and was thus within the court’s jurisdiction.

      The probate court has the power to enforce settlement agreements even in

independent administrations. See, e.g., Dodson v. Seymour, 664 S.W.2d 158, 160–

62 (Tex. App.—San Antonio 1983, no writ) (affirming order made pursuant to Rule

11 agreement entered in unreported telephone conference with judge). The law


                                           20
favors settlement, and that is no less true in the probate context. See Shepherd v.

Ledford, 962 S.W.2d 28, 32 (Tex. 1998) (explaining that a settlement agreement in

probate administration “is a favorite of the law”); Gregory v. Rice, 678 S.W.2d 603,

606–07 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (enforcing

agreement to disregard testator’s intent). Appellate courts have affirmed court

orders to enforce agreements concerning distribution and administration of the estate

among contentious independent co-executors. See, e.g., Crossley v. Staley, 988

S.W.2d 791, 792–97 (Tex. App.—Amarillo 1999, no pet.) (holding court had

jurisdiction to enforce such an agreement). This Court should not make an exception

here, which would allow Martinez to back out of the November 2016 agreement and

to override the majority-approved January 2017 Order.          Such a ruling would

undermine parties’ ability to settle probate disputes.

      The January 2017 Order complied with Rule 11 and the majority-rule

agreement. Rule 11 provides that agreements between attorneys or parties made in

open court and entered of record are enforceable. Tex. R. Civ. P. 11 (App. Tab G).

When an agreement is made in open court and entered of record, it is not necessary

that the parties each sign off on a written agreement or agreed order. See Kanan v.

Plantation Homeowner’s Ass’n, 407 S.W.3d 320, 328 (Tex. App.—Corpus Christi

2013, no pet.). Here, the parties agreed in open court through counsel, and a majority

approved the January 2017 Order.


                                          21
       The jurisdictional statutes governing this proceeding provide authority for the

January 2017 Order. This administration is subject to the former Probate Code’s

jurisdictional statutes (Sections 4, 5, and 5A) as they existed in 2006. 5                      The

Legislature enacted former Section 5A 6 to expand probate jurisdiction. Estate of

Lee, 981 S.W.2d 288, 291 (Tex. App.—Amarillo 1998, pet. denied). While Texas

law had long limited judicial interference with independent administration, the

Legislature later added former Section 5A in part to grant the courts’ new authority

to take actions even in independent administrations. See id. “By [former Section

5A], the Legislature intended to expand probate jurisdiction to matters in which the

controlling issue was the settlement, partition, or distribution of an estate.” Id.

(citing Seay v. Hall, 677 S.W.2d 19, 22 (Tex. 1984), superseded by statute on other

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




5
  The session law that repealed the pertinent 2006 statutes stated, “The changes in law made by
this section apply only to an action filed or a proceeding commenced on or after the effective date
[September 1, 2009] of this Act.” Act of May 31, 2009, 81st Leg., R.S., ch. 1351, §§ 12(i), 15,
2009        Tex.      Gen.         Laws        4273,       4279,     4282,       available       at
http://www.lrl.texas.gov/scanned/sessionLaws/81-0/SB_408_CH_1351.pdf (App. Tab A). The
estate proceeding here was commenced in 2006. See M.R. at 26 (Ex. B).

The result here is the same if the current jurisdictional statutes apply, too. See infra n.9.
6
  Act of May 17, 1979, 66th Leg., R.S., ch. 713, § 3, sec. 5A, 1979 Tex. Gen. Laws 1740, 1741,
repealed by Act of May 31, 2009, 81st Leg., R.S., ch. 1351, § 12(h), 2009 Tex. Gen. Laws 4273,
4279. The original act contained the language discussed in this response and is available at:
http://www.lrl.texas.gov/scanned/sessionLaws/66-0/HB_329_CH_713.pdf. Section 5A was also
amended several times before 2006, and the full list of amending session laws through 2006 is
included with the copy of the 2006 statute in the appendix. App. Tab F.


                                                 22
2995, 2996 (codified at Tex. Prob. Code § 5A (repealed)), as recognized in In re

Graham, 971 S.W.2d 56, 59–60 (Tex. 1998) (orig. proceeding)). 7

       Specifically, under former Probate Code Section 5(f),8 the court exercising

original probate jurisdiction—here, the Starr County Court at Law—has “the power

to hear all matters incident to an estate.” App. Tab E. As applicable to county courts

at law, former Section 5A(a) defines “incident to an estate” to cover several items

including “generally all matters, relating to the settlement, partition, and distribution

of estates of deceased persons.” App. Tab F.

       For example, under former Section 5A, a court of appeals upheld a county

court at law’s order determining the dollar amount each beneficiary of an estate was

entitled to receive as a distribution. See Estate of Lee, 981 S.W.2d at 289–92. The

independent executor had requested this order after a beneficiary refused to account

for estate property. Id. at 290. The court of appeals affirmed the order. See id. at

289–92. As the court of appeals explained, the order did not interfere with the




7
   The session law that superseded Seay in part on other grounds is available at
http://www.lrl.texas.gov/scanned/sessionLaws/69-0/HB_479_CH_875.pdf.
8
 Texas Probate Code, 54th Leg., R.S., ch. 55, § 1, sec. 5, 1955 Tex. Gen. Laws 88, 91, repealed
by Act of May 31, 2009, 81st Leg., R.S., ch. 1351, § 12(h), 2009 Tex. Gen. Laws 4273, 4279.

The quoted language was added by later amendments. Section 5 was amended several times before
2006, and the full list of amending session laws through 2006 is included with the copy of the 2006
statute in the appendix. App. Tab E.


                                               23
independent administration, and the order pertained to settlement and distribution of

the estate, which is expressly permitted by former Section 5A. See id. at 291–92.

        The present case’s January 2017 Order also pertains to settlement and

distribution of the estate. The order, which reflects a partial settlement among the

co-executors, also does not interfere with the independent administration. As a

result, the Court should hold that the January 2017 Order was authorized by statute.9

        Martinez’s cited cases do not involve court approval of a settlement. Instead,

her cases analyze situations where a single independent executor sought court

approval of a contested action. See, e.g., Marshall v. Hobert Estate, 315 S.W.2d

604, 605–07 (Tex. Civ. App.—Eastland 1958, writ ref’d) (per curiam) (involving

independent executor’s attempt to enter lease over beneficiary’s objection). The

Marshall opinion cited by Martinez also pre-dates the enactment of Section 5A,

which expanded probate jurisdiction as described above. She does not cite cases

involving disputes among independent co-executors or, more specifically, cases

addressing a majority-vote agreement like the one in this administration. Her cases

are thus distinguishable, and this Court should reject her arguments based on them.




9
  The same result would hold under the current jurisdictional statutes, which provide authority for
jurisdiction over “any other matter related to the settlement, partition, or distribution of the estate.”
See Tex. Est. Code Ann. §§ 31.001(6), 32.001(a) (LexisNexis, Lexis Advance through 2017 r.s. &
1st c.s.).


                                                  24
      Moreover, for the majority-rule agreement to work, executors must be able to

agree and must be able to rely on the court to construe and enforce those agreements.

This particular administration needs the court to have the ability to enforce

agreements.

      The Estates Code does not directly address what the options are for resolving

disagreements among multiple independent executors. Its sole apparent guidance—

Section 307.002’s statement that each executor may generally act on behalf of the

estate without joinder of the other executors—largely does not apply here due to the

majority-rule agreement. To the extent the parties overrode the Estates Code in this

regard, the probate court be able to at least enforce agreements of the executors.

      Curiously, Martinez (incorrectly) characterizes this mandamus record as one

where a minority of co-executors convinced the trial court to prevent a majority from

managing the estate. See supra Statement of Facts § 4. But her mandamus petition

effectively asks the Court to rule that the trial court has no jurisdiction to sign an

order approved by a majority of the co-executors. If the trial court could not sign

the January 2017 Order, the trial court effectively cannot enforce the majority-rule

agreement either.

      Additionally, in Martinez I, Martinez never argued that a unanimous

agreement would not be enforceable and never offered a response to Trevino and

Pope’s point that a majority approved the January 2017 Order. She only argued that


                                         25
her former counsel did not agree to the terms presented in the November 2016

hearing. Trevino and Pope disagree with that reading of the transcript.

      Parties generally cannot seek appellate review of an agreed trial court order.

See, e.g., In re Brent W. Coon, P.C., No. 09-09-00263-CV, 2009 Tex. App. LEXIS

7434, at *3–4, 2009 WL 3030355 (Tex. App.—Beaumont Sep. 24, 2009, orig.

proceeding) (mem. op.); see also In re BP Prods. N. Am., Inc., 244 S.W.3d 840,

845–46 (Tex. 2008) (orig. proceeding) (emphasizing courts should be particularly

reluctant to set aside party agreements). This Court should not make an exception

here and should deny mandamus as to the January 2017 Order.

      C.    Martinez has an adequate appellate remedy.

      Because the January 2017 Order is based on the executors’ agreement, it does

not raise the problem of interfering with independent administration. See supra

§ I.B. As a result, this case does not fall within the Texas Supreme Court’s ruling

that unauthorized interference with an independent administration is subject to

mandamus. See D’Unger v. De Pena, 931 S.W.2d 533, 535 (Tex. 1996) (orig.

proceeding) (per curiam); see also Estate of Lee, 981 S.W.2d 288, 291–92 (Tex.

App.—Amarillo 1998, pet. denied) (finding order described above not to be

interference). The January 2017 Order is an incidental pretrial ruling which is not

subject to mandamus review. See Walker v. Packer, 827 S.W.2d 833, 842 (Tex.

1992) (orig. proceeding); Brown v. Herman, 852 S.W.2d 91, 93 (Tex. App.—Austin


                                        26
1993, orig. proceeding) (refusing mandamus as to probate court’s determination that

it had jurisdiction). This Court should deny mandamus on this prong as well.

      D.    Laches bars Martinez’s petition as to this order.

      Additionally, Martinez waited too long to complain about the January 2017

Order by mandamus. Her mandamus petition in Martinez I came about four months

after the order and more than six months after the open court agreement.

