PROBATE, GUARDIANSHIP AND TRUST JURISDICTION IN

Presented by: LISA H. JAMIESON, Fort Worth Pope, Hardwicke, Christie, Schell, Kelly & Taplett, LLP

Written by: FRANK N. IKARD, JR. ADAM HERRON Ikard Golden & Jones, P.C. Austin

State Bar of Texas 41ST ANNUAL ADVANCED PLANNING & June 7-9, 2017 Houston

CHAPTER 6

Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

TABLE OF CONTENTS

INTRODUCTION ...... 1

PART 1: PROBATE JURISDICTION ...... 3

PART 2: GUARDIANSHIP JURISDICTION ...... 11

PART 3: TRUST JURISDICTION ...... 19

PART 4: DOMINANT JURISDICTION ...... 21

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PROBATE, GUARDIANSHIP AND Article V, Section 15 provides, in part, that "[t]here shall be established in each TRUST JURISDICTION IN TEXAS in this State a County . . . .” 1.2. Article V, Sections 15 through 17 of the INTRODUCTION Texas Constitution, as well as Chapters The jurisdiction of Texas over the estates of 25 and 26 of the Texas Government decedents and incapacitated persons has evolved for Code, outline the duties of CCCs and many years and was fairly well-settled until the passage their officers. The CCC “has jurisdiction of the Texas Estates Code (the “TEC”), which became as provided by law.” Tex. Const. art. V, effective on January 1, 2014. A decision was made to § 16. redraft virtually all of the jurisdictional provisions of the 1.3. The of CCCs are not required to Texas Probate Code when the TEC was enacted. While be licensed attorneys, but Article V, this redraft did not make many major substantive Section 15 of the Texas Constitution changes in the law, it incorporated entirely new provides that the of a CCC “shall language that must now be interpreted by the courts. be well informed in the law of the The jurisdiction of Texas courts over trusts has State . . . .” remained fairly constant since the passage of Section 115.001 of the Texas Trust Code, which became 2. County Courts at Law (Statutory County effective on January 1, 1984 and was based, in part, on Courts) Exercising Probate Jurisdiction the Uniform Probate Code. That is not to say that there (“CCLs”): have not been some changes, but these changes in trust jurisdiction have not been as substantive as those to 2.1. CCLs are courts created by the Texas estate jurisdiction (which, again, were not very Legislature. substantive to begin with). 2.2. Article V, Section 1 of the Texas The jurisdictional provisions of the TEC describe Constitution provides, in part, that “[t]he four different types of jurisdiction: Legislature may establish such other courts as it may deem necessary and 1. “Jurisdiction” is generally defined as prescribe the jurisdiction and “[a] court’s power to decide a case or organization thereof, and may conform issue a decree.” Black’s Law Dictionary the jurisdiction of the district and other (7th ed. 1999). inferior courts thereto.” 2. “Concurrent Jurisdiction” is generally 2.3. Texas Government Code Section defined as “[j]urisdiction exercised 25.0003(a) provides that “[a] statutory simultaneously by more than one court county court has jurisdiction over all over the same subject matter and within causes and proceedings, civil and the same territory, with the litigant criminal, original and appellate, having the right to choose the court in prescribed by law for county courts.” which to file the action.” Black’s Law 2.4. Texas Government Code Section Dictionary (7th ed. 1999). 25.0003(d) provides that “[e]xcept as 3. “Original Jurisdiction” is generally provided by Subsection (e), a statutory defined as “[a] court’s power to hear and county court has, concurrent with the decide a matter before any other court county court, the probate jurisdiction can review the matter.” Black’s Law provided by general law for county Dictionary (7th ed. 1999). courts.” 4. “Exclusive Jurisdiction” is generally 2.5. Texas Government Code Section defined as “[a] court’s power to 25.0003(e) provides that “[i]n a county adjudicate an action or class of actions to that has a statutory , a the exclusion of all other courts.” Black’s statutory probate court is the only county Law Dictionary (7th ed. 1999). court created by statute with probate jurisdiction.” In other words, if the This paper deals with the jurisdiction of four different county has a SPC, then any CCLs in that types of Texas courts: county lack probate jurisdiction. 2.6. Texas Government Code Section 1. Constitutional County Courts (“CCCs”): 25.0003(f) provides that “[a] statutory county court does not have the 1.1. There is a CCC for each of the 254 jurisdiction of a statutory probate court counties in Texas. Texas Constitution, granted statutory probate courts by the 1 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

Texas Probate Code.” Because the Texas There are two potential problems with these statutory Probate Code has been repealed, this definitions: section should be construed to apply to the Texas Estates Code. First, the Texas Probate Code was repealed 2.7. The legal jurisdiction of CCLs varies when the Texas Estates Code went into effect considerably and is established by the on January 1, 2014. Texas Estates Code statute that creates the particular CCL. Section 21.002(b) probably solves this The jurisdiction of statutorily created problem by providing that “[t]his code and the CCLs may be concurrent with the Texas Probate Code, as amended, shall be jurisdiction of the CCC and District considered one continuous statute, and for the Courts in the county. purposes of any instrument that refers to the 2.8. The judges of CCLs are required to be Texas Probate Code, this code shall be licensed attorneys. Tex. Gov’t Code considered an amendment to the Texas § 25.0014(3). Probate Code.”

3. Statutory Probate Courts (“SPCs”): Second, the definitions are circular: Section 25.0021(b) of the Texas Government Code 3.1. Article V, Section 1 of the Texas provides, in part, that “[a] statutory probate Constitution provides, in part, that “[t]he court as that term is defined in Section 3 (ii), Legislature may establish such other Texas Probate Code has certain jurisdiction. courts as it may deem necessary and Section 22.007(c) of the Texas Estates Code, prescribe the jurisdiction and on the other hand, defines a “Statutory Probate organization thereof, and may conform Court” as a court created by statute and the jurisdiction of the district and other designated as a statutory probate court under inferior courts thereto.” Chapter 25, Government Code. 3.2. TEC Section 22.007(c) defines a “Statutory Probate Court” as “a court 3.4. Texas has eighteen SPCs, which are located in the created by statute and designated as a ten following counties: statutory probate court under Chapter 25, Government Code. For the purposes of (1) Bexar County (two courts); this code, the term does not include a (2) Collin County (one court); county court at law exercising probate (3) Dallas County (three courts); jurisdiction unless the court is designated (4) Denton County (one court); as a statutory probate court under (5) El Paso County (one court); Chapter 25, Government Code.” (6) Galveston County (one court); 3.3. Texas Government Code Section (7) Harris County (four courts); 25.0021(b) provides, in part, that “[a] (8) Hidalgo County (one court); statutory probate court as that term is (9) Tarrant County (two courts); and defined in Section 3 (ii), Texas Probate (10) Travis County (one court). Code, has: 3.5. The judges of SPCs are required to be licensed (1) the general jurisdiction of a probate attorneys. Tex. Gov’t Code § 25.0014(3). court as provided by the Texas Probate Code; and 4. District Courts: (2) the jurisdiction provided by law for a county court to hear and determine 4.1. The District Court is the court of general actions, cases, matters, or jurisdiction in Texas. Texas Constitution, proceedings instituted under: Article V, Section 8 provides, in part, that “District Court jurisdiction consists of (A) Section 166.046, 192.027, exclusive, appellate, and original 193.007, 552.015, 552.019, jurisdiction of all actions, proceedings, 711.004, or 714.003, Health and remedies, except in cases where and Safety Code; exclusive, appellate, or original (B) Chapter 462, Health and Safety jurisdiction may be conferred by this Code; or Constitution or other law on some other (C) Subtitle C or D, Title 7, Health court, tribunal, or administrative body.” and Safety Code.” 2 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

4.2. The judges of District Courts are required 31.002 defines “a matter related to a to be licensed attorneys. Tex. Const. art. probate proceeding.” 5, § 7. 2.2.1. The jurisdiction conferred on courts by the TEC depends on whether the matters PART 1: PROBATE JURISDICTION before a given court are “probate 1. Definitions: proceedings” or “matters related to a probate proceeding.” 1.1. TEC Section 22.007(a) contains the 2.2.2. TEC Section 32.001(a) provides, in part, following definition of the word “Court”: that “[a]ll probate proceedings must be “(1) a county court in the exercise of its filed and heard in a court exercising probate jurisdiction; (2) a court created original probate jurisdiction.” (emphasis by statute and authorized to exercise added). original probate jurisdiction; and (3) a 2.2.3. Consequently, all “probate proceedings” district court exercising original probate (as defined by TEC Section 32.001) must jurisdiction in a contested matter.” be filed and heard in a court exercising 1.2. TEC Section 22.007(b) also provides that original probate jurisdiction. “[t]he terms ‘county court’ and ‘probate 2.2.4. TEC Section 32.001(a) further provides court” are synonymous and mean: (1) a that ”[t]he court exercising original county court in the exercise of its probate probate jurisdiction also has jurisdiction jurisdiction; (2) a court created by statute of all matters related to the probate and authorized to exercise original proceeding as specified in Section probate jurisdiction; and (3) a district 31.002 for that type of court.” (emphasis court exercising probate jurisdiction in a added). contested matter.” 2.2.5. Consequently, courts exercising original 1.3. TEC Section 22.029 states that “[t]he probate jurisdiction have jurisdiction terms ‘probate matter,’ ‘probate over “matters related to the probate proceedings,’ ‘proceedings in probate,’ proceeding” (as such term applies to the and ‘proceedings for probate’ are court), and that jurisdiction is not synonymous and include a matter or original jurisdiction. proceeding relating to a decedent’s 2.3. TEC Section 32.001(b) provides that “[a] estate.” probate court may exercise pendent and ancillary jurisdiction as necessary to 2. Preliminary Matters: promote judicial efficiency and economy.” 2.1. TEC, Chapter 32 deals with jurisdiction 2.3.1. Some courts and commentators argue and provides that all “probate that “pendent and ancillary” is merely proceedings” must be filed and heard in another way of saying “matters related to a court exercising original probate a probate [or guardianship] proceeding” jurisdiction. TEC § 32.001(a). It is the or “matters appertaining or incident to” author’s opinion that, in order for an estate (or guardianship). See Chapter 32 to confer jurisdiction, there Goodman v. Summit at W. Rim, Ltd., 952 must be a pending action that relates to S.W.2d 930, 933 (Tex. App.—Austin the administration of an estate. If there is 1997, no pet.) (“[T]he probate court may no estate administration pending, then only exercise ‘ancillary’ or ‘pendent’ TEC Chapter 32 does not apply. This is jurisdiction over a claim that bears some far more complicated that might initially relationship to the estate. Once the estate appear because attorneys in Texas settles, the claim is ‘ancillary’ or seldom formally close the administration ‘pendent’ to nothing, and the court is of an estate subject to independent without jurisdiction.”); § 14:9. Pendent administration. So, when actions are and ancillary jurisdiction, 2 Tex. Prac. brought years after administration is Guide Probate § 14:9 (“Pendent and granted, there is almost always a question ancillary jurisdiction is essentially on whether the estate remains under another name for what we now refer to as administration. a ‘matters related to a probate 2.2. TEC Section 31.001 defines the term proceeding’” or “’matters appertaining or “probate proceeding.” TEC Section incident to’ an estate or guardianship.”)