      Writs of mandamus are largely controlled by equitable principles. In re Int’l

Profit Assocs., 274 S.W.3d 672, 676 (Tex. 2009) (orig. proceeding) (per curiam).

As a result, the doctrine of laches can bar mandamus. Callahan v. Giles, 155 S.W.2d

793, 795 (Tex. 1941) (orig. proceeding). “[E]quity aids the diligent and not those

who slumber on their rights.” Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367

(Tex. 1993) (orig. proceeding).    The party asserting laches must show (1) an

unreasonable delay by the relator and (2) good faith change in position by another

to his or her detriment because of the delay. In re Laibe Corp., 307 S.W.3d 314, 318

(Tex. 2010) (orig. proceeding) (per curiam). Both elements are established here.

      Delays like Martinez’s are regularly held to be unreasonable. “A delay of

only a few months can constitute laches.” In re Jindal Saw Ltd., 264 S.W.3d 755,

760 (Tex. App.—Houston [1st Dist.] 2008, orig. proceeding) (citing cases involving

four month delays), mand. granted on other grounds, 289 S.W.3d 827, 828 (Tex.

2009) (orig. proceeding) (per curiam). Examples abound. See, e.g., Rivercenter


                                        27
Assocs., 858 S.W.2d at 367–68 (waiting over four months after jury demand before

asserting jury waiver rights in contract). 10

       Martinez thus unreasonably delayed her mandamus by waiting four months.

As an excuse, she suggests in a footnote that it was unclear to her what the trial court

was doing. See Pet. 16 n.7. She does not, however, indicate that the January 2017

Order was somehow ambiguous or opaque. To the contrary, as relator she must

show that the January 2017 Order constitutes a clear abuse of discretion. See supra

Mandamus Standard. The trial court entered an order based on the agreement

Martinez’s attorney entered on her behalf. This Court should reject her excuse.

       As to the second element, Trevino and Pope changed their position in good

faith to their detriment because of Martinez’s delay. The order required Trevino and

Pope to prepare deeds and send them to the other executors’ counsel, which they did.

See M.R. at 114 ¶ 3 (Ex. H); M.R. at 57 ¶ 1 (Ex. E-1). Trevino and Pope complied

with the order in other ways as well and sought sanctions to enforce the order. See

id. at 90–93 (Ex. F-1); App. Tab. B (Pope affid.). 11 Trevino and Pope also had

10
  See also, e.g., In re Salinas, No. 13-09-00599-CV, 2010 Tex. App. LEXIS 395, at *4–5, 2010
WL 196887 (Tex. App.—Corpus Christi Jan. 20, 2010, orig. proceeding) (mem. op.) (per curiam)
(between three and four months); Int’l Awards, Inc. v. Medina, 900 S.W.2d 934, 935–36 (Tex.
App.—Amarillo 1995, orig. proceeding) (just over four months); Furr’s Supermarkets, Inc. v.
Mulanax, 897 S.W.2d 442, 443 (Tex. App.—El Paso 1995, orig. proceeding) (four months after
oral ruling and one month after written order).
11
  While the Pope affidavit was not before the trial court, parties can submit affidavits to the court
of appeals in an original proceeding to establish elements of laches, which is a doctrine necessarily
asserted for the first time in an appellate court when challenging a mandamus petition. See, e.g.,
In re Melcher, No. 14-16-00130-CV, 2017 Tex. App. LEXIS 2490, at *7–8, 2017 WL 1103549

                                                28
agreed to forego their claim for compensation in the administration as part of

agreeing to the order. M.R. at 134–36 (Ex. I-4). That claim is more than $25,000.

Id. 12    Moreover, the long-awaited distribution of the estate has now been

unnecessarily delayed by Martinez’s late attempt to seek mandamus.

         Finally, this Court should reject Martinez’s argument that laches does not

apply because the order is allegedly void. See Pet. 16 n.7. The trial court had the

ability to enter the January 2017 Order. See supra § I.B. Any mandamus complaint

involving that enforcement would nonetheless be barred by laches.

         Because Trevino and Pope have established both elements, laches bars

mandamus as to the January 2017 Order.

II.      Martinez is not entitled to mandamus as to the May 2017 Order.

{Response to Martinez’s §§ [B], [C]}

         The Court should deny mandamus as to Martinez’s plea to the jurisdiction.

There is no longer an order arguably “converting” the estate administration from

independent to dependent. See infra § II.A. Additionally, the trial court had

discretion to deny her plea to the jurisdiction because her plea sought broad relief




(Tex. App.—Houston [14th Dist.] Mar. 23, 2017, orig. proceeding) (mem. op.) (allowing relator
to show lack of unreasonable delay through an affidavit attached to a reply brief).
12
  Trevino and Pope have since rescinded their assent to the November 2016 hearing agreement
due to lack of compliance with the January 2017 Order. See M.R. at 135–36 ¶ 4 (I-4).


                                             29
unsupported by law. See infra § II.B. Also, Martinez has an adequate appellate

remedy. See infra § II.C.

      A.     The trial court has fixed the “conversion” issue by signing the

      January 2018 Order.

      The “conversion” controversy related to the May 2017 Order’s language is

now gone as a result of the January 2018 Order. The trial court explained that it

believed the May 2017 Order’s “treated as dependent” language was erroneously

included. 1/9/18 R.R. at 5. All that remains at issue is whether the Court should

issue mandamus granting Martinez’s plea to the jurisdiction.

      B.     The trial court had discretion to deny Martinez’s plea to the

      jurisdiction.

      The Court should deny mandamus as to Martinez’s plea to the jurisdiction.

The trial court had discretion to reject Martinez’s request that it “exercise no further

jurisdiction” in this case. See M.R. at 120 (Ex. I-1). This Court should permit the

trial court to determine for itself in the first instance whether it has the authority to

grant the relief requested in any pending motions. And when the trial court rules on

those motions, the parties can seek appellate or mandamus relief if it is available.

This Court should not enter an order preemptively barring the trial court from

considering the motions first. The probate court has the jurisdiction to determine its

own authority. See Brown v. Herman, 852 S.W.2d 91, 93 (Tex. App.—Austin 1993,


                                           30
orig. proceeding). Until the probate court makes those rulings, mandamus in this

Court is premature and unripe. See In re Kuster, 363 S.W.3d 287, 290 (Tex. App.—

Amarillo 2012, orig. proceeding [habeas denied]) (“[T]o the extent that her petition

seeks mandamus relief based upon events that have not yet occurred and remain

merely hypothetical, we conclude that we are without jurisdiction to render advisory

opinions on factual situations that may or may not arise in the future.”).

      Moreover, Trevino and Pope’s pending motions have cited to valid statutory

bases for the trial court’s action in an independent administration. The trial court

has authority to allow less than all of the executors to sign distribution deeds (Estates

Code § 307.002(b)), to remove executors or require them to give bond (Estates Code

§§ 404.002, .003, .0035), to issue sanctions, and to force a distribution after an

accounting (Estates Code § 405.001). See also Suppl. M.R. at 7–9 (explaining

statutory bases for motions); M.R. at 130 ¶¶ 2–3 (Ex. I-3) (incorporating earlier

explanation by reference in response to Martinez’s plea to the jurisdiction).

      C.     Mandamus is not the proper remedy for this ruling.

      This Court should also deny mandamus as to the January 2018 Order because

denials of pleas to the jurisdiction are generally not subject to mandamus review.

See supra Mandamus Standard. This is true in the probate context as well. See

Brown, 852 S.W.2d at 93.




                                           31
      This is especially true in this case, however, where Martinez seeks to bar the

trial court from ruling on the motions before it and future proceedings. The trial

court might rule in Martinez’s favor either on the merits or by deciding it lacks

authority to rule on the motions at all. Martinez presents no basis for this Court to

conclude that the mere hearing of these pending motions will deprive her of rights.

This is not a case where “the very act of proceeding to trial [(or in the present case,

a hearing)]—regardless of the outcome—would defeat the substantive right

involved.” In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 465 (Tex. 2008) (orig.

proceeding). Even if this Court accepts the speculative premise (and it should not)

that the trial court is going to issue rulings adverse to Martinez, Martinez has not

explained why she lacks adequate appellate remedies from these hypothetical rulings

or why she could not bring mandamus, if necessary and available, at that time when

those issues are ripe.




                                          32
                                        Prayer

      Trevino and Pope request that this Court deny Martinez’s Petition for Writ of

Mandamus. Trevino and Pope request such other and further relief at law and in

equity to which they may be entitled.

                                        Respectfully submitted,

                                        ATLAS, HALL & RODRIGUEZ, LLP
                                        818 Pecan/P.O. Box 3725
                                        McAllen, Texas 78501/78502
                                        (956) 682-5501 (phone)
                                        (956) 686-6109 (facsimile)


                                        By: /s/ J. Joseph Vale
                                              J. Joseph Vale
                                              State Bar No. 24084003
                                              jvale@atlashall.com
                                              O.C. Hamilton, Jr.
                                              State Bar No. 08847000
                                              och@atlashall.com

                                        Attorneys for Maria Iris G. Trevino and
                                        Maria Del Rosario G. Pope




                                         33
                     Certificate of Rule 9.4(i) Compliance

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that

the number of words in this Response to Petition for Writ of Mandamus, excluding

those matters listed in Rule 9.4(i)(1), is 6,215 words per the word processing

program used for its preparation (Microsoft Word).



                                      /s/ J. Joseph Vale
                                              J. Joseph Vale




                                        34
                            Certification of Appendix

STATE OF TEXAS                  §
                                §
COUNTY OF HIDALGO               §

      Pursuant to Texas Civil Practice & Remedies Code § 132.001 , on this day
personally appeared J. Joseph Vale and declares under penalty of perjury that the
following is true and correct:

      1.     My name is J. Joseph Vale. I am one of the attorneys for Maria Iris
             Trevino and Maria Del Rosario G. Pope, real parties in interest the
             above-referenced cause. I am above the age of eighteen, have never
             been convicted of a felony or a crime of moral turpitude, and am
             competent to make this declaration. The facts stated herein are within
             my personal knowledge and are true and correct.