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2.3.2. Other courts disagree, holding that a If there is an express statute, such as the one for the court may exercise jurisdiction over complete heirship judgment, declaring the phase of the pendent and/or ancillary matters that are probate proceedings to be final and appealable, that unrelated to the underlying probate (or statute controls. Otherwise, if there is a proceeding of guardianship) proceeding so long as the which the order in question may logically be considered court’s exercise of pendent and ancillary a part, but one or more pleadings also part of that jurisdiction will promote judicial proceeding raise issues or parties not disposed of, then efficiency and economy. In re Estate of the probate order is interlocutory. Trevino, 195 S.W.3d 223, 229 (Tex. Id. (quoting Crowson v. Wakeham, 897 S.W.2d App.—San Antonio 2006, no pet.); 779, 783 (Tex. 1955)). Schuchmann v. Schuchmann, 193 S.W.3d 598, 603 (Tex. App.—Fort 2.4.5. Accordingly, if there is no express rule or Worth 2006, pet. denied); Sabine Gas statute that declares a particular probate Transmission Co. v. Winnie Pipeline Co., court order final and appealable, then the 15 S.W.3d 199, 201-02 (Tex. App.— De Ayala test is applied. Houston [14th Dist.] 2000, no pet.). 2.4.6. Parties may also need a severance order 2.3.3. The latter is likely the correct to eliminate ambiguities about whether interpretation because “pendent and an order is final and appealable under De ancillary jurisdiction” is in a subsection Ayala. De Ayala, 193 S.W.3d at 578. separate from the subsection addressing 2.5. TEC Section 32.001(d) provides that a court’s jurisdiction of “matters related “[t]he administration of the estate of a to” the probate (or guardianship) decedent, from the filing of the proceeding in both statutes (the probate application for probate and statute and the guardianship statute). administration, or for administration, TEC §§ 32.001(a)-(b), 1022.001(a)-(b). until the decree of final distribution and But this is not without limitation: courts the discharge of the last personal seem to agree that the pendent and/or representative, shall be considered as one ancillary matters must have at least some proceeding for purposes of jurisdiction. “close relationship” with the underlying The entire proceeding is a proceeding in probate (or guardianship) proceeding. rem.” Schuchmann, 193 S.W.3d at 603; Sabine Gas Transmission Co, 15 S.W.3d at 202. 3. Constitutional County Courts (“CCCs”): Just how close remains unclear. 2.4. TEC Section 32.001(c) provides that “[a] 3.1. In a county in which there is no SPC or final order issued by a probate court is CCL exercising original probate appealable to the court of appeals.” jurisdiction, the CCC has original 2.4.1. Generally, appeals are available only jurisdiction of probate proceedings. TEC from final judgments. This principal is § 32.002(a). In such a county, the CCC known as the “one final judgement” rule. also has original jurisdiction over matters De Ayala v. Mackie, 193 S.W.3d 575, related to a probate proceeding as 578 (Tex. 2006). specified by TEC Section 31.002. TEC 2.4.2. The administration of a decedent’s estate §§ 32.001(a), 31.002(a). is an ongoing process as opposed to an 3.2. Therefore, in a county in which there is independent event such as a personal no SPC or CCL exercising original injury lawsuit. In the administration of an probate jurisdiction, the CCC has estate, the court will frequently make original jurisdiction over the following numerous ongoing, interrelated, and matters: independent administrative decisions. 3.2.1. the probate of a will, with or without 2.4.3. Probate proceedings are an exception to administration of the estate (a Probate the one final judgment rule because Proceeding) (TEC §§ 31.001(1), probate proceedings routinely involve 32.002(a)); multiple final judgments. Id. Not every 3.2.2. the issuance of letters testamentary and probate order, however, is appealable. Id. of administration (a Probate Proceeding) 2.4.4. The Texas Supreme Court has adopted (TEC §§ 31.001(2), 32.002(a)); the following test for determining 3.2.3. an heirship determination or small estate whether there is appellate jurisdiction affidavit, community property over a particular probate court order: administration and homestead and family 4 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

allowances (a Probate Proceeding) (TEC 3.3. General Observations Regarding §§ 31.001(3), 32.002(a)); Removal of Contested Probate 3.2.4. an application, petition, motion, or action Proceedings from a CCC: regarding the probate of a will or an 3.3.1. The Texas Legislature believes that estate administration, including a claim every litigant should be entitled to have a for money owed by the decedent (a contested probate proceeding tried before Probate Proceeding) (TEC §§ 31.001(4), a judge who is a licensed attorney. CCC 32.002(a)); judges (as opposed to CCL judges, SPC 3.2.5. a claim arising from an estate judges, and District Court judges) are not administration and any action brought on required to be licensed attorneys. the claim (a Probate Proceeding) (TEC Consequently, the TEC contains §§ 31.001(5), 32.002(a)); provisions providing for the transfer of 3.2.6. the settling of a ’s contested probate proceedings from a account of an estate and any other matter CCC to a CCL exercising original related to the settlement, partition, or probate jurisdiction, SPC, or District distribution of an estate (a Probate Court. Proceeding) (TEC §§ 31.001(6), 32.002 3.3.2. If a “contested probate proceeding” is (a)); filed in a CCC, then either the CCC itself 3.2.7. a will construction suit (a Probate or any party to the proceeding may cause Proceeding) (TEC §§ 31.001(7), to have the contested probate proceeding 32.002(a)); transferred out of the CCC. 3.2.8. an action against a personal 3.3.3. But if the CCC judge and all parties representative or former personal agree, then a contested probate representative arising out of the proceeding may nevertheless be tried in representative’s performance of the the CCC. duties of a personal representative (a 3.3.4. A CCC judge is required, however, to Matter Related to Probate Proceeding) assign a contested probate proceeding on (TEC §§ 31.002(a)(1), 32.002(a), the motion of any party to the 32.001(a)); proceeding. 3.2.9. an action against a of a personal 3.3.5. A motion filed by any such party may representative or former personal designate whether the transfer is to be representative (a Matter Related to made to a SPC or a District Court. Probate Proceeding) (TEC 3.3.6. In counties in which there is no SPC, but §§ 31.002(a)(2), 32.002(a), 32.001(a)); in which there is a CCL exercising 3.2.10. a claim brought by a personal original probate jurisdiction, then the representative on behalf of an estate (a transfer may be made only to the CCL Matter Related to Probate Proceeding) (i.e., not to a District Court). (TEC §§ 31.002(a)(3), 32.002(a), 3.3.7. In certain circumstances, and only at the 32.001(a)); request of the judge of the CCC, the 3.2.11. an action brought against a personal entire probate proceeding—the contested representative in the representative’s and uncontested portions—may be as personal representative (a transferred to a SPC. Matter Related to Probate Proceeding) 3.3.8. In any event, once the contested probate (TEC §§ 31.002(a)(4), 32.002(a), proceeding is resolved, the SPC or the 32.001(a)); District Court must transfer the 3.2.12. an action for trial of title to real property proceeding back to the CCC. that is estate property, including 3.3.9. If an entire probate proceeding (rather enforcement of a lien against the property than only the contested portions thereof) (a Matter Related to Probate Proceeding) is transferred to the CCL, then there is no (TEC §§ 31.002(a)(5), 32.002(a), apparent requirement that the proceeding 32.001(a)); and be transferred back to the CCC. 3.2.13. an action for trial of the right of property 3.4. Contested Probate Proceedings in that is estate property (a Matter Related Counties with no SPC or CCL: to Probate Proceeding) (TEC §§ 3.4.1. TEC Section 32.003(a) provides that, in 31.002(a)(6), 32.002(a), 32.001(a)). a county in which there is no SPC or CCL exercising original probate jurisdiction, when a matter in a probate proceeding is 5 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