      2.    The order contained in Tab H of the Appendices to the Response to
            Petition for Writ of Mandamus is a true and correct copy of the original
            appearing in the trial court' s record.

      I declare under penalty of perjury that the foregoing is true and correct.

      Executed on: January 22, 2018.



                                       Ju rat

      My name is J. Joseph Vale, my date of birth is December 19, 1986, and my
address is 818 W. Pecan Blvd., McAllen, Texas 78501, United States of America. I
declare under penalty of perjury that the foregoing is true and correct. Executed in
Hidalgo County, State of Texas, on the 22nd day of Janua         18.




                                         35
                     Certificate of Rule 52.3(j) Compliance

      This certifies that the undersigned has reviewed this Response and concluded

that every factual statement in it is supported by competent evidence included in the

appendix or record, as required by Appellate Rule 52.3(j). This certificate is signed

subject to Trevino and Pope’s objection to the missing transcript noted above. See

supra Argument § I.A.



                                                    /s/ J. Joseph Vale
                                                      J. Joseph Vale




                                         36
                                Certificate of Service

      I certify that the foregoing document was electronically filed with the Clerk

of the Court using the electronic case filing system of the Court. I also certify that a

true and correct copy of the foregoing was served on the following counsel of record

on January 22, 2018 as follows:

  Recipient:                                   Attorney for:          Served by:
  Keith C. Livesay                             Executrix/relator      Electronically if
  (rgvappellatelaw@yandex.com)                                        available, or by
  LIVESAY LAW OFFICE                           Maria Cecilia G.       email
  517 West Nolana                              Martinez
  McAllen, Texas 78504
  Marcel C. Notzon, III                        Executors/real         Electronically if
  (mcn@notzonlawfirm.com)                      parties in interest    available, or by
  THE NOTZON LAW FIRM                                                 email
  Northtown Professional Plaza                 Maria Celeste G.
  6999 McPherson, Suite 325                    Narro, Ignacio
  Laredo, Texas 78041                          Gutierrez, and Maria
                                               Minerva G. Guerra
  Hon. Romero Molina                           Respondent           Certified mail,
  Starr County Courthouse                                           return receipt
  401 N. Britton Avenue                                             requested
  Rio Grande City, Texas 78582


                                        /s/ J. Joseph Vale
                                                J. Joseph Vale




                                          37
                           Appendices

Tab   Document

A     Act of May 31, 2009 session law that repealed former Probate
      Code’s jurisdictional statutes

B     Affidavit of Maria del Rosario G. Pope

C     Tex. Est. Code Ann. § 307.002

D     Tex. Prob. Code Ann. § 240 (2006 version) (repealed 2009)

E     Tex. Prob. Code Ann. § 5 (2006 version) (repealed 2009)

 F    Tex. Prob. Code Ann. § 5A (2006 version) (repealed 2009)

G     Tex. R. Civ. P. 11

H     Amended Order Denying Plea to the Jurisdiction (the January 2018
      Order)




                               38
    TAB A

OF THE APPENDIX
81st LEGISLATURE-REGULAR SESSION                                                    Ch. 1351, § 5

                                          CHAPTER 1351

                                             S.B. No. 408
                                                 AN ACT
relating to jurisdiction, venue, and appeals in certain matters, including the jurisdiction of and appeals
from certain courts and administrative decisions and the appointment of counsel in certain appeals.
   Be it enacted by the Legislature of the State of Texas:
   SECTION 1. Section 51.012, Civil Practice and Remedies Code, is amended to read as
follows:
   Sec. 51.012. APPEAL OR WRIT OF ERROR TO COURT OF APPEALS. In a civil case
in which the judgment or amount in controversy exceeds $250 [$"0], exclusive of interest and
costs, a person may take an appeal or writ of error to the court of appeals from a final
judgment of the district or county court.
   SECTION 2. (a) Section 82.003, Civil Practice and Remedies Code, is amended by adding
Subsection (c) to read as follows:
   (c) If after service on a nonresident manufacturer through the secretary of state in the
manner prescribed by Subchapter C, Chapter 17, the manufacturer fails to answer or
otherwise make an appearance in the time required by law, it is conclusively presumed for
the purposes of Subsection (a)(7) (B) that the manufacturer is not subject to the jurisdiction
of the court unless the seller is able to secure personaljurisdictionover the manufacturer in
the action.
   (b) The change in law made by this section applies to an action filed on or after the
effective date of this Act or pending on the effective date of this Act.
   SECTION 3. Subsection (a), Section 22.220, Government Code, is amended to read as
follows:
   (a) Each court of appeals has appellate jurisdiction of all civil cases within its district of
which the district courts or county courts have jurisdiction when the amount in controversy or
the judgment rendered exceeds $250 [$10], exclusive of interest and costs.
   SECTION 4. Subchapter A, Chapter 25, Government Code, is amended by adding Section
25.0020 to read as follows:
   Sec. 25.0020. APPOINTMENT OF COUNSEL IN CERTAIN APPEALS. (a) On a
written applicationof any party to an eviction suit, the county court or county court at law
in which an appeal of the suit is filed may appoint any qualified attorney who is willing to
provide pro bono services in the matter or counsel from a list provided by a pro bono legal
services program of counsel willing to be appointed to handle appeals under this section to
attend to the cause of a party who:
      (1) was in possession of the residence at the time the eviction suit was filed in the
  justice court; and
      (2) has perfected the appeal on a pauper's affidavit approved in accordance with Rule
    749a, Texas Rules of Civil Procedure.
   (b) The appointed counsel shall represent the individual in the proceedings of the suit in
the county court or county court at law. At the conclusion of those proceedings, the
appointment terminates.
   (c) The court may terminate representationappointed under this sectionfor cause.
   (d) Appointed counsel may not receive attorney's fees unless the recovery of attorney'sfees
is provided for by contract, statute, common law, court rules, or other regulations. The
county is not responsiblefor payment of attorney'sfees to appointed counsel.
   (e) The court shall provide for a method of service of written notice on the parties to an
eviction suit of the right to request an appointment of counsel on perfection of appeal on
approval of a pauper's affidavit.
   SECTION 5. Subchapter A, Chapter 26, Government Code, is amended by adding Section
26.010 to read as follows:
                                               4273
Ch. 1351, § 5                                 81st LEGISLATURE-REGULAR SESSION

  Sec. 26.010. APPOINTMENT OF COUNSEL IN CERTAIN APPEALS. (a) On a
written application of any party to an eviction suit, the county court or county court at law
in which an appeal of the suit is filed may appoint any qualified attorney who is willing to
provide pro bono services in the matter or counsel from a list provided by a pro bono legal
services program of counsel willing to be appointed to handle appeals under this section to
attend to the cause of a party who:
      (1) was in possession of the residence at the time the eviction suit was filed in the
  justice court; and
      (2) has perfected the appeal on a pauper's affidavit approved in accordance with Rule
   749a, Texas Rules of Civil Procedure.
   (b) The appointed counsel shall represent the individual in the proceedings of the suit in
the county court or county court at law. At the conclusion of those proceedings, the
appointment terminates.
   (c) The court may terminate representationappointed under this section for cause.
   (d) Appointed counsel may not receive attorney'sfees unless the recovery of attorney'sfees
is provided for by contract, statute, common law, court rules, or other regulations. The
county is not responsiblefor payment of attorney'sfees to appointed counsel.
   (e) The court shall provide for a method of service of written notice on the parties to an
eviction suit of the right to request an appointment of counsel on perfection of appeal on
approval of a pauper's affidavit.
   SECTION 6. Subsection (c), Section 26.042, Government Code, is amended to read as
follows:
   (c) If under Subchapter E a county court has original concurrent jurisdiction with the
justice courts in all civil matters in which the justice courts have jurisdiction, an appeal or
writ of error may not be taken to the court of appeals from a final judgment of the county
court in a civil case in which:
      (1) the county court has appellate or original concurrent jurisdiction with the justice
   courts; and
      (2) the judgment or amount in controversy does not exceed $250 [$-10], exclusive of
  interest and costs.
   SECTION 7. Subsection (b), Section 28.052, Government Code, is amended to read as
follows:
   (b) Except to the extent of any conflict with this subchapter, appeal [Appeai] is in the
manner provided by law for appeals [appeal] from justice courts [court to county cour].
   SECTION 8. The heading to Section 28.053, Government Code, is amended to read as
follows:
   Sec. 28.053. DE NOVO TRIAL [HE ARING] ON APPEAL.
   SECTION 9. Subsections (b) and (d), Section 28.053, Government Code, are amended to
read as follows:
   (b) Trial on appeal to the county court or county court at law is de novo. No further
pleadings are required [and the prced-re is the same as in small @!aims court].
   (d) A person may appeal the final judgment [Judgqet] of the county court or county
court at law on the appeal to the court of appeals [is-TfpAl].
   SECTION 10. (a) Subsections (a) and (e), Section 531.019, Government Code, as added by
Chapter 1161 (H.B. 75), Acts of the 80th Legislature, Regular Session, 2007, are amended to
read as follows:
   (a) In this section, "public assistance benefits" means benefits provided under a public
assistance program under Chapter 31, 3, or 33, Human Resources Code.
  (e) For purposes of Section 2001.171, an applicant for or recipient of public assistance
benefits has exhausted all available administrative remedies and a decision, including a
decision under Section 31.034 or 32.035, Human Resources Code, is final and appealable on
the date that, after a hearing:
                                              4274
81st LEGISLATURE-REGULAR SESSION                                        Ch. 1351, § 12(b)

      (1) the hearing officer for the commission or a health and human services agency reaches
   a final decision related to the benefits; and
      (2) the appropriate attorney completes an administrative review of the decision and
  notifies the applicant or recipient in writing of the results of that review.
   (b) The changes in law made by this section apply only to an appeal of a final decision by
the Health and Human Services Commission related to financial assistance benefits under
Chapter 31, Human Resources Code, that is rendered on or after the effective date of this
Act. A final decision rendered by the commission before the effective date of this Act is
governed by the law in effect on the date the decision was rendered, and the former law is
continued in effect for that purpose.
   SECTION 11. (a) Subsection (a), Section 821.025, Health and Safety Code, is amended to
read as follows:
   (a) An owner divested of ownership of an animal under Section 821.023 [ordered Sold at
public auction as proAvdd in this subchapter] may appeal the order to a county court or
county court at law in the county in which the justice or municipal court is located. As a
condition of perfecting an appeal, not later than the loth calendarday after the date the order
is issued, the owner must file a notice of appeal and an appeal bond in an amount determined
by the [justice or municipal] courtfrom which the appeal is taken to be adequate to cover the
estimated expenses incurred in housing and caring for the impounded animal during the
appeal process. Not later than the fifth calendarday after the date the notice of appeal and
appeal bond is filed, the court from which the appeal is taken shall deliver a copy of the
court's transcript to the county court or county court at law to which the appeal is made.
Not later than the loth calendar day after the date the county court or county court at law,
as appropriate,receives the transcript,the court shall dispose of the appeal. The decision of
the county court or county court at law under this section is final and may not be further
appealed. [A4 o erm not        .ay appeal an order:
      [(1) to give the animal4 to a4nonprofit animal sholter, pound, or society for the protection
   of an4imals; orP
      [(2) to humanely destroy the"animal.]
   (b) Subsection (a), Section 821.025, Health and Safety Code, as amended by this section,
applies only to an appeal of a court order issued on or after the effective date of this Act. An
appeal of a court order issued before the effective date of this Act is covered by the law in
effect when the appeal was issued, and the former law is continued in effect for that purpose.
   SECTION 12. (a) Subsection (bb), Section 3, Texas Probate Code, is amended to read as
follows:
   (bb) "Probate proceeding" is synonymous with the terms "Probate matter," ["Prbte
proceedings ,' ] "Proceeding in probate," and "Proceedings for probate." The term means a
matter or proceeding related to the estate of a decedent [are synon-ym u] and includes:
      (1) the probate of a will, with or without administrationof the estate;
      (2) the issuance of letters testamentary and of administration;
      (3) an heirship determination or small estate affidavit, community property adminis-
  tration, and homestead and family allowances;
      (4) an application,petition, motion, or action regarding the probate of a will or an
  estate administration,including a claim for money owed by the decedent;
      (5) a claim arisingfrom an estate administrationand any action brought on the claim;
      (6) the settling of a personal representative's account of an estate and any other matter
  related to the settlement, partition,or distributionof an estate; and
      (7) a will construction suit [include A matter or proceeding relating to the cstate
  deeedenit].
  (b) Chapter I, Texas Probate Code, is amended by adding Sections 4A, 4B, 4C, 4D, 4E, 4F,
4G, and 4H to read as follows:
  Sec. 4A GENERAL PROBATE COURT JURISDICTION; APPEALS. (a) All probate
proceedings must be filed and heard in a court exercising originalprobatejurisdiction. The
                                                4275
Ch. 1351, § 12(b)                            81st LEGISLATURE-REGULAR SESSION

court exercising original probate jurisdiction also has jurisdiction of all matters related to
the probate proceeding as specified in Section 4B of this code for that type of court.
   (b) A probate court may exercise pendent and ancillary jurisdiction as necessary to
promote judicial efficiency and economy.
   (c) A final order issued by a probate court is appealable to the court of appeals.
  Sec. 4B. MATTERS RELATED TO PROBATE PROCEEDING. (a) For purposes of
this code, in a county in which there is no statutory probate court or county court at law
exercising original probate jurisdiction, a matter related to a probate proceeding includes:
      (1) an action against a personal representative or former personal representative
  arising out of the representative'sperformance of the duties of a personal representative;
      (2) an action against a surety of a personal representative orformer personal represen-
  tative;
      (3) a claim brought by a personal representative on behalf of an estate;
      (4) an action brought against a personal representative in the representative'scapacity
  as personal representative;
      (5) an action for trial of title to real property that is estate property, including the
   enforcement of a lien againstthe property; and
      (6) an actionfor trial of the right of property that is estate property.
   (b) Forpurposes of this code, in a county in which there is no statutory probate court, but
in which there is a county court at law exercising original probate jurisdiction, a matter
related to a probate proceeding includes:
      (1) all matters and actions described in Subsection (a) of this section;
      (2) the interpretationand administrationof a testamentary trust if the will creating the
   trust has been admitted to probate in the court; and
      (3) the interpretationand administrationof an inter vivos trust created by a decedent
  whose will has been admitted to probate in the court.
   (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) of this section; 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'scapacity as personal representa-
  tive.
  Sec. 4C. ORIGINAL JURISDICTION FOR PROBATE PROCEEDINGS. (a) In a
county in which there is no statutory probate court or county court at law exercising
original probatejurisdiction, the county court has originaljurisdiction of probate proceed-
ings.
   (b) In a county in which there is no statutory probate court, but in which there is a county
court at law exercising original probate jurisdiction, the county court at law exercising
original probate jurisdiction and the county court have concurrent original jurisdiction of
probate proceedings, unless otherwise provided by law. The judge of a county court may
hearprobate proceedings while sittingfor the judge of any other county court.
   (c) In a county in which there is a statutory probate court, the statutory probate court has
originaljurisdictionof probate proceedings.
  Sec. 4D. JURISDICTION OF CONTESTED PROBATE PROCEEDING IN COUNTY
WITH NO STATUTORY PROBATE COURT OR STATUTORY COUNTY COURT. (a) In
a county in which there is no statutory probate court or county court at law exercising
originalprobate jurisdiction,when a matter in a probate proceeding is contested, the judge
of the county court may, on the judge's own motion, or shal4 on the motion of any party to
the proceeding, according to the motion:
     (1) request the assignment of a statutory probate court judge to hear the contested
  matter, as provided by Section 25.0022, Government Code; or
                                           4276
81st LEGISLATURE-REGULAR SESSION                                        Ch. 1351, § 12(b)

       (2) transferthe contested matter to the district court, which may then hear the contested
   matter as if originallyfiled in the district court.
   (b) If a party to a probate proceeding files a motion for the assignment of a statutory
probate court judge to hear a contested matter in the proceeding before the judge of the
county court transfers the contested matter to a district court under this section, the county
judge shall grant the motion for the assignment of a statutory probate court judge and may
 not transfer the matter to the district court unless the party withdraws the motion.
   (c) A party to a probate proceeding may file a motion for the assignment of a statutory
probate court judge under this section before a matter in the proceeding becomes contested,
and the motion is given effect as a motion for assignment of a statutory probate court judge
under Subsection (a) of this section if the matter later becomes contested.
   (d) Notwithstanding any other law, a transfer of a contested matter in a probate
proceeding to a district court under any authority other than the authority provided by this
section:
       (1) is disregardedfor purposes of this section; and
       (2) does not defeat the right of a party to the proceeding to have the matter assigned to a
   statutory probate court judge in accordance with this section.
    (e) A statutory probate court judge assigned to a contested matter under this section has
 the jurisdiction and authority granted to a statutory probate court by this code. On
 resolution of a contested matter for which a statutory probate court judge is assigned under
 this section, including any appeal of the matter, the statutory probate court judge shall
 return the matter to the county courtfor further proceedings not inconsistent with the orders
 of the statutory probate court or court of appeals, as applicable.
    (0 A district court to which a contested matter is transferred under this section has the
jurisdiction and authority granted to a statutory probate court by this code. On resolution
 of a contested matter transferred to the district court under this section, including any
 appeal of the matter, the district court shall return the matter to the county courtfor further
proceedings not inconsistent with the orders of the district court or court of appeals, as
 applicable.
    (g) The county court shall continue to exercise jurisdiction over the management of the
 estate, other than a contested matter, until final disposition of the contested matter is made
 in accordance with this section. After a contested matter is transferred to a district court,
 any matter related to the probate proceeding may be brought in the district court. The
 district court in which a matter related to the probate proceeding is filed may, on its own
motion or on the motion of any party, find that the matter is not a contested matter and
 transfer the matter to the county court with jurisdiction of the management of the estate.
    (h) If a contested matter in a probate proceeding is transferredto a district court under
 this section, the district court has jurisdictionof any contested matter in the proceeding that
 is subsequently filed, and the county court shall transfer those contested matters to the
district court. If a statutory probate court judge is assigned under this section to hear a
contested matter in a probate proceeding, the statutory probate court judge shall be assigned
to hear any contested matter in the proceeding that is subsequentlyfiled.
   (i) The clerk of a district court to which a contested matter in a probate proceeding is
transferred under this section may perform in relation to the contested matter any function
a county clerk may perform with respect to that type of matter.
   Sec. 4E. JURISDICTION OF CONTESTED PROBATE PROCEEDING IN COUNTY
WITH NO STATUTORY PROBATE COURT. (a) In a county in which there is no
statutory probate court, but in which there is a county court at law exercising original
probate jurisdiction, when a matter in a probate proceeding is contested, the judge of the
county court may, on the judge's own motion, or shal4 on the motion of any party to the
proceeding, transfer the contested matter to the county court at law. In addition, the judge
of the county court, on the judge's own motion or on the motion of a party to the proceeding,
may transferthe entire proceeding to the county court at law.
   (b) A county court at law to which a proceeding is transferred under this section may
hear the proceeding as if originally filed in that court. If only a contested matter in the
                                                 4277
Ch. 1351, § 12(b)                             81st LEGISLATURE-REGULAR SESSION