contested, the judge of the CCC may, on under TEC Section 32.003 before a the judge’s own motion, or shall, on the matter in the proceeding becomes motion of any party to the proceeding: (1) contested, and the motion is given effect request the assignment of a SPC judge to as a motion for assignment of a SPC hear the contested matter as provided by judge under TEC Section 32.003(a) if the Section 25.0022 of the Government matter later becomes contested. Code; or (2) transfer the contested matter 3.4.5. TEC Section 32.003(d) provides that, to the District Court, which may then notwithstanding any other law, a transfer hear the contested matter as if originally of a contested matter in a probate filed in the District Court. proceeding to a District Court under any 3.4.1.1. Texas Government Code Section authority other than the authority under 25.0022(h) provides that a judge or TEC Section 32.003: (1) is disregarded former or retired judge of a SPC may be for the purposes of TEC Section 32.003; assigned by the presiding judge of the and (2) does not defeat the right of a party SPCs to hold court in a SPC, a CCC, or to the proceeding to have the matter any CCL exercising probate jurisdiction assigned to a SPC judge in accordance when a CCC judge requests the with this TEC Section 32.003. assignment of a SPC judge to hear a 3.4.6. TEC Section 32.003(e) provides that a probate matter in the CCC. SPC judge assigned to a contested matter 3.4.1.2. Texas Government Code Section in a probate proceeding or to the entire 25.0022(n) provides that a judge who has proceeding under TEC Section 32.003 jurisdiction over a suit pending in one has the jurisdiction and authority granted county may, unless a party objects, to a SPC by the TEC. A SPC judge conduct any of the judicial proceedings assigned to hear only the contested except the trial on the merits in a different matters in a probate proceeding shall, on county. resolution of the matter, including any 3.4.1.3. While the TEC does not expressly deal appeal of the matter, return the matter to with this situation, it is apparent that, the CCC for further proceedings not once a probate proceeding ceases to be inconsistent with the orders of the SPC or contested, the assigned court loses court of appeals, as applicable. A SPC jurisdiction and must transfer the judge assigned to the entire proceeding as “contested matter” back to the CCC provided by TEC Section 32.003 (b-1) pursuant to TEC Section 32.003(e). shall, on resolution of the contested 3.4.2. TEC Section 32.003(b) provides that, if a matter in the proceeding, including any party to a probate proceeding files a appeal of the matter, return the entire motion for the assignment of a SPC judge proceeding to the CCC for further to hear a contested matter in the proceedings not inconsistent with the proceeding before the judge of the CCC orders of the SPC or court of appeals, as transfers the contested matter to a District applicable. Court under TEC Section 32.003, the 3.4.7. TEC Section 32.003(f) provides that a CCC judge shall grant the motion for District Court to which a contested assignment of a SPC judge and may not matter is transferred under TEC Section transfer the matter to the District Court 32.003 has the jurisdiction and authority unless the party withdraws the motion. granted to a SPC by the TEC. On 3.4.3. TEC Section 32.003(b-1) provides that, resolution of a contested matter if a judge of a CCC requests the transferred to the District Court under assignment of a SPC judge to hear a TEC Section 32.003, including any contested probate proceeding on the appeal of the matter, the District Court judge’s own motion or on the motion of shall return the matter to the CCC for a party to the proceeding as provided by further proceedings not inconsistent with TEC Section 32.003, the judge may the orders of the District Court or court request that the SPC judge be assigned to of appeals, as applicable. the entire proceeding on the judge’s own 3.4.8. TEC Section 32.003(g) provides that, if motion or on the motion of a party. only the contested matter in a probate 3.4.4. TEC Section 32.003(c) provides that a proceeding is assigned to a SPC judge party to a probate proceeding may file a under TEC Section 32.003, or if the motion for the assignment of a SPC judge contested matter in the probate 6 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

proceeding is transferred to a District under TEC Section 32.004 may hear the Court under TEC Section 32.003, the proceeding as if originally filed in that CCC shall continue to exercise court. If only a contested matter in the jurisdiction over the management of the proceeding is transferred, on the estate, other than a contested matter, until resolution of the matter, the matter shall final disposition of the contested matter be returned to the CCC for further is made in accordance with TEC Section proceedings not inconsistent with the 32.003. Any matter related to a probate orders of the CCL. proceeding in which a contested matter is transferred to a District Court may be 4. County Courts at Law (Statutory County brought in the District Court. The District Courts) Exercising Probate Jurisdiction Court in which a matter related to the (“CCLs”): proceeding is filed may, on its own motion or on the motion of any party, 4.1 In a county in which there is no SPC, but find that the matter is not a contested in which there is a CCL exercising matter and transfer the matter to the CCC original probate jurisdiction, the CCL with jurisdiction of the management of exercising original probate jurisdiction the estate. and the CCC have concurrent original 3.4.9. TEC Section 32.003(h) provides that, if a jurisdiction of probate proceedings, contested matter in a probate proceeding unless otherwise provided by law. The is transferred to a District Court under judge of a CCC may hear probate TEC Section 32.003, the District Court proceedings while sitting for the judge of has jurisdiction of any contested matter any other county court. TEC § 32.002(b). in the proceeding that is subsequently In such a county, the CCC and CCL also filed, and the CCC shall transfer those have concurrent original jurisdiction over contested matters to the District Court. If matters related to a probate proceeding as a SPC judge is assigned under TEC specified by TEC Section 31.002. TEC Section 32.003 to hear a contested matter §§ 32.001(a), 31.002(a)-(b). in a probate proceeding, the SPC judge 4.2 Therefore, in a county in which there is shall be assigned to hear any contested no SPC, but in which there is a CCL matter in the proceeding that is exercising original probate jurisdiction, subsequently filed. the CCL has original jurisdiction 3.4.10. TEC Section 32.003(i) provides that the concurrent with the CCC over the clerk of a District Court to which a following matters: contested matter in a probate proceeding 4.2.1 the probate of a will, with or without is transferred under TEC Section 32.003 administration of the estate (a Probate may perform in relation to the contested Proceeding) (TEC §§ 31.001(1), matter any function a county clerk may 32.002(b)); perform with respect to that type of 4.2.2 the issuance of letters testamentary and matter. of administration (a Probate Proceeding) 3.5. Contested Probate Proceedings in (TEC §§ 31.001(2), 32.002 (b)); Counties with a CCL but no SPC: 4.2.3 an heirship determination or small estate 3.5.1. TEC Section 32.004(a) provides that, in affidavit, community property a county in which there is no SPC, but in administration, and homestead and which there is a CCL exercising original family allowances (a Probate probate jurisdiction, when a matter in a Proceeding) (TEC §§ 31.001(3), probate proceeding is contested, the 32.002(b)); judge of the CCC may, on the judge’s 4.2.4 an application, petition, motion, or action own motion, or shall, on the motion of regarding the probate of a will or an any party to the proceeding, transfer the estate administration, including a claim contested matter to the CCL. In addition, for money owed by the decedent (a the judge of the CCC, on the judge’s own Probate Proceeding) (TEC §§ 31.001(4), motion, or on the motion of any party to 32.002(b)); the proceeding, may transfer the entire 4.2.5 a claim arising from an estate proceeding to the CCL. administration and any action brought on 3.5.2. TEC Section 32.004(b) provides that a the claim (a Probate Proceeding) (TEC CCL to which a proceeding is transferred §§ 31.001(5), 32.002(b)); 7 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

4.2.6 the settling of a personal representative’s in the court (a Matter Related to Probate account of an estate and any other matter Proceeding) (TEC §§ 31.002(b)(3), related to the settlement, partition, or 32.002(b), 32.001(a)). distribution of an estate (a Probate 4.2.15.1 Again, the term “interpretation and Proceeding) (TEC §§ 31.001(6), administration” of an inter vivos trust is 32.002(b)); a fairly narrow definition and may or may 4.2.7 a will construction suit (a Probate not include breach-of-fiduciary-duty Proceeding) (TEC §§ 31.001(7), claims against a trustee. 32.002(b)); 4.2.8 an action against a personal 5. Statutory Probate Courts (“SPCs”): representative or former personal representative arising out of the 5.1. In a county in which there is a SPC, the representative’s performance of the SPC has original jurisdiction of probate duties of a personal representative (a proceedings. TEC § 32.002(c). Matter Related to Probate Proceeding) 5.2. Further, in a county in which there is a (TEC §§ 31.002(a)(1); 32.002(b), SPC, the SPC has exclusive jurisdiction 32.001(a)); of all probate proceedings, regardless of 4.2.9 an action against a surety of a personal whether the proceeding is contested or representative or former personal uncontested. TEC § 32.005(a). In such a representative (a Matter Related to county, a cause of action related to the Probate Proceeding) (TEC probate proceeding must also be brought §§ 31.002(a)(2), 32.002(a), 32.00(b)); in the SPC unless the jurisdiction of the 4.2.10 a claim brought by a personal SPC is concurrent with the jurisdiction of representative on behalf of an estate (a a District Court as provided by TEC Matter Related to Probate Proceeding) Section 32.007 or with the jurisdiction of (TEC §§ 31.002(a)(3), 32.002(b), any other court. TEC § 32.005(a). 32.001(a)); 5.3. TEC Section 32.005(a) is construed in 4.2.11 an action brought against a personal conjunction and in harmony with TEC representative in the representative’s Chapter 401, TEC Section 402.001, and capacity as personal representative (a a number of other sections of the TEC Matter Related to Probate Proceeding) relating to independent . TEC (TEC §§ 31.002(a)(4), 32.002(b), § 32.005(b). But Section 32.005(a) may 32.001(a)); not be construed to expand a court’s 4.2.12 an action for trial of title to real property control over an independent . that is estate property, including TEC § 32.005(b). enforcement of a lien against the property 5.4. Therefore, in a county in which there is a (a Matter Related to Probate Proceeding) SPC, the SPC has original jurisdiction (TEC §§ 31.002(a)(5), 32.002(b), (either exclusive or not—see TEC 32.001(a)); Section 32.005(a)) over the following 4.2.13 an action for trial of the right of property matters: that is estate property (a Matter Related 5.4.1. the probate of a will, with or without to Probate Proceeding) (TEC administration of the estate (a Probate §§ 31.002(a)(6), 32.002(b), 32.001(a)); Proceeding) (TEC §§ 31.001(1), 4.2.14 the interpretation and administration of a 32.002(c)); if the will creating the 5.4.2. the issuance of letters testamentary and trust has been admitted to probate in the of administration (a Probate Proceeding) court (a Matter Related to Probate (TEC §§ 31.001(2), 32.002(c)); Proceeding) (TEC §§ 31.002(b)(2), 5.4.3. an heirship determination or small estate 32.002(b), 32.001(a)); and affidavit, community property 4.2.14.1 [Note that the term “interpretation and administration and homestead and family administration” of a testamentary trust is allowances (a Probate Proceeding) (TEC a fairly narrow definition and may or may §§ 31.001(3), 32.002(c)); not include breach-of-fiduciary-duty 5.4.4. an application, petition, motion, or action claims against a trustee.] regarding the probate of a will or an 4.2.15 the interpretation and administration of estate administration, including a claim an inter vivos trust created by a decedent for money owed by the decedent (a whose will has been admitted to probate 8 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

Probate Proceeding) (TEC §§ 31.001(4), whose will has been admitted to probate 32.002(c)); in the court (a Matter Related to Probate 5.4.5. a claim arising from an estate Proceeding) (TEC §§ 31.002(b)(2), administration and any action brought on 32.002(b), 32.001(a)); and the claim (a Probate Proceeding) (TEC 5.4.16. any cause of action in which a personal §§ 31.001(5), 32.002(c)); representative of an estate pending in the 5.4.6. the settling of a personal representative’s SPC is a party in the representative’s account of an estate and any other matter capacity as a personal representative (a related to the settlement, partition, or Matter Related to Probate Proceeding) distribution of an estate (a Probate (TEC §§ 31.002(c)(2), 32.002(b), Proceeding) (TEC §§ 31.001(6), 32.001(a)). 32.002(c)); 5.5. The SPC also has jurisdiction over the 5.4.7. a will construction suit (a Probate following matters: Proceeding) (TEC §§ 31.001(7), 5.5.1. an action by or against a trustee (TEC 32.002(c)); § 32.006(1)); 5.4.8. an action against a personal 5.5.2. an action involving an inter vivos trust, representative or former personal testamentary trust, or charitable trust representative arising out of the (TEC § 32.006(2)); representative’s performance of the 5.5.3. an action by or against an agent or former duties of a personal representative (a agent under a power of attorney arising Matter Related to Probate Proceeding) out of the agent’s performance of the (TEC §§ 31.002(1), 32.002(c), duties of an agent (TEC § 32.006(3)); and 32.001(a)); 5.5.4. an action to determine the validity of a 5.4.9. an action against a surety of a personal power of attorney or to determine the representative or former personal agent’s rights, powers, or duties under a representative (a Matter Related to power of attorney (TEC § 32.006(4)). Probate Proceeding) (TEC §§ 31.002(2), 5.6. The SPC also has concurrent jurisdiction 32.002(c), 32.001(b)); with a District Court over the following 5.4.10. a claim brought by a personal matters: representative on behalf of an estate (a 5.6.1. a personal injury, survival, or wrongful Matter Related to Probate Proceeding) death action by or against a person in the (TEC §§ 31.002(3), 32.002(c), person’s capacity as a personal 32.001(a)); representative (TEC § 32.007(1)); 5.4.11. an action brought against a personal 5.6.2. an action by or against a trustee (TEC representative in the representative’s § 32.007(2)); capacity as personal representative (a 5.6.3. an action involving an inter vivos trust, Matter Related to Probate Proceeding) testamentary trust, or charitable trust, (TEC §§ 31.002(4), 32.002(c), including a charitable trust as defined by 32.001(a)); Texas Property Code Section 123.001 5.4.12. an action for trial of title to real property (TEC § 32.007(3)); that is estate property, including 5.6.4. an action involving a personal enforcement of a lien against the property representative of an estate in which each (a Matter Related to Probate Proceeding) other party aligned with the personal (TEC §§ 31.002(5), 32.002(c), representative is not an interested person 32.001(a)); in that estate (TEC § 32.007(4)); 5.4.13. an action for trial of the right of property 5.6.5. an action against an agent or former agent that is estate property (a Matter Related under a power of attorney arising out of to Probate Proceeding) (TEC the agent’s performance of the duties of §§ 31.002(5), 32.002(c), 32.001(a)); an agent (TEC § 32.007(5)); and 5.4.14. the interpretation and administration of a 5.6.6. an action to determine the validity of a testamentary trust if the will creating the power of attorney or to determine an trust has been admitted to probate in the agent’s rights, powers, or duties under a court (a Matter Related to Probate power of attorney (TEC § 32.007(6)). Proceeding) (TEC §§ 31.002(b)(2), 5.7. TEC Section 34.001 deals with a SPC’s 32.002(b), 32.001(a)); ability to transfer certain proceedings 5.4.15. the interpretation and administration of related to probate proceeding. an inter vivos trust created by a decedent 9 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

5.7.1. TEC Section 34.001(a) provides that “[a] writs, bonds, recognizances, or judge of a statutory probate court, on the other obligations issued from the motion of a party to the action or on the statutory probate court are motion of a person interested in the returnable to the court to which the estate, may transfer to the judge’s court cause of action is transferred as if from a district, county, or statutory court originally issued by that court. The a cause of action related to a probate obligees in all bonds and proceeding pending in the statutory recognizances taken in and for the probate court or a cause of action in statutory probate court, and all which a personal representative of an witnesses summoned to appear in estate pending in the statutory probate the statutory probate court, are court is a party and may consolidate the required to appear before the court transferred cause of action with the other to which the cause of action is proceedings in the statutory probate court transferred as if originally required relating to that estate.” to appear before the court to which 5.8. Texas Government Code Section the transfer is made. 25.00222 deals with the transfer of cases by a SPC judge and provides that: 5.9. Texas Government Code Section 25.0026 provides that: (a) The judge of a statutory probate court may transfer a cause of action (a) A statutory probate court or its judge pending in that court to another may issue writs of injunction, statutory probate court in the same mandamus, sequestration, county that has jurisdiction over the attachment, garnishment, certiorari, cause of action that is transferred. supersedeas, and all writs necessary (b) If the judge of a statutory probate for the enforcement of the court that has jurisdiction over a jurisdiction of the court. It may issue cause of action appertaining to or writs of habeas corpus in cases in incident to an estate pending in the cases in which the offense charged statutory probate court determines is within the jurisdiction of the court that the court no longer has or any court of inferior jurisdiction jurisdiction over the cause of action, in the county. the judge may transfer that cause of (b) A statutory probate court or its judge action to: may punish for contempt as prescribed by general law. (1) a district court, county court, (c) The judge of a statutory probate statutory county court, or court has all other powers, duties, justice court located in the immunities, and privileges provided same county that has by law for county court judges. jurisdiction over the cause of (d) The judge of a statutory probate action that is transferred; or court has no authority over the (2) the court from which the cause county’s administrative business of action was transferred to the that is performed by the county statutory probate court under judge. Section 5B or 608, Texas Probate Code. [Note that both 6. District Courts: of these sections have been repealed by the TEC. Section 6.1. A District Court does not have original 5B has been replaced by TEC probate jurisdiction over “probate Section 304.001, and Section proceedings” or “matters related to 608 has been replaced by TEC probate proceedings” (save and except Section 1022.107. for its jurisdiction over trusts). It only has jurisdiction to hear a contested probate (c) When a cause of action is proceeding that has been transferred to it. transferred from a statutory probate When a transfer occurs, the District court to another court as provided by Court has the jurisdiction of a SPC. TEC Subsection (a) or (b), all processes, § 32.003(f). On resolution of a contested 10 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

matter transferred to the District Court, proceeding is pending, then TEC Chapter the District Court shall return the matter 1021 does not apply. to the CCC for further proceedings not 2.2. TEC Section 1002.015 defines the term inconsistent with the orders of the “guardianship proceeding.” TEC Section District Court or court of appeals, as 1021.001 defines the term “a matter applicable. Id. related to a guardianship proceeding.” 2.2.1. The jurisdiction conferred on courts by PART 2: GUARDIANSHIP JURISDICTION the TEC depends on whether the matters 1. Definitions: before a given court are “guardianship proceedings” or “matters related to a 1.1. TEC Section 1002.008 contains the guardianship proceeding.” following definition of “Court”: “(1) a 2.2.2. TEC Section 1022.001(a) provides that county court exercising its probate “[a]ll guardianship proceedings must be jurisdiction; (2) a court created by statute filed and heard in a court exercising and authorized to exercise original original probate jurisdiction.” (emphasis probate jurisdiction; or (3) a district court added). exercising original probate jurisdiction 2.2.3. Consequently, all “guardianship over a contested matter. (b) ‘Statutory proceedings” (as defined in TEC Section probate court’ means a court created by 1002.015) must be filed and heard in a statute and designated as a statutory court exercising original probate probate court under Chapter 25, jurisdiction. (See Part 1, supra) Government Code. The term does not 2.2.4. TEC Section 1022.001(a) further include a county court at law exercising provides that “[t]he court exercising probate jurisdiction unless the court is original probate jurisdiction also has designated as a statutory probate court jurisdiction of all matters related to the under Chapter 25, Government Code.” guardianship proceeding as specified in 1.2. TEC Section 1002.015 contains the Section 1021 for that type of court.” following definition of “Guardianship (emphasis added). Proceeding”: “[a] matter or proceeding 2.2.5. Consequently, courts exercising original related to a guardianship or any other probate jurisdiction have jurisdiction matter covered by this title, including: (1) over “guardianship proceedings” and the appointment of a guardian of a minor “matters related to the guardianship or other incapacitated person, including proceeding” (as such terms apply to the an incapacitated adult for whom another court), and that jurisdiction is not original court obtained continuing, exclusive jurisdiction. jurisdiction in a suit affecting the parent- 2.3. TEC Section 1022.001(b) provides that child relationship when the person was a “[a] probate court may exercise pendent child; (2) an application, petition, or and ancillary jurisdiction as necessary to motion regarding guardianship or a promote judicial efficiency and substitute for guardianship under this economy.” See discussion of TEC title; (3) a mental health action; and (4) Sections 32.001(b) and 1022.001(b) in an application, petition, or motion Part 1, supra. regarding a trust created under Chapter 2.4. TEC Section 1022.001(c) provides that 1301.” “[a] final order issued by a probate court is appealable to the court of appeals.” See 2. Preliminary Matters: discussion of TEC Section 32.001(c) in Part 1, supra. 2.1. TEC, Chapter 1021 deals with 2.5. TEC Section 1022.002(d) provides that jurisdiction and provides that all “[f]rom the filing of the application for “guardianship proceedings” must be filed the appointment of a guardian of the and heard in a court exercising original estate or person, or both, until the probate jurisdiction. TEC § 1022.001(a). guardianship is settled and closed under It is the author’s opinion that, in order for this chapter, the administration of the Chapter 1021 to confer jurisdiction, there estate of a minor or other incapacitated must be a pending guardianship person is one proceeding for the purposes proceeding pending. If no guardianship of jurisdiction and is a proceeding in rem.” 11 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