proceeding is transferred, on the resolution of the matter, the matter shall be returned to the
county court for further proceedings not inconsistent with the orders of the county court at
law.
    Sec. 4F. EXCLUSIVE JURISDICTION OF PROBATE PROCEEDING IN COUNTY
WITH STATUTORY PROBATE COURT. (a) In a county in which there is a statutory
probate court, the statutory probate court has exclusive jurisdiction of all probate proceed-
ings, regardless of whether contested or uncontested. A cause of action related to the probate
proceeding must be brought in a statutory probate court unless the jurisdiction of the
statutory probate court is concurrent with the jurisdictionof a district court as provided by
Section 4H of this code or with the jurisdictionof any other court.
    (b) This section shall be construed in conjunction and in harmony with Section 145 of this
code and all other sections of this code relating to independent executors, but may not be
construed to expand the court's control over an independent executor,
    Sec. 4G. JURISDICTION OF STATUTORY PROBATE COURT WITH RESPECT TO
TRUSTS AND POWERS OF ATTORNEY In a county in which there is a statutory
probate court, the statutory probate court has jurisdictionof-
       (1) an action by or against a trustee;
       (2) an action involving an inter vivos trust, testamentary trust, or charitable trust;
       (3) an action against an agent orformer agent under a power of attorney arisingout of
    the agent's performance of the duties of an agent; and
       (4) an action to determine the validity of a power of attorney or to determine an agent's
    rights, powers, or duties under a power of attorney.
    Sec. 4H. CONCURRENT JURISDICTION WITH DISTRICT COURT. A statutory
probate court has concurrentjurisdictionwith the district court in:
       (1) a personal injury, surviva4 or wrongful death action by or against a person in the
    person's capacity as a personal representative;
       (2) an action by or against a trustee;
       (3) an action involving an inter vivos trust, testamentary trust, or charitabletrust;
       (4) an action involving a personal representativeof an estate in which each other party
    aligned with the personal representative is not an interested person in that estate;
       (5) an action against an agent orformer agent under a power of attorney arisingout of
    the agent's performance of the duties of an agent; and
       (6) an action to determine the validity of a power of attorney or to determine au agent's
    rights,powers, or duties under a power of attorney.
    (c) Subsection (a), Section 5B, Texas Probate Code, is amended to read as follows:
    (a) A judge of a statutory probate court, on the motion of a party to the action or on the
motion of a person interested in an estate, may transfer to the judge's [his] court from a
district, county, or statutory court a cause of action related to a probate proceeding
[appertaining to or incidento an estate] pending in the statutory probate court or a cause of
action in which a personal representative of an estate pending in the statutory probate court
is a party and may consolidate the transferred cause of action with the other proceedings in
the statutory probate court relating to that estate.
    (d) Subsection (i), Section 25.0022, Government Code, is amended to read as follows:
    (i) A judge assigned under this section has the jurisdiction, powers, and duties given by
Sections 44 4C, 4F, 4G, 4H [ 5], 5B, 606, 607, and 608, Texas Probate Code, to statutory
probate court judges by general law.
    (e) Subsection (c), Section 25.1132, Government Code, is amended to read as follows:
    (c) A county court at law in Hood County has concurrent jurisdiction with the district court
in:
       (1) civil cases in which the matter in controversy exceeds $500 but does not exceed
    $250,000, excluding interest;
       (2) family law cases and related proceedings;
                                               4278
81st LEGISLATURE-REGULAR SESSION                                      Ch. 1351, § 13(a)

      (3) contested probate matters under Section 4D(a) [5()], Texas Probate Code; and
      (4) contested guardianship matters under Section 606(b), Texas Probate Code.
   (f) Subsection (b), Section 25.1863, Government Code, is amended to read as follows:
   (b) A county court at law has concurrent jurisdiction with the district court over contested
probate matters. Notwithstanding the requirement in [Subsection](b)] Section 4D(a) [5],
Texas Probate Code, that the judge of the constitutional county court transfer a contested
probate proceeding to the district court, the judge of the constitutional county court shall
transfer the proceeding under that section to either a county court at law in Parker County or
a district court in Parker County. A county court at law has the jurisdiction, powers, and
duties that a district court has under [ubseetion (b),] Section 4D(a) [5], Texas Probate Code,
for the transferred proceeding, and the county clerk acts as clerk for the proceeding. The
contested proceeding may be transferred between a county court at law in Parker County and
a district court in Parker County as provided by local rules of administration.
   (g) Subsection (a), Section 123.005, Property Code, is amended to read as follows:
   (a) Venue in a proceeding brought by the attorney general alleging breach of a fiduciary
duty by a fiduciary or managerial agent of a charitable trust shall be a court of competent
jurisdiction in Travis County or in the county where the defendant resides or has its principal
office. To the extent of a conflict between this subsection and any provision of the Texas
Probate Code providing for venue of a proceeding brought with respect to a charitable trust
created by a will that has been admitted to probate, this subsection controls.
   (h) Sections 4, 5, and 5A, Texas Probate Code, are repealed.
   (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. An action filed or proceeding
commenced before the effective date of this Act is governed by the law in effect on the date
the action was filed or the proceeding was commenced, and the former law is continued in
effect for that purpose.
   SECTION 13. (a) Effective January 1, 2014, Subtitle A, Title 2, Estates Code, as adopted
by H.B. No. 2502, Acts of the 81st Legislature, Regular Session, 2009, if that Act is enacted
and becomes law, is amended by adding Chapters 31 and 32 to read as follows:

                         CHAPTER 31.      GENERAL PROVISIONS
  Sec. 31.001. SCOPE OF "PROBATE PROCEEDING" FOR PURPOSES OF CODE.
The term "probateproceeding," as used in this code, includes:
     (1) the probate of a will, with or without administrationof the estate;
     (2) the issuance of letters testamentary and of administration;
     (3)an heirship determination or small estate affidavit, community property adminis-
  tration,and homestead andfamily allowances;
     (4) an application, petition, motion, or action regarding the probate of a will or an
  estate administration,including a claim for money owed by the decedent;
     (5) a claim arisingfrom an estate administrationand any action brought on the claim;
     (6) the settling of a personal representative'saccount of an estate and any other matter
  related to the settlement, partition,or distributionof an estate; and
     (7)a will construction suit.
  Sec. 31.002. MATTERS RELATED TO PROBATE PROCEEDING. (a) For purposes
of this code, in a county in which there is no statutory probate court or county court at law
exercising original probate jurisdiction,a matter related to a probate proceeding includes:
     (1) an action against a personal representative or former personal representative
  arising out of the representative'sperformance of the duties of a personal representative;
     (2) an action against a surety of a personal representative or former personal represen-
  tative;
     (3) a claim brought by a personal representative on behalf of an estate;
                                              4279
Ch. 1351, § 13(a)                            81st LEGISLATURE-REGULAR SESSION

     (4) an action brought against a personal representative in the representative'scapacity
  as personal representative;
     (5) an action for trial of title to real property that is estate property, including the
  enforcement of a lien against the property; and
     (6) an actionfor trial of the right of property that is estate property.
  (b) For purposes of this code, in a county in which there is no statutory probate court, but
in which there is a county court at law exercising original probate jurisdiction, a matter
related to a probate proceeding includes:
     (1) all matters and actions described in Subsection (a);
     (2) the interpretationand administrationof a testamentary trust if the will creating the
  trust has been admitted to probate in the court; and
     (3) the interpretationand administrationof an inter vivos trust created by a decedent
  whose will has been admitted to probate in the court.
  (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 representa-
  tive.

                             CHAPTER 32. JURISDICTION
  Sec. 32.001. GENERAL PROBATE COURT JURISDICTION; APPEALS. (a) All
probate proceedings must be filed and heard in a court exercising original probatejurisdic-
tion. The court exercising original probate jurisdiction also has jurisdiction of all matters
related to the probate proceeding as specified in Section 31.002 for that type of court.
   (b) A probate court may exercise pendent and ancillary jurisdiction as necessary to
promote judicialefficiency and economy.
   (c) A final order issued by a probate court is appealableto the court of appeals.
  Sec. 32.002. ORIGINAL JURISDICTION FOR PROBATE PROCEEDINGS. (a) In a
county in which there is no statutory probate court or county court at law exercising
original probate jurisdiction,the county court has originaljurisdiction of probate proceed-
ings.
   (b) In a county in which there is no statutory probate court, but in which there is a county
court at law exercising original probate jurisdiction, the county court at law exercising
originalprobate jurisdiction and the county court have concurrent original jurisdiction of
probate proceedings, unless otherwise provided by law. The judge of a county court may
hear probateproceedings while sittingfor the judge of any other county court.
   (c) In a county in which there is a statutory probate court, the statutory probate court has
originaljurisdictionof probate proceedings.
  Sec. 32.003. JURISDICTION OF CONTESTED PROBATE PROCEEDING IN COUN-
TY WITH NO STATUTORY PROBATE COURT OR STATUTORY COUNTY COURT. (a)
In a county in which there is no statutory probate court or county court at law exercisinig
original probatejurisdiction,when a matter in a probate proceeding is contested, the judge
of the county court may, on the judge's own motion, or shall, on the motion of any party to
the proceeding, according to the motion:
      (1) request the assignment of a statutory probate court judge to hear the contested
  matter, as provided by Section 25.0022, Government Code; or
      (2) transferthe contested matter to the district court, which may then hear the contested
  matter as if originallyfiled in the district court.
   (b) If a party to a probate proceeding files a motion for the assignment of a statutory
probate court judge to hear a contested matter in the proceeding before the judge of the
county court transfers the contested matter to a district court under this section, the county
                                              4280
81st LEGISLATURE-REGULAR SESSION                                       Ch. 1351, § 13(a)