3. Constitutional County Courts (“CCCs”): against the property (a Matter Related to Guardianship Proceeding) (TEC 3.1. In a county in which there is no SPC or §§ 1021.001(a)(4), 1022.001(a)); CCL exercising original probate 3.2.9. an action for trial of the right of property jurisdiction, the CCC has original that is guardianship estate property (a jurisdiction of guardianship proceedings. Matter Related to Guardianship TEC § 1022.002(a). In such a county, the Proceeding) (TEC §§ 1021.001(a)(5), CCC also has original jurisdiction over 1022.001(a)); matters related to a guardianship 3.2.10. after a guardianship of the estate of a proceeding as specified by TEC ward is required to be settled as provided 1021.001. TEC §§ 1022.001(a), by TEC Section 1204.001: 1021.001(a). 3.2.10.1. an action brought by or on behalf of the 3.2. Therefore, in a county in which there is former ward against a former guardian of no SPC or CCL exercising original the ward for alleged misconduct arising probate jurisdiction, the CCC has from the performance of the person’s original jurisdiction over the following duties as guardian (a Matter Related to matters: Guardianship Proceeding) (TEC 3.2.1. the appointment of a guardian of a minor §§ 1021.001(a)(6)(A), 1022.001(a)); or other incapacitated person, including 3.2.10.2. an action calling on the surety of a an incapacitated adult for whom another guardian or former guardian to perform court obtained continuing, exclusive in place of the guardian or former jurisdiction in a suit affecting the parent- guardian, which may include the award child relationship when the person was a of a judgment against the guardian or child (a Guardianship Proceeding) (TEC former guardian in favor of the surety (a §§ 1022.002(a), 1022.001(a), Matter Related to Guardianship 1002.015(1)); Proceeding) (TEC §§ 1021.001(a)(6)(B), 3.2.2. an application, petition, or motion 1022.001(a)); regarding guardianship or a substitute for 3.2.10.3. an action against a former guardian or the guardianship under this title (a former ward that is brought by a surety Guardianship Proceeding) (TEC that is called on to perform in place of the §§ 1022.002(a), 1022.001(a), former guardian (a Matter Related to 1002.015(2)); Guardianship Proceeding) (TEC 3.2.3. a mental health action (a Guardianship §§ 1021.001(a)(6)(C), 1022.001(a)); Proceeding) (TEC §§ 1022.002(a), 3.2.10.4. a claim for the payment of compensation, 1022.001(a), 1002.015(3)); expenses, and court costs, and any other 3.2.4. an application, petition, or motion matter authorized under Chapter 1155 (a regarding a trust created under Chapter Matter Related to Guardianship 1301 (a Guardianship Proceeding) (TEC Proceeding) (TEC §§ 1021.001(a)(6)(D), §§ 1022.002(a), 1022.001(a), 1022.001(a)); and 1002.015(4)); 3.2.10.5. a matter related to an authorization made 3.2.5. the granting of letters of guardianship (a or duty performed by a guardian under Matter Related to Guardianship Chapter 1204 (a Matter Related to Proceeding) (TEC §§ 1021.001(a)(1), Guardianship Proceeding) (TEC 1022.001(a)); §§ 1021.001(a)(6)(E), 1022.001(a)); and 3.2.6. the settling of the account of a guardian 3.2.11. the appointment of a trustee for a trust and all other matters relating to the created under Section 1301.053 or settlement, partition, or distribution of a 1301.054, the settling of an account of ward’s estate (a Matter Related to the trustee, and all other matters relating Guardianship Proceeding) (TEC to the trust. (a Matter Related to §§ 1021.001(a)(2), 1022.001(a)); Guardianship Proceeding) (TEC 3.2.7. a claim brought by or against a §§ 1021.001(a)(7), 1022.001(a)). guardianship estate (a Matter Related to 3.3. General Observations Regarding the Guardianship Proceeding) (TEC Removal of Contested Guardianship §§ 1021.001(a)(3), 1022.001(a)); Proceedings from a CCC: 3.2.8. an action for trial of title to real property 3.3.1. The Texas Legislature believes that that is guardianship estate property, every litigant should be entitled to have a including the enforcement of a lien contested guardianship proceeding tried 12 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

before a judge who is a licensed attorney. 3.4.1. TEC Section 1022.003(a) provides that, CCC judges (as opposed to CCL judges, in a county in which there is no SPC or SPC judges, and District Court judges) CCL exercising original probate are not required to be licensed attorneys. jurisdiction, when a matter in a Consequently, the TEC contains guardianship proceeding is contested, the provisions providing for the transfer of judge of the CCC may, on the judge’s contested guardianship proceedings from own motion, or shall, on the motion of a CCC to a CCL exercising probate any party to the proceeding: (1) request jurisdiction, a SPC, or a District Court. the assignment of a SPC judge to hear the 3.3.2. If a “contested guardianship proceeding” contested matter as provided by Section is filed in a CCC in a county in which 25.0022 of the Government Code; or (2) there is no SPC or CCL exercising transfer the contested matter to the original probate jurisdiction, then either District Court, which may then hear the the CCC judge, or any party to the contested matter as if originally filed in proceeding, may cause to have the the District Court. “contested guardianship proceeding” 3.4.1.1. Texas Government Code Section (rather than the entire proceeding) 25.0022(h) provides that a judge or transferred out of the CCC to either a former or retired judge of a SPC may be District Court or a SPC. assigned by the presiding judge of the 3.3.3. Notwithstanding this fact, if the CCC SPCs to hold court in a SPC, a CCC, or judge and all parties agree, then the any CCL exercising probate jurisdiction contested probate proceeding may be when a CCC judge requests the tried in the CCC. assignment of a SPC judge to hear a 3.3.4. A CCC judge is required, however, to probate matter in the CCC. assign the “contested guardianship 3.4.1.2. Texas Government Code Section proceeding” to a SPC (rather than to a 25.0022(n) provides that a judge who has District Court) on the motion of any party jurisdiction over a suit pending in one to the proceeding. county may, unless a party objects, 3.3.5. If the CCC judge or any party to the conduct any of the judicial proceedings proceeding requests assignment of a SPC except the trial on the merits in a different judge to hear a “contested guardianship county. matter,” then the CCC judge may also 3.4.1.3. While the TEC does not expressly deal request that the SPC be assigned the with this situation, it is apparent that, “entire guardianship proceeding” (rather once a guardianship proceeding ceases to than only the contested portions of the be contested, the assigned court loses guardianship proceeding). jurisdiction and must transfer the 3.3.6. In counties where there is no SPC, but in “contested matter” back to the CCC which there is a CCL exercising original pursuant to TEC Section 32.003(e). probate jurisdiction, then the transfer 3.4.2. TEC Section 1022.003(b) provides that, may be made only to the CCL (i.e., not to if a party to a guardianship proceeding a District Court). files a motion for the assignment of a 3.3.7. If there is a SPC in the county, then the SPC judge to hear a contested matter in SPC has exclusive jurisdiction of all the proceeding before the judge of the guardianship proceedings, regardless of CCC transfers the contested matter to a whether they are contested. District Court under TEC Section 3.3.8. In certain circumstances, and only at the 32.003, the CCC judge shall grant the request of the judge of the CCC, the motion for assignment of a SPC judge entire guardianship proceeding—the and may not transfer the matter to the contested and uncontested portions— District Court unless the party withdraws may be transferred to a SPC pending the motion. resolution of the contested guardianship 3.4.3. TEC Section 1022.003(c) provides that, proceeding. In any event, once the if a judge of a CCC requests the contested guardianship proceeding is assignment of a SPC judge to hear a resolved, the SPC must transfer the contested guardianship proceeding on the proceeding back to the CCC. judge’s own motion or on the motion of 3.4. Contested Guardianship Proceedings in a party to the proceeding as provided by Counties with no SPC or CCL: TEC Section 1022.003, the judge may 13 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

request that the SPC judge be assigned to the orders of the District Court or court the entire proceeding on the judge’s own of appeals, as applicable. motion or on the motion of a party. 3.4.8. TEC Section 1022.003(h) provides that, 3.4.4. TEC Section 1022.003(d) provides that a if only the contested matter in a party to a guardianship proceeding may guardianship proceeding is assigned to a file a motion for the assignment of a SPC SPC judge under TEC Section 1022.003, judge under TEC Section 1022.003 or if the contested matter in the before a matter in the proceeding guardianship proceeding is transferred to becomes contested, and the motion is a District Court under TEC Section given effect as a motion for assignment 1022.003, the CCC shall continue to of a SPC judge under TEC Section exercise jurisdiction over the 1022.003(a) if the matter later becomes management of the guardianship, other contested. than a contested matter, until final 3.4.5. TEC Section 1022.003(e) provides that, disposition of the contested matter is notwithstanding any other law, a transfer made in accordance with TEC Section of a contested matter in a guardianship 1022.003. Any matter related to a proceeding to a District Court under any guardianship proceeding in which a authority other than the authority under contested matter is transferred to a TEC Section 1022.003: (1) is disregarded District Court may be brought in the for the purposes of TEC Section District Court. The District Court in 1022.003; and (2) does not defeat the which a matter related to the proceeding right of a party to the proceeding to have is filed may, on its own motion or on the the matter assigned to a SPC judge in motion of any party, find that the matter accordance with TEC Section 1022.003. is not a contested matter and transfer the 3.4.6. TEC Section 1022.003(f) provides that a matter to the CCC with jurisdiction of SPC judge assigned to a contested matter management of the guardianship. in a guardianship proceeding or to the 3.4.9. TEC Section 1022.003(i) provides that, if entire proceeding under TEC Section a contested matter in a guardianship 1022.003 has the jurisdiction and proceeding is transferred to a District authority granted to a SPC by the TEC. A Court under TEC Section 1022.003, the SPC judge assigned to hear only the District Court has jurisdiction of any contested matters in a guardianship contested matter in the proceeding that is proceeding shall, on resolution of the subsequently filed, and the CCC shall matter, including any appeal of the transfer those contested matters to the matter, return the matter to the CCC for District Court. If a SPC judge is assigned further proceedings not inconsistent with under TEC Section 1022.003 to hear a the orders of the SPC or court of appeals, contested matter in a guardianship as applicable. A SPC judge assigned to proceeding, the SPC judge shall be the entire proceeding as provided by TEC assigned to hear any contested matter in Section 1022.003(c) shall, on resolution the proceeding that is subsequently filed. of the contested matter in the proceeding, 3.4.10. TEC Section 1022.003(j) provides that including any appeal of the matter, return the clerk of a District Court to which a the entire proceeding to the CCC for contested matter in a guardianship further proceedings not inconsistent with proceeding is transferred under TEC the orders of the SPC or court of appeals, Section 1022.003 may perform in as applicable. relation to the transferred matter any 3.4.7. TEC Section 1022.003(g) provides that a function a county clerk may perform with District Court to which a contested respect to that type of matter. matter is transferred under TEC Section 3.5. Contested Guardianship Proceedings in 1022.003 has the jurisdiction and Counties with a CCL but no SPC: authority granted to a SPC by the TEC. 3.5.1. TEC Section 1022.004(a) provides that, On resolution of a contested matter in a county in which there is no SPC, but transferred to the District Court under in which there is a CCL exercising TEC Section 1022.003, including any original probate jurisdiction, when a appeal of the matter, the District Court matter in a guardianship proceeding is shall return the matter to the CCC for contested, the judge of the CCC may, on further proceedings not inconsistent with the judge’s own motion, or shall, on the 14 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

motion of any party to the proceeding, § 1022.002(b). In such a county, the CCC transfer the contested matter to the CCL. and CCL also have concurrent original In addition, the judge of the CCC, on the jurisdiction over matters related to a judge’s own motion or on the motion of guardianship proceeding as specified by any party to the proceeding, may transfer TEC 1021.001. TEC §§ 1022.001(a), the entire proceeding to the CCL. 1021.001(a). 3.5.2. TEC Section 1022.004(b) provides that a 4.2. Therefore, in a county in which there is CCL to which a proceeding is transferred no SPC, but in which there is a CCL under TEC Section 1022.004 may hear exercising original probate jurisdiction, the proceeding as if originally filed in the CCL has original jurisdiction that court. If only a contested matter in concurrent with the CCC over the the proceeding is transferred, on the following matters: resolution of the matter, the matter shall 4.2.1. the appointment of a guardian of a minor be returned to the CCC for further or other incapacitated person, including proceedings not inconsistent with the an incapacitated adult for whom another orders of the CCL. court obtained continuing, exclusive 3.6. Contested Guardianship Proceedings in jurisdiction in a suit affecting the parent- Counties with a SPC: child relationship when the person was a 3.7. TEC Section 1022.005(a) provides that, child (a Guardianship Proceeding) (TEC in a county in which there is a SPC, the §§ 1022.002(b), 1002.015(1)); SPC has exclusive jurisdiction of all 4.2.2. an application, petition, or motion guardianship proceedings, regardless of regarding guardianship or a substitute for whether the proceeding is contested or guardianship under Title 3 of the TEC (a uncontested. Guardianship Proceeding) (TEC 3.8. TEC Section 1022.005(b) provides that a §§ 1022.002(b), 1002.015(2)); cause of action related to a guardianship 4.2.3. a mental health action (a Guardianship proceeding of which the SPC has Proceeding) (TEC §§ 1022.002(b), exclusive jurisdiction as provided by 1002.015(3)); TEC Section 1022.005(a) must be 4.2.4. an application, petition, or motion brought in the SPC unless the jurisdiction regarding a trust created under Chapter of the SPC is concurrent with the 1301 of the TEC (a Guardianship jurisdiction of a District Court as Proceeding) (TEC §§ 1022.002(b), provided by TEC Section 1022.006 or 1002.015(4)); with the jurisdiction of any other court. 4.2.5. the granting of letters of guardianship (a 3.9. TEC Section 1022.006 provides that a Matter Related to Guardianship SPC has concurrent jurisdiction with the Proceeding) (TEC §§ 1021.001(a)(1), District Court in: (1) a personal injury, 1022.001(a)); survival, or wrongful death action by or 4.2.6. the settling of the account of a guardian against a person in the person’s capacity and all other matters relating to the as a guardian; and (2) an action involving settlement, partition, or distribution of a a guardian in which each other party ward’s estate (a Matter Related to aligned with the guardian is not an Guardianship Proceeding) (TEC interested person; in the guardianship. §§ 1021.001(a)(2), 1022.001(a)); 4.2.7. a claim brought by or against a 4. County Courts at Law (Statutory County guardianship estate (a Matter Related to Courts) Exercising Probate Jurisdiction Guardianship Proceeding) (TEC (“CCLs”): §§ 1021.001(a)(3), 1022.001(a)); 4.2.8. an action for trial of title to real property 4.1. In a county in which there is no SPC, but that is guardianship estate property, in which there is a CCL exercising including the enforcement of a lien original probate jurisdiction, the CCL against the property (a Matter Related to and the CCC have concurrent original Guardianship Proceeding) (TEC jurisdiction of guardianship proceedings, §§ 1021.001(a)(4), 1022.001(a)); unless otherwise provided by law. The 4.2.9. an action for trial of the right of property judge of a CCC may hear guardianship that is guardianship estate property (a proceedings while sitting for the judge of Matter Related to Guardianship any other county court. TEC 15 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

Proceeding) (TEC §§ 1021.001(a)(5), § 1022.005(a). In such a county, a cause 1022.001(a)); of action related to a guardianship 4.2.10. after a guardianship of the estate of a proceeding of which the SPC has ward is required to be settled as provided exclusive jurisdiction as provided by by TEC Section 1204.001: TEC Section 1022.005(a) must be 4.2.10.1. an action brought by or on behalf of the brought in the SPC unless the jurisdiction former ward against a former guardian of of the SPC is concurrent with the the ward for alleged misconduct arising jurisdiction of a District Court as from the performance of the person’s provided by TEC Section 1022.006 or duties as guardian (a Matter Related to with the jurisdiction of any other court. Guardianship Proceeding) (TEC TEC § 1022.005(b). §§ 1021.001(a)(6)(A), 1022.001(a)); 5.3. TEC Section 1022.006 provides that a 4.2.10.2. an action calling on the surety of a SPC has concurrent jurisdiction with the guardian or former guardian to perform District Court in: (1) a personal injury, in place of the guardian or former survival, or wrongful death action by or guardian, which may include the award against a person in the person’s capacity of a judgment against the guardian or as a guardian; and (2) an action involving former guardian in favor of the surety (a a guardian in which each other party Matter Related to Guardianship aligned with the guardian is not an Proceeding) (TEC §§ 1021.001(a)(6)(B). interested person in the guardianship. 1022.001(a)); 5.4. Therefore, without in any way limiting 4.2.10.3. an action against a former guardian of the the generality of the foregoing former ward that is brought by a surety provisions, in a county in which there is that is called on to perform in place of the a SPC, the SPC has exclusive jurisdiction former guardian (a Matter Related to over the following matters: Guardianship Proceeding) (TEC 5.4.1. the appointment of a guardian of a minor §§ 1021.001(a)(6)(C), 1022.001(a)); or other incapacitated person, including 4.2.10.4. a claim for the payment of compensation, an incapacitated adult for whom another expenses, and court costs, and any other court obtained continuing, exclusive matter authorized under Chapter 1155 of jurisdiction in a suit affecting the parent- the TEC (a Matter Related to child relationship when the person was a Guardianship Proceeding) (TEC child (a Guardianship Proceeding) (TEC §§ 1021.001(a)(6)(D), 1022.001(a)); and §§ 1022.005(a), 1002.015(1)); 4.2.10.5. a matter related to an authorization made 5.4.2. an application, petition, or motion or duty performed by a guardian under regarding guardianship or a substitute for Chapter 1204 (a Matter Related to guardianship under this Title 3 of the Guardianship Proceeding) (TEC TEC (a Guardianship Proceeding) (TEC §§ 1021.001(a)(6)(E), 1022.001(a)); and §§ 1022.005(a), 1002.015(2)); 4.2.11. the appointment of a trustee for a trust 5.4.3. a mental health action (a Guardianship created under Section 1301.053 or Proceeding) (TEC §§ 1022.005(a), 1301.054 of the TEC, the settling of an 1002.015(3)); and account of the trustee, and all other 5.4.4. an application, petition, or motion matters relating to the trust. (a Matter regarding a trust created under Chapter Related to Guardianship Proceeding) 1301 of the TEC (a Guardianship (TEC §§ 1021.001(a)(7), 1022.001(a)). Proceeding) (TEC §§ 1022.005(a), 1002.015(4)). 5. Statutory Probate Courts (“SPCs”): 5.5. Similarly, in a county in which there is a SPC, the following matters must be 5.1. In a county in which there is a SPC, the brought in the SPC unless the SPC’s SPC has original jurisdiction of jurisdiction is concurrent with a District guardianship proceedings. TEC Court as provided by TEC Section § 1022.002(c). 1022.006 or with the jurisdiction of any 5.2. Further, in a county in which there is a other court (TEC § 1022.005(b)): SPC, the SPC has exclusive jurisdiction 5.5.1. the granting of letters of guardianship (a of all guardianship proceedings, Matter Related to Guardianship regardless of whether the proceeding is Proceeding) (TEC §§ 1022.005(b), contested or uncontested. TEC 1021.001(a)(1), 1022.001(a)); 16 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