judge shall grant the motion for the assignment of a statutory probate court judge and may
not transfer the natter to the district court unless the party withdraws the motion.
   (c) A party to a probate proceeding may file a motion .for the assignment of a statutory
probate court judge under this section before a matter in the proceeding becomes contested,
a nd the motion is given effect as a motion for assignment of a statutory probate court judge
under Subsection (a) if the matter later becomes contested.
   (d) Notwithstanding any other law, a transfer of a contested matter in a probate
proceeding to a district court under any authority other than the authority provided by this
section:
      (1) is disregardedfor purposes of this section; and
      (2) does not defeat the right of a party to the proceeding to have the matter assigned to a
   statutory probate court judge in accordance with this section.
   (e) A statutory probate court judge assigned to a contested matter under this section has
the jurisdiction and authority granted to a statutory probate court by this subtitle. On
resolution of a contested matter for which a statutory probate court judge is assigned under
this section, including any appeal of the matter, the statutory probate court judge shall
return the matter to the county courtfor further proceedings not inconsistent with the orders
of the statutory probate court or court of appeals, as applicable.
   (/l A district court to which a contested matter is transferred under this section has the
jtrisdiction and authority granted to a statutory probate court by this subtitle. On
resolution of a contested matter transferred to the district court under this section, including
 any appeal of the matter, the district court shall return the matter to the county court for
further proceedings not inconsistent with the orders of the district court or court of appeals,
as applicable.
   (g) The county court shall continue to exercise jurisdiction over the management of the
estate, other than a contested matter, until final disposition of the contested matter is made
in accordance with this section. After a contested matter is transferred to a district court,
any matter related to the probate proceeding may be brought in the district court. The
district court in which a matter related to the probate proceeding is filed may, on its own
motion or on the motion of any party, find that the matter is not a contested matter and
transfer the matter to the county court with jurisdiction of the management of the estate.
   (h) If a contested matter in a probate proceeding is transferred to a district court under
this section, the district court has jurisdictionof any contested matter in the proceeding that
is subsequently filed, and the county court shall transfer those contested matters to the
district court. If a statutory probate court judge is assigned under this section to hear a
contested matter in a probate proceeding, the statutory probate court judge shall be assigned
to hear any contested matter in the proceeding that is subsequentlyfiled.
   (i) The clerk of a district court to which a contested matter in a probate proceeding is
transferred under this section may perform in relation to the contested matter any function
a county clerk may perform with respect to that type of matter.
   Sec. 32.004. JURISDICTION OF CONTESTED PROBATE PROCEEDING IN COUN-
TY WITH NO STATUTORY PROBATE COURT. (a) In a county in which there is no
statutory probate court, but in which there is a county court at law exercising original
probate jurisdiction, when a matter in a probate proceeding is contested, the judge of the
county court may, on the judge's own motion, or shall, on the motion of any party to the
proceeding, transfer the contested matter to the county court at law. In addition, the judge
of the county court, on the judge's own motion or on the motion of a party to the proceeding,
may transfer the entire proceeding to the county court at law.
   (b) A county court at law to which a proceeding is transferred under this section may
hear the proceeding as if originally filed in that court. If only a contested matter in the
proceeding is transferred, on the resolution of the matter, the matter shall be returned to the
county court for further proceedings not inconsistent with the orders of the county court at
law.
   Sec. 32.005. EXCLUSIVE JURISDICTION OF PROBATE PROCEEDING IN COUN-
TY WITH STATUTORY PROBATE COURT. (a) In a county in which there is a statutory
                                                4281
Ch. 1351, § 13(a)                             81st LEGISLATURE-REGULAR SESSION

probate court, the statutory probate court has exclusive jurisdiction of all probate proceed-
ings, regardless of whether contested or uncontested. A cause of action related to the probate
proceeding must be brought in a statutory probate court unless the jurisdiction of the
statutory probate court is concurrent with the jurisdiction of a district court as provided by
Section 32.007 or with the jurisdictionof any other court.
   (b) This section shall be construed in conjunction and in harmony with Section 145 and
all other sections of this title relating to independent executors, but may not be construed to
expand the court's control over an independent executor.
  Sec. 32.006. JURISDICTION OF STATUTORY PROBATE COURT WITH RESPECT
TO TRUSTS AND POWERS OF ATTORNEY In a county in which there is a statutory
probate court, the statutory probate court has jurisdictionof-
      (1) an action by or against a trustee;
      (2) an action involving an inter vivos trust, testamentary trust, or charitable trust;
      (3) an action against an agent orformer agent under a power of attorney arisingout of
   the agent's performance of the duties of an agent; and
      (4) an action to determine the validity of a power of attorney or to determine an agent's
   rights, powers, or duties under a power of attorney.
   Sec. 32.007. CONCURRENT JURISDICTION WITH DISTRICT COURT. A statutory
probate court has concurrentjurisdictionwith the district court in:
      (1) a personal injury, survival, or wrongful death action by or against a person in the
   person's capacity as a personal representative;
      (2) an action by or against a trustee;
      (3) an action involving an inter vivos trust, testamentary trust, or charitable trust;
      (4) an action involving a personal representative of an estate in which each other party
   aligned with the personal representative is not an interested person in that estate;
      (5) an action against an agent orformer agent under a power of attorney arisingout of
   the agent's performance of the duties of an agent; and
      (6) an action to determine the validity of a power of attorney or to determine an agents
   rights,powers, or duties under a power of attorney.
   (b) Sections 4A, 4B, 4C, 4D, 4E, 4F, 4G, and 4H, Texas Probate Code, as added by Section
12 of this Act, are repealed.
   (c) Except as otherwise provided by this subsection, this section takes effect January 1,
2014. The changes in law made by this section take effect only if H.B. No. 2502, Acts of the
81st Legislature, Regular Session, 2009, is enacted and becomes law. If that bill does not
become law, this section has no effect.
   SECTION 14. Except as otherwise provided by this Act, the changes in law made by this
Act apply only to an action filed on or after the effective date of this Act. An action filed
before the effective date of this Act is governed by the law applicable to the action
immediately before the effective date of this Act, and the former law is continued in effect for
that purpose.
   SECTION 15. Except as otherwise provided by this Act, this Act takes effect September
1, 2009.
   Passed the Senate on April 2, 2009: Yeas 31, Nays 0; May 28, 2009, Senate refused to
         concur in House amendments and requested appointment of Conference Commit-
         tee; May 29, 2009, House granted request of the Senate; June 1, 2009, Senate
         adopted Conference Committee Report by the following vote: Yeas 31, Nays 0;
         passed the House, with amendments, on May 20, 2009: Yeas 139, Nays 0, one
         present not voting; May 29, 2009, House granted request of the Senate for
         appointment of Conference Committee; May 31, 2009, House adopted Conference
         Committee Report by the following vote: Yeas 146, Nays 0, two present not voting.
   Approved June 19, 2009.
   Effective September 1, 2009, except § 13, which take effect January 1, 2014.
                                             4282
    TAB B

OF THE APPENDIX
                                  No. 04-17-00333-CV

                            Court of Appeals, Fourth District
                                  San Antonio, Texas


                              In re Maria Cecilia Martinez


                            Relating to Cause No. PR-06-004
                                   in the County Court
                                   Starr County, Texas


STATE OF TEXAS                     §
                                   §                        AFFIDAVIT OF
COUNTY OF HIDALGO                  §            MARIA DEL ROSARIO G. POPE

      Before me, the undersigned authority, on this day personally appeared
MARIA DEL ROSARIO G. POPE, who after being duly sworn by me, deposed
and stated as follows:

       1.     I am over the age of 18. I am competent to make this affidavit. I have
              never been convicted of a crime involving moral turpitude. I have
              personal knowledge of all facts stated herein, and they are true and
              correct.

       2.     I am one of the independent co-executors in the above-styled cause. I
              am also a daughter of Ignacia Gutierrez who is the decedent in that
              cause. This affidavit is submitted in support of my Response to First
              Amended Petition for Writ of Mandamus, which is joined by my sister
              Maria Iris Trevino. Iris is also one of the independent co-executors in
              this cause.

       3.     On January 26, 2017, Hon. Romero Molina signed an order (the
              January Order) based on an agreement that the attorneys had entered
              in November 2016 on behalf of the six co-executors in this case. My
              and Iris's attorney, O.C. Hamilton Jr., had attended that hearing and



Affidavit of Maria Del Rosario G. Pope                                     Page 1 of2
                    entered the agreement on our behalf. He also approved the January
                    Order as to form and substance on our behalf.

       4.           Iris and I took several actions to comply with the terms of the
                    November agreement and the January Order. These actions required
                    substantial investment of time and money. We understood that the
                    other executors had agreed to the terms of the agreement and that they
                    were working to comply as well, and we acted in good faith. In May
                    2017, our sister Maria Cecilia Martinez (who is also an independent
                    co-executor) filed her petition for writ of mandamus challenging the
                    January Order. By that time, we had already completed the actions
                    described below in this affidavit.

       5.           Paragraph I of the January Order requires the estate to reimburse me
                    $3,000.00 for the survey that I paid for to survey property I am to
                    receive from the estate. It requires me to pay for anything above that
                    amount. Before November, I paid about $6,000.00 for the survey in
                    question, but as a compromise, I agreed to waive part of that amount
                    as a term of the November agreement.

       6.           Paragraph 3 of the January Order requires each attorney to prepare
                    correction distribution deeds on behalf of his clients. To comply with
                    this order, Iris and I authorized 0.C. Hamilton Jr. to prepare these
                    deeds, and the deeds were prepared. We incurred substantial legal
                    fees and expenses to compensate Mr. Hamilton's firm for these
                    services.

       7.           Paragraph 4 of the January Order requires the executors to inventory
                    cattle on ranches owned by the estate. Iris and I inventoried the cattle
                    according to the order, and this required a substantial investment of
                    time and expense.

                                                        ~, ~,4~.-,, .&. ~
                                                         Maria Del Rosario G. Pope

       SUBSCRIBED AND SWORN T                                                    ~ day      of
_   _....,~~-~,2017.

                 ~"'"""'
         {(~
           ~~~~\                   NotarY Public              Public, State
            .:             :.~ STATCOF TEXAS
                     ;:;;_~} Not~, :-; ID# 12425472-4
                                                        My commission expires:
                   'g~- My Camm. Exp. 06-24-2018

Affidavit of Maria Del Rosario G. Pope                                               Page 2 of2
    TAB C

OF THE APPENDIX
                                    Tex. Estates Code § 307.002
 This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature
Texas Statutes & Codes Annotated by LexisNexis® > Estates Code > Title 2 Estate of Decedents; Durable
Powers of Attorney > Subtitle G Initial Appointment of Personal Representative and Opening of Administration
> Chapter 307 Validity of Certain Acts of Executors and Administrators



Sec. 307.002. Joint Executors or Administrators.