5.5.2. the settling of the account of a guardian §§ 1022.005(b), 1021.001(a)(6)(D), and all other matters relating to the 1022.001(a)); settlement, partition, of distribution of a 5.5.6.5. A matter related to an authorization made ward’s estate (a Matter Related to or duty performed by a guardian under Guardianship Proceeding) (TEC Chapter 1204 (a Matter Related to §§ 1022.005(b), 1021.001(a)(2), Guardianship Proceeding) (TEC 1022.001(a)); §§ 1022.005(b), 1021.001(a)(6)(E), 5.5.3. a claim brought by or against a 1022.001(a)); guardianship estate (a Matter Related to 5.5.7. the appointment of a trustee for a trust Guardianship Proceeding) (TEC created under Section 1301.053 or §§ 1022.005(b), 1021.001(a)(3), 1301.054, the settling of an account of 1022.001(a)); the trustee, and all other matters relating 5.5.4. an action for trial of title to real property to the trust. (a Matter Related to that is guardianship estate property, Guardianship Proceeding) (TEC including the enforcement of a lien §§ 1022.005(b), 1021.001(a)(7), against the property (a Matter Related to 1022.001(a)); Guardianship Proceeding) (TEC 5.5.8. a suit, action, or application filed against §§ 1022.005(b), 1021.001(a)(4), or on behalf of a guardianship or a trustee 1022.001(a)); of a trust created under TEC §§ 1301.053 5.5.5. an action for trial of the right of property or 1301.054 (a Matter Related to that is guardianship estate property (a Guardianship Proceeding) (TEC Matter Related to Guardianship §§ 1022.005(b), 1021.001(b)(2), Proceeding) (TEC §§ 1022.005(b), 1022.001 (a)); and 1021.001(a)(5), 1022.001(a)); 5.5.9. a cause of action in which a guardian in a 5.5.6. after a guardianship of the estate of a guardianship pending in the statutory ward is required to be settled as provided probate court is a party (a Matter Related by TEC Section 1204: to Guardianship Proceeding) (TEC 5.5.6.1. an action brought by or on behalf of the §§ 1022.005(b), 1021.001(b)(3), former ward against a former guardian of 1022.001(a)). the ward for alleged misconduct arising 5.6. TEC Section 1022.007 deals with a from the performance of the person’s SPC’s ability to transfer to itself from duties as guardian (a Matter Related to another court certain matters related to a Guardianship Proceeding) (TEC guardianship proceeding that is pending §§ 1022.005(b), 1021.001(a)(6)(A), in the SPC. 1022.001(a)); 5.6.1. TEC Section 1022.007(a) provides that a 5.5.6.2. an action calling on the surety of a judge of a SPC, on the motion of a party guardian or former guardian to perform to the action or on the motion of a person in place of the guardian or former interested in the guardianship, may guardian, which may include the award (1) transfer to the SPC from a district, of a judgment against the guardian or county, or statutory court a cause of former guardian in favor of the surety (a action that is a matter related to a Matter Related to Guardianship guardianship proceeding pending in the Proceeding) (TEC §§ 1022.005(b), SPC, including a cause of action that is a 1021.001(a)(6)(B), 1022.001(a)); matter related to a guardianship 5.5.6.3. an action against a former guardian or the proceeding pending in the SPC and in former ward that is brought by a surety which the guardian, ward, or proposed that is called on to perform in place of the ward in the pending guardianship former guardian (a Matter Related to proceeding is a party; and (2) consolidate Guardianship Proceeding) (TEC the transferred cause of action with the §§ 1022.005(b), 1021.001(a)(6)(C), guardianship proceeding to which it 1022.001(a)); relates and any other proceedings in the 5.5.6.4. A claim for the payment of SPC that are related to the guardianship compensation, expenses, and court costs, proceeding. and any other matter authorized under 5.7. Texas Government Code Section Chapter 1155 (a Matter Related to 25.00222 deals with the transfer of cases Guardianship Proceeding) (TEC by a SPC judge and provides that:

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(a) The judge of a statutory probate 5.8. Texas Government Code Section court may transfer a cause of action 25.0026 provides that: pending in that court to another statutory probate court in the same (a) A statutory probate court or its judge county that has jurisdiction over the may issue writs of injunction, cause of action that is transferred. mandamus, sequestration, (b) If the judge of a statutory probate attachment, garnishment, certiorari, court that has jurisdiction over a supersedeas, and all writs necessary cause of action appertaining or for the enforcement of the incident to an estate pending in the jurisdiction of the court. It may issue statutory probate court determines writs of habeas corpus in cases in that the court no longer has cases in which the offense charged jurisdiction over the cause of action, is within the jurisdiction of the court the judge may transfer that cause of or any court of inferior jurisdiction action to: in the county. (b) A statutory probate court or its judge (1) a district court, county court, may punish for contempt as statutory county court, or prescribed by general law. justice court located in the (c) The judge of a statutory probate same county that has court has all other powers, duties, jurisdiction over the cause of immunities, and privileges provided action that is transferred; or by law for county court judges. (2) the court from which the cause (d) The judge of a statutory probate of action was transferred to the court has no authority over the statutory probate court under county’s administrative business Section 5B or 608, Texas that is performed by the county Probate Code. [Both of these judge. sections have been repealed by the TEC. Section 5B has been 6. District Courts: replaced by TEC Section 304.001. Section 608 has been 6.1. A District Court does not have original replaced by TEC Section probate jurisdiction over “guardianship 1022.107]. proceedings” or “matters related to guardianship proceedings” (save and (c) When a cause of action is except for its jurisdiction over trusts). It transferred from a statutory probate only has jurisdiction to hear a contested court to another court as provided by guardianship proceeding that has been Subsection (a) or (b), all processes, transferred to it. When a transfer occurs, writs, bonds, recognizances, or the District Court has the jurisdiction of other obligations issued from the a SPC. TEC § 1022.003(g). On statutory probate court are resolution of a contested matter returnable to the court to which the transferred to the District Court, the cause of action is transferred as if District Court shall return the matter to originally issued by that court. The the CCC for further proceedings not obligees in all bonds and inconsistent with the orders of the recognizances taken in and for the District Court or court of appeals, as statutory probate court, and all applicable. Id. witnesses summoned to appear in the statutory probate court, are 7. Transfer of Contested Guardianship of the required to appear before the court Person of a Minor: to which the cause of action is transferred as if originally require to 7.1. TEC Section 1022.008(a) provides that, appear before the court to which the “[i]f an interested person contests an cause of action is transferred as if application for the appointment of a originally required to appear before guardian of the person of a minor or an the court to which transfer is made. interested person seeks the removal of a guardian of the person of a minor, the 18 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

judge, on the judge’s own motion, may original jurisdiction over trusts, except transfer all matters related to the for jurisdiction conferred on Statutory guardianship proceeding to a court of Probate Courts. Section 115.001 competent jurisdiction in which a suit originally contained a “laundry list” of affecting the parent-child relationship trust matters over which the District under the Family Code is pending.” Court had jurisdiction. Interpretation of 7.2. TEC Section 1022.008(b) provides that, this laundry list led to litigation, which “[t]he probate court that transfers a ultimately caused the legislature to proceeding under this section to a court change the statute and give District with proper jurisdiction over suit Courts original and exclusive jurisdiction affecting the parent-child relationship over “all proceedings by or against a shall send to the court to which the trustee and all proceedings concerning transfer is made the complete files in all trusts . . . .” When the legislature made matters affecting the guardianship of the these changes, it left the laundry list in person of the minor and certified copies Section 115.001. If a proceeding is of all entries in the judge’s guardianship brought by or against a trustee, or if a docket. The transferring court shall keep proceeding “concerns” a trust, then the a copy of the transferred files. If the laundry list is irrelevant—the District transferring court retains jurisdiction of Court has jurisdiction. the guardianship of the estate of the 2.2. District Courts and, to some extent, SPCs minor or of another minor who was had original and exclusive jurisdiction subject of the suit, the court shall send a over trust matters when TTC Section copy of the complete files to the court to 115.001 was originally enacted. Over the which the transfer is made and shall keep years, this jurisdiction has been expanded the original files.” to include other courts. 7.3. TEC Section 1022.008(c) provides that, “[t]he court to which the transfer is made 3. District Courts: under this section shall apply the procedural and substantive provisions of 3.1. TTC Section 115.001(a) provides that, the Family Code, including Sections “[e]xcept as provided by Subsection (d) 115.005 and 115.205, in regard to of this section, a district court has enforcing an order rendered by the court original and exclusive jurisdiction over from which the proceeding was all proceedings by or against a trustee and transferred.” all proceedings concerning trusts, including proceedings to: PART 3: TRUST JURISDICTION 1. Definitions: (1) construe a trust instrument; (2) determine the law applicable to a 1.1. “TTC” refers to the Texas Trust Code. trust instrument; 1.2. TTC Section 111.004(7) defines an (3) appoint or remove a trustee; “interested person” as “a trustee, (4) determine the powers, beneficiary, or any other person having responsibilities, duties and liability an interest in or a claim against the trust of a trustee; or any person who is affected by the (5) ascertain beneficiaries; administration of the trust. Whether a (6) make determinations of fact person, excluding a trustee or named affecting the administration, beneficiary, is an interested person may distribution or duration of a trust; vary from time to time and must be (7) determine a question arising in the determined according to the particular administration or distribution of a purposes of and matter involved in any trust; proceeding.” (8) relieve a trustee from any or all of the duties, limitations, and 2. Preliminary Matters: restrictions otherwise existing under the terms of the trust instrument or 2.1. Trust jurisdiction is governed by Texas this subtitle; Trust Code Section 115.001. Originally, the District Court had exclusive and 19 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

(9) require an accounting by a trustee, [which has been repealed and is now review trustee fees, and settle TEC Section 1301.051 et seq.]; interim or final accounts; and 3.5.2.1. [TEC Section 1301.052(a) provides that (10) surcharge a trustee.” an application for the creation of a management trust under Section 3.2. TTC Section 115.001(a-1) provides that, 1301.054 must be filed in the same court “[t]he list of proceedings described by in which a proceeding for the Subsection (a) over which a district court appointment of a guardian of the person has exclusive and original jurisdiction is is pending, if any.] not exhaustive. A district court has 3.5.2.2. [TEC Section 1301.052(b) provides that, exclusive and original jurisdiction over a if a proceeding for the appointment of a proceeding against a trustee or a guardian for an alleged incapacitated proceeding concerning a trust under person is not pending on the date an Subsection (a) whether or not the application is filed for the creation of a proceeding is listed in Subsection (a).” trust under Section 1301.054 for the 3.3. TTC Section 115.001(b) provides that, person, venue for a proceeding to create “[t]he district court may exercise the a trust must be determined in the same powers of a in matters manner as venue for a proceeding for the pertaining to trusts.” appointment of a guardian is determined 3.4. TTC Section 115.001(c) provides that, under Section 1023.001. This section “[t]he court may intervene in the does not confer jurisdiction on any court administration of a trust to the extent that if a proceeding for the appointment of a the court’s jurisdiction is invoked by an guardian is not pending.] interested person or as otherwise 3.5.2.3. [To make this more confusing, TEC provided by law. A trust is not subject to Section 1301.053(a) provides that, on continuing judicial supervision unless the application by an appropriate person, the court orders continuing judicial court with jurisdiction over the supervision.” proceedings may enter an order that 3.5. TTC Section 115.001(d) provides that creates a management trust.] the jurisdiction of the district court is 3.5.2.4. [This section obviously contemplates exclusive except for jurisdiction that Section 1301 (management) trusts conferred by law on: may be created by courts exercising 3.5.1. a statutory probate court; jurisdiction over guardianship matters.] 3.5.1.1. [Note that bracketed comments are the 3.5.3. a court that creates a trust under Section author’s and are not part of TTC Section 142.005 [of the Texas Property Code]; 115.001(d).] 3.5.3.1. [Texas Property Code Section 3.5.1.2. [TEC Section 32.006(1) provides that a 142.005(a) provides that “[a]ny court of SPC has jurisdiction over an action by or record with jurisdiction to hear a suit against a trustee.] involving a beneficiary” may create a 3.5.1.3. [TEC Section 32.006(2) provides that a Section 142.005 Trust. This would grant SPC has jurisdiction over an action jurisdiction to District Courts and SPCs. involving an inter vivos trust, Further, this could conceivably grant testamentary trust, or charitable trust.] jurisdiction to CCLs exercising probate 3.5.1.4. [TEC Section 32.007(2) provides that a jurisdiction under TEC Section SPC has concurrent jurisdiction with the 31.002(b)(2) and (3).] District Court over actions by or against 3.5.4. a justice court under Chapter 27, a trustee.] Government Code; 3.5.1.5. [TEC Section 32.007(3) provides that a 3.5.4.1. [Texas Government Code Section 27.031 SPC has concurrent jurisdiction with the does not expressly confer justice courts District Court over actions involving a jurisdiction over trusts. There is, inter vivos trust, testamentary trust, or consequently, a question as to whether charitable trust, including a charitable justice courts have any trust jurisdiction trust as defined by Section 123.001 of the despite this provision. The phrase Texas Property Code.] “except for jurisdiction conferred by 3.5.2. a court that creates a [management] trust law” in TTC Section 115.001(d) should under Section 867, Texas Probate Code relate to a court somehow being conferred specific trust jurisdiction.] 20 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