    (a) Except as provided by Subsection (b), if there is more than one executor or
       administrator of an estate at the same time, the acts of one of the executors or
       administrators in that capacity are valid as if all the executors or administrators had
       acted jointly. If one of the executors or administrators dies, resigns, or is removed, a
       co-executor or co-administrator of the estate shall proceed with the administration
       as if the death, resignation, or removal had not occurred.
    (b) If there is more than one executor or administrator of an estate at the same time, all
        of the qualified executors or administrators who are acting in that capacity must join
        in the conveyance of real estate unless the court, after due hearing, authorizes fewer
        than all to act.

History

Enacted by Acts 2009, 81st Leg., ch. 680 (H.B. 2502), § 1, effective January 1, 2014.


Texas Statutes & Codes Annotated by LexisNexis®
Copyright © 2018 Matthew Bender & Company, Inc.
a member of the LexisNexis Group. All rights reserved.


  End of Document
    TAB D

OF THE APPENDIX
§ 240:' 'Jomt Execut6is or'4aministrators                                                                                                  J''.,, .,, ·,;·· q.,.                         J;£~               .'.•          '            {, : ''') .' tJ                 ••
J' ·   ~!     ·     .dv~~--·r ~,   ~   ··   ~-   ("*'·~,~      1·          ~.'"   ·t   {     ,~./?(?       -.,,.         Yf'.'       .;·    ,i,        ~;       1'f-z.   1
                                                                                                                                                                                  :;..      .....~t..   -a!      i~'~,;           -~    f' _,J ~;'•tJ~_gtil            i';   ¥



   Should there be more than one executor or admini~trator of. the same estate :at!.t~e
i;;ame·tim~,..the, ~ct!) of on~ 1of the~. as 'IDl<!h- exec\lit9il". o:r, ~OJninistratqr ,,J:iatl }:>~p.N,!)lli,g ,as
if all had acted jointly; and, in case of the death,. J"esign~tio~ or r.~,mgvpl qf .a.n. ~~fJ®tJ2P
Qr 1 11uim~~tt,'l1-t~r '· if: tlte~e he ,, c:o 1~xe'N~9F, ~f: co-.~~s~atps, ·qi~ sue:.~.~~~'-~~~' ~ll~ shall
proceed with ~e administration .as. if nq. such death, resignation or remov:ai. )i~g
QCCUrred._ .Pr~Vlde~, qil!.ever, t~~~,this Se~on shall, 1~?} be ~9~ed}o, ~                                     _pp.e
Of St?\l'.erlµ exe~t<)~ .or 'i{~sttatPrs ~· cdnv~y rea.J,. esta~·, ·~ut .in sucq                              .l'the
~tOi;fo.o~ a9~fnj~trator$.'Whp ha~e'quaµfied as,~cli an4ja\:~ actliig.~)il~"~ ·j,8~                                                                                                                                                                     I


          Y
            ance' "ullJ.ess the· 'courl;
in tne. CollVe
                                   ·'·'' ''',.
                                              after due hearin au'ihotGes' }eSs'tli ... '
                                                               .~            : , '     ~).   ,   ,!
                                                                                                    ·{&Uai!t:
                                                      ·" ····· ,,...,,J~1 , ..t>·•.' ·'· 1·· "·1~·' ;·nr• ·.-'     "·'    }   ~-            .... \,,,..,.   '      •     "'              ,;,. ..   « .. j     .. .t   ~       t          '~   (,    "   ,~('J."' ~$'    .•




~cts 1955,..~tP ~eg., p. 88, .~,'._55, eft.~ar~.. 1, 1~5~, . ! ,,.                                                                                          ·r'"i ,.,.                        ·'                                         \     i'            i    ,.;;·;r~
•[          .•~~   , J ~c~~. ~                     _t __ ~__        ~...                              -·                           r{ .I                         .: !        ,:                             ~,~J;~        .. ""'" , ',.. -~j t'\ ~               1~~, ~~p
     TAB E

OF THE APPENDIX
  § 5. Juiisdiction With Re§p~ct'to Probate Proceedings                                                       , '1        ·, •
                                                                                                                                 1
                                                                                                                                     '

     (~)_ R~pe~ed hy,Acts 200~, 7Bth ~~g::. i;:h. 1060, §. 1s.                            ,1
                                                                                              1
                                                                                                  ·   · · •

     (b) In those counties in which there is no statutory: proba,te ~ourt, county court at·law,
 ~r other statutqry. cgurt ~exercising t.h&. juri~~ctio;n of .~ 'Pn~b~te1 .court, a1J aP,pll~tioi:is,,
 p~titions 1 and motion~ ,:re~cijng probate an~ administrationfl sh~J~e filed and he~9-Jn,
 the1 county. c~urt. . In cpntest~d prpoate matters, the judge of tI:t~ county court iy~y. on
   thejudge'sc?wn motion                    o.r
                                  shall.on the:,niotion of.any party . ~'the,prq~eeding, E,LCCO~ding,
  to the motion: ;;            · , -,       , '                      , · '. , .r .,1          ,., ~    • · ,.                       ,


       (1) request the assignment 0£ a statutory probate court,iju.~ge to hear the contested
  portion of ~-; the proc~edit1g,,
                 ,        ,  ~-     ~'·
                                  --.
                                       as. provided
                                        i    ··:.,:.r .;. .. ,. ·"
                                             4..)   ,   •
                                                                   by Section 25.002~,          Governm~nt Code; or
                                                                                 , t 1"''~ ~.' -~),,    .• · .!.i ..... ·
    . (2).. ~r~s~~r the cont~sted portion,· 9( tb.e pro.ceeding ~o th~ dis~rict coUI1? which· ~~Y:
  then hear the contested matter as if originally filed in district ~outj;. , , ,· .                                                   ., 1
   . (q--1) If the judge of the coµnty        ~ourt has. not .tr~sferr~d. ~ contested probate matter
  to' the district court under this i;ection ~y the time 'a pSrtY'' fil~s a motion f ~~igiµD,~nt                     o;
                                          1


  of~a .stEltUtocy probat~ co~tjudge, the' ,Counfy judge shallgr:?Ut ~h~ motion!ill,d ~f'qot
  tran~er ~h~ :m~tter .to di~fi{~f ~qun rinJess· the party witlidra":~. ~~.e motio~-. .A parcy to
  a proceeding may file a motiqn for assignment of a statutory probate' court judge. under
  this' seCtion "6-eforJ tiie niatter 'becomes a c6ntested 'probate niatt~r, aiid the ID:otion is
  given ''"effe& ~ ~ iD:otion' for; aasigtlment cof ' a stafutory proliate ~ourt jttdge ! lfuder
  Subsection (b) 'Of this :section ·if the matter later becemea;contested';! -Artransfer of a
  contested probate matter to' district court under anycauthority other. than the authority
  provi9ed..bythissection:•·. ·,.:,,                  · .H·              •  • ;·     ,,,r.       ,,:J'     :, :i

      (1) is disregard~d for purJ)oses oftliis section; fuid                      ' ', c "             ''                        ~' /~,  'q   ,·




      ·~2)•dbes not' defeat the;fight of a party to.the matter to have·the matter assigned to a
  statutory. probate court judge in accordance with this section.·                                               11: ~,~ • '~ ". ••

   >·(b:;..2)/,A statutory probate/·Court Judge assigned to a cQntested·.probate· matte:r .as
  provided by Subsection.(b). of this section .lias. ~he jurisdiction 'and1authority· granted to a
· statutory~ prob~te · .coun by. 1this section and·· Sectfoms 5.A, .and .5B · of'1thil:ll ~code.: . 0I}
                           .       ,.....   ,.                               '.                                           ~

                                                                                                                                      ·9           .
§5                                                                                                     Johanson's. Texruf Probate' Code ·Annotated

 resolution of a contested matter, incl'\iding an appeal of a matter, to which a statutory
 probate court judge, has been assigned, the statutory prob1:1te court judge shall transfer
 the resolved portion .of the· caae to the county court for·"further proceedings; not
 inconsistent with the orders of the statutory probate court judge.
   (b-3) In contested matters transferred to the district: coUrt, the district 'court has the
general jurisdiction ofa 0(
                               probate.court. On resolution of a ~ontested matter, including
                                                                              c         l.    '.   ~     '         ·. .   ,<   .   "

 an appeal of a matter, the district court shall transfer ~the re.solved portion of the case to
 the county court for furlher'pJ ro'heedings not iriconsistent'W:ith the orders of the district
 court.                                                                        "'
    ~<          ~ q
                 <     1    °;· ~                                                                                                              v




   {b-4) The county court shall continue to exercise jurisdiction.over the management of
 the estate with the exception of, the contested matter until final disposition of the
contested matter is ,made; by th~ assigned statutory probate court judge or the district
 court.                                                                  '    f.,   l    '


   (b-5) If a contested portion of the proceeding is transferred to a district court undef
Subsection (b-3) of this section, the clerk of the district court may perform in relation to
 the transferred portion of the proceeding any function a county clerk may perform in
 that type of contested proceeding,                                                    n

   (c) In those counties in which there is no statutory probate court, but in which there
is a county court at law or other s~atutory court e~ercising the jurisdiction. of a probate
court, all applications, petitions,          motions regarding probate and administrations   and
shall be filed and heard in those courts and the constitutional county court, unless
otherwise provided by law. J The judge of a county court may hear any of those matters
regarding probate ot administrations sitting for the judge of any other county court. In
                         1



contested probate matters; th'e judge of the constitutional county court may on the
judge's own motion, and shall on the'.motion of a'party to the proceeding, transfer the
proceeding to the county co:urt at law or a statutory' cotirt exercising the jurisdiction of a;
probate court other than a statutory probate court. The court to which the proceeding is
transferred may hear the proceeding as if originally filed in the court.
                     <           .: ••               •   .,
                                                         -·~        (> ,'~t                                               h            •   :




 I (d) In those counties ih which there is a statutory probate court, all applications,
petitions, and motibns regarding probate or administrations shall be filed and heard in
the statutory probate court.                                                                                                                           ·   l·         ·   ~

   (e) 'A statutory probate c9urt has concurrent jurisdiction With the district court in all
persona} injury, survivitl, br \vrongful death actions by or against a person,, in the
person's capacity' as a personal representative, in all actions by or against a trustee, in
all actions invol~g an inter vivos trust, testamentary trust, or charitable trust, arid ih
all '{1cti01;1s involvµig a personal representative of an estate in which each other party
aligh~d '~th
         '  ;,,.
             .
                   the ''persona],
                            ..
                                   ,representative
                                   '     ' '   ~,·
                                                   is, not an interested person
                                                               "-    :    .     iri that estate.                                   .               .            ~.,



   (f) All courts exercising original probate jurisdiction shall have the power to hear all
matters incident to an estate. When a surety is called on to perform in place of an
administrator, all courts exercising original probate jurisdiction may award judgment
against the personal representative in favor of his ~urety in the same suit.
  {g) All final orders ··of any court exercising original probate jurisdiction shall be
appealable to the courts of appeals.
  (h) A statutory probate ·court has jurisdiction· over any matter appertaining to an
estate or incident to an: estate and has jurisdiction over any cause of action in which a
personal representative of an estate pending in the statutory probate court is a party.
10
       Probate Code-General Provisions                                                                                             §;5

         (i) A statutory probate court may exercise the pendent· tl!ld ancillary·· jurisdictibn
       necessary to promote judicial effiCiency and econo:nly. '' .'.; '>. . '"' • ' V ,, fC '
        '·     ·                                  ·,   •   .. ~ '·   1     '   '·   "   ':   ~ ·'   ;~_,"   ~ "· r~   ik ';,   ·    ·

        Acts 1955, 54th~J:.eg., p. 88, ch.' 55, eff.<Jan. 1, 195i;i. «Am.ended by Acts:l973,'63rd Leg,fp. ·1684;
        ch: 610, § 1; ~cts 1975, 64th<Lleg.,'p. 2195,,.ch. 701, § 2, eff. Jtine 21;•1975; Aets11977·, 65tlH,~g:,
        p. 1170, ·ch. 448i § 1, eff. Aug. 29,i 1977; Acts 1979, 66th Leg;, p" 1740; ch.' 713, § 2;•effl'Aug.'•27,
        1979; A~s 1983, 68th Leg., p. 4~22, ch. 647, § 2, eff.. ~e~t.1 1, 1983; .Act~ 198~; 68th:L~gr;'p. 543~:
r
•      ·ch. 1015, § 1, eff. Aug. 29, 1983, Acts 1985, 69th Leg.,·        cp.
                                                                          159, § 3i effA3ept~ 1, 1985,··Acts ~98'1,
)       70th Leg~. ch. 459; § 4, eff. Sept. l,' 1987; Acts 1989, 7lst·Leg./ch:.11oa5, § 2,-eff. Sept::1,tl989;
t       Acts 1993, 73rd Leg~, ch. 957, § 5; eff. Sept. l, 1993; Acts' l997p75th ·Leg;, ch. 1435;-§ fl.,reff.,Sept.
        1, 1997; Acts 1999, 76th Leg., ch. 1389, § 1, eff. Aug. 30, 1999; Acts 2001:/ 77th Leg,, clt.' 63, §, li
        eff. Sept. ,1, 2001; Acts 2003, 78th Leg., ch. 1060, §· '1, eff. Sept. 1, 2003; Acts 2003, .78tb; Leg.; ch.
f       1060, §, 16, eff. Sept. 1, 2003; Acts 2003,•78th Leg., ch,,1060,,,§ 2, eff. Sept. l,.,2003;;4cts 2003,
        78th Leg., ch .. ;1060, § 2, eff. Sept;·l, 2003; Acts,2005,,79th,·Leg.,,ch.-•551, §.;:Ji'"eff. Sept.:;1, 2005 .
....
     TAB F

OF THE APPENDIX
 § 5A. Matters Apperta~pin,_ an~ W.~ident to an Estat!
    (a) In proce~clings in the constitutio~ county c~mrt_s and statutory c~unty courts at
 law, the phrases "appertaining to estates" and "incident to an. estate" in this Code
 include the probate of wills, the issuance of letters testamentary and of administration,
 the determination of heirship, and also include, but are not limited to, all claims by or
 against an estate, all actions for trial of title to land incident to        an
                                                                           estate and for the
 enforcemeht of liens thereo·n incident to an estate, all actions for trial ~f the right of
 property incident to an estate; and·actions to co'iistnii! wills, and gerierally all matters
 relating to the settlement, p.a rtition, and diatribtition of estates .of deceB;Sed persons.
  . (b) In proceedings in the statutory probate courts, the phrases "appertaining to ·
estat~s" and '·' incident tQ an estate" in this Code include the probate of wills, the
issuance of letters testamentary and of administration, and the · determination of
heirshlp, and also include, but are not limited to, all claiins liy or amllilst an estate,' all
actions for trial of title to land     and                         of
                                       for the enforcement li~ns thereon, all actions for
trial of tlie right of property, all actions td construe wiUs, the interpretation and
administration of testamentary trµsts and the applY\ng of constructive mists, and
generally aii matters relating to .the coUectfon, settlement, partiiion, and distril>ution of
estates of deceased persons. All statutory probate cow-ts ·may, in the exertjse of their
jurisdiction, notwithstanding any other provisions of this Code, hear all suits, actions,
and applications filed against or on behalf of any beirship proceeding 'o r decedent's
estate, including estates administered by an independent executor; .all such suits,
actions, and applications are appertaining to and .i ncident to an estate. This subsection
shall be constnied in conjunction with and in 'harrrio.tiy With Section, 145 ajld all other
~ctions of ~his C~e dealing with independent executors, b~t shall not be construed so
as to incre~e permissible judicial control over indepe)lde'nt executors. E~cept for
situations mwhich the jurisdiction of a statutory prob1;1te court is concurrent with tliat
of a district court as provided by Section 5(e) of this Code or any other co\lrl, any cause
of action appertaining to estates or incident to an estate shall be brought in a statutory
probate court.                                          ,,
   (c) to (e) Repealed by Acts 2003, 78th Leg., ch. 1060, § 16.
   (0 Notwithstanding any other ,P!Qyision of this ch~pter, the proper venue for an
action by qr a~st a person~ repi;esentat~~e fo}" personal injury, d_e.ath, or property
deiQages is de.t~imin.ed under Section 15.007, Civil Practice and Remedies Code. ,
Aiided by Acts 1979, 66th Leg., p. 1741, ch. 713, § 3, eff. 1Aug. '27, 1979. Ameoded by Acts 1985,
69th Leg., ch. 876, § 1, eff. Aug. 26, 1985; Acts 1987, 70th Leg., ch. 459, § 1, eff. Sept 1, 1987;
Acts 1989, 7lst Leg., ch. 1035, § 3, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 957, § 6, eff. Sept.
1, 1993; Acts 1997, 75th Leg., ch. 1302, ~ 1, eff. Sept. l, 1997; .Act's :t999, 76th Leg., ch. 64, § 1,
etr. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 204, § 3.05, eff. Sept. 1, 2003; Acts 2003, 78th Leg.,
ch. 1060, §§ 3, 4, 161 eff. Sept. l, 2003.
    TAB G

OF THE APPENDIX
                                      Tex. R. Civ. P. 11
                     This document is current through October 1, 2017.
Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART I. GENERAL
RULES



Rule 11 Agreements to Be in Writing

Unless otherwise provided in these rules, no agreement between attorneys or parties
touching any suit pending will be enforced unless it be in writing, signed and filed with the
papers as part of the record, or unless it be made in open court and entered of record.


Texas Rules
Copyright © 2018 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights
reserved.


 End of Document
    TAB H

OF THE APPENDIX
                                                                                  Filed: 1/9/2018 4:10 PM
                                                                                     Dennis D. Gonzalez
                                                                                        County Clerk
                                                                                     Starr County, Texas
                                                                                       Jose Beliz

                                     CAUSE NO. PR-06-004

IN THE ESTATE OF                                 §             IN THE COUNTY COURT
                                                 §
IGNACIA G. GUTIERREZ,                            §             OF
                                                 §
DECEASED                                         §             STARR COUNTY, TEXAS

              AMENDED ORDER DENYING PLEA TO THE JURISDICTION

       Came on to be heard Cecilia Martinez's Plea to the Jurisdiction, and the Court,

having considered the motion, any response thereto, along with the arguments and

authorities of counsel, finds that such plea is not well taken; and accordingly, it is hereby

DENIED.

       This Order amends and replaces the Court's Order Denying Plea to Jurisdiction

signed on or about May 22, 2017.
                   9            January
       SIGNED this _ _ day of _ _ _ _ _ _ _ _ _ , 2018.



                                                       JUDGE PRESIDING



cc:   O.C. Hamilton Jr., Atlas, Hall & Rodriguez, LLP, 818 W. Pecan Blvd, P.O. Box 3725 (78502-3725),
      McAllen, Texas 78501 - Email: och@atlashall.com

      Marcel C. Notzon, Ill, The Notzon Law Firm, Northtown Professional Plaza, 6999 McPherson, Suite
      325, Laredo, Texas 78041 - Email: mcn@notzonlawfirm.com

      Keith C. Livesay, Livesay Law Office, Brazos Suites No. 9,517 West Nolana, McAllen, Texas 78504
      - Email: RGVAppellateLaw@yandex.com

      Dalinda B. Garcia, Law Office of Dalinda B. Garcia, P.C., 4847 S. Jackson Rd., Suite E, Edinburg,
      Texas 78539 - Email: dalindabgarcialawoffice@yahoo.com