3.5.4.2. [Texas Government Code Section 27.031 PART 4: DOMINANT JURISDICTION does confer justice courts jurisdiction 1. Definition: over “civil matters in which exclusive jurisdiction is not in the district or county 1.1 The principle of “dominant jurisdiction” court and in which the amount in is well-established in Texas controversy is not more than $10,000, jurisprudence. The general rule is that, “if exclusive of interest.” TTC Section two lawsuits concerning the same 115.001(b)(4) was probably inserted to controversy and parties are pending in prevent a District Court from hearing courts of coordinate jurisdiction, the matters in which the amount in court in which suit was first filed controversy does not exceed $10,000.] acquires dominant jurisdiction to the 3.5.5. a small claims court under Chapter 28, exclusion of the other court.” Sweezy Government Code; or Constr., Inc. v. Murray, 915 S.W.2d 527, 3.5.5.1. [In 2011, the Texas Legislature repealed 531 (Tex. App.—Corpus Christi 1995, all of Chapter 28, and the effective date orig. proceeding) (citing Wyatt v. Shaw of this repeal was August 31, 2013.] Plumbing Co., 760 S.W.2d 245, 248 3.5.5.2. [When it existed, Texas Government (Tex. 1988)); San Miguel v. Bellows, 35 Code Section 28.003 did not expressly S.W.3d 702, 704 (Tex. App.—Corpus confer small claims courts jurisdiction Christi 2000, pet. denied); Hartley v. over trusts. There is, consequently, a Coker, 843 S.W.2d 743, 747-48 (Tex. question as to whether small claims App.—Corpus Christi 1992, no writ); courts have any trust jurisdiction despite Curtis v. Gibbs, 511 S.W.2d 263, 267 this provision. The phrase “except for (Tex. 1974) (citing Cleveland v. Ward, jurisdiction conferred by law” in TTC 285 S.W. 1063 (Tex. 1926)). Section 115.001(d) should relate to a 1.2 Courts must answer the “dominant- court somehow being conferred specific jurisdiction question” only if there is an trust jurisdiction.] “inherent interrelation of the subject 3.5.5.3. Texas Government Code Section 28.003 matter . . . in two pending lawsuits.” In re does confer small claims courts J.B. Hunt Transp., Inc., 492 S.W.3d 287 jurisdiction over “actions by any person (Tex. 2016) (orig. proceeding) (citing for recovery of money in which the Wyatt, 760 S.W.2d at 247). If there is no amount involved, exclusive of costs, inherent interrelation, “then dominant [did] not exceed $10,000.” TTC Section jurisdiction is not an issue, and both suits 115.001(d)(5) was probably inserted to may proceed.” Id. prevent a District Court from hearing matters in which the amount in 2. Preliminary Matters: controversy did not exceed $10,000.] 3.5.6. a county court at law. 2.1. Dominant jurisdiction excludes multiple 3.5.6.1. [TEC Section 31.002(b)(2) provides that, courts from exercising jurisdiction over in counties in which there is no SPC, but the same case. Curtis, 511 S.W.2d at 267. in which there is a CCL exercising Once dominant jurisdiction is original probate jurisdiction, the CCL has established, any subsequent lawsuit jurisdiction over the interpretation and involving the same parties and administration of a testamentary trust if controversy must be dismissed. Id.; In re the will creating the trust has been Sims, 88 S.W.3d 297, 303 (Tex. App.— admitted to probate in the court.] San Antonio 2002, orig. proceeding) 3.5.6.2. [TEC Section 31.002(b)(3) provides that, (court that first acquires jurisdiction in counties in which there is no SPC, but retains jurisdiction undisturbed by the in which there is a CCL exercising interference of another court). Dominant original probate jurisdiction, the CCL has jurisdiction supports the longstanding jurisdiction over the interpretation and policy of Texas courts to “avoid a administration of an inter vivos trust multiplicity of lawsuits.” Wyatt, 760 created by a decedent whose will has S.W.2d at 246. been admitted to probate in the court.] 2.2. Dominant jurisdiction recognizes that, while tangential matters may arise, they should be decided by the first-filed court. As one court observed in analyzing a 21 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

dominant-jurisdiction issue, the first- interrelation” to support dominant filed court “is ordinarily in the best jurisdiction. position to determine ancillary matters 3.5. In the case In re Sims, Sims filed a relating to the prosecution of that breach-of-contract action and sued to lawsuit.” Sweezy Constr., 915 S.W.2d at enforce a divorce decree in Bexar 527. County. 88 S.W3d 297, 301 (Tex. App.—San Antonio 2002, orig. pet.) 3. Application: Frost Bank filed a subsequent suit in Medina County seeking declaratory 3.1. For purposes of dominant jurisdiction, it judgment regarding the duty to pay under is not required that the two lawsuits the parties’ agreement incident to involve the exact same parties and issues. divorce. Id. The Bexar County Court In most dominant-jurisdiction cases, “the abated the first-filed case. Id. According parties and controversies are similar, but to the court of appeals, however, “the not identical.” Hartley v. Coker, 843 same subject matter, the Agreement and S.W.2d at 747-48 (emphasis added). its application to the Alamo Water “Nevertheless, abatement may still be Marmon Group transaction, exists in mandatory.” Id. Further, “it is not both suits.” Id. at 303. The court of required that the exact issues and all appeals went on to explain that “it was parties be included in the first action not necessary that the exact same issues before the second is filed, provided that had to be included in the Bexar County the claim in the first suit may be amended action before Frost Bank filed its lawsuit to bring in all necessary and proper in Medina County. The pleadings in parties and issues.” Id. at 748 (citing Bexar County [the first-filed suit] have Wyatt, 760 S.W.2d at 247); see also been amended to bring the issues Niemeyer v. Tanner Oil & Gas Corp., asserted in the second-filed suit.” Id. at 952 S.W.2d 941, 944 (Tex. App.— 304 (emphasis added); see also Sweezy Austin 1997, no pet.); In re ExxonMobil Constr., 915 S.W.2d at 531-32 Prod. Co., 340 S.W.3d 852, 856 (Tex. (construction contract was the basis for App.—San Antonio 2011, orig. establishing dominant jurisdiction). proceeding). 3.2. The “test is whether there is an inherent 4. Exceptions: interrelation of the subject matter in the two suits.” In re Sims, 88 S.W.3d at 303; 4.1. There are exceptions to the general rule Hartley, 843 S.W.2d at 748 (citing Wyatt, that the first-filed court acquires 760 S.W.2d at 247); Davis v. Guerro, 64 dominant jurisdiction to the exclusion of S.W.3d 685, 690-91 (Tex. App.—Austin coordinate courts. In re J.B. Hunt 2002, no pet.). Transp., Inc., 492 S.W.3d at 287. The 3.3. Dominant jurisdiction is established, and first-filed court will not have dominant other courts must yield, if a litigant jurisdiction if: (1) the party seeking shows that: (1) there was a first-filed abatement is estopped from asserting the lawsuit that is still pending; (2) the first- first-filed court’s jurisdiction; (2) all filed lawsuit could be amended to include parties cannot be joined in the first-filed all of the parties; and (3) the court, or the first-filed court does not controversies are the same or the first- have the power to bring such parties filed lawsuit could be amended to include before itself; or (3) the parties in the first- all of the same claims. ExxonMobil, 340 filed court lack intent to prosecute that S.W.3d at 856. If these are shown, then action. Hartley v. Coker, 843 S.W.2d at the cases are inherently interrelated, and 747 (citing Wyatt, 760 S.W.2d at 248). dominant jurisdiction is established. See 4.1.1. The first exception, also known as the id. “inequitable-conduct exception,” 3.4. A document is often the link that makes provides that “the plaintiff in the first- cases “inherently interrelated.” For filed suit may be guilty of such example, the San Antonio Court of inequitable conduct as will estop him Appeals concluded that two cases with from relying on that first-filed suit to the same document at the center of the abate a subsequent proceeding brought controversy provided the “inherent by his adversary.” In re J.B. Hunt 22 Probate, Guardianship and Trust Jurisdiction in Texas Chapter 6

Transp., Inc., 492 S.W.3d at 287 (citing Curtis, 511 S.W.2d at 267). 4.1.2. It is not clear when the second exception should apply. The court in Hartley stated that the second exception applies when “all persons cannot be joined in the first court, or the first court does not have the power to bring such parties before the court . . . .” 843 S.W.2d at 747. In support of this, the Hartley court cited the Texas Supreme Court in Wyatt, but Wyatt says the second exception exists when there is a “lack of persons to be joined if feasible . . . .” 760 S.W.2d at 248 (emphasis added). 4.1.3. The third exception is shown when the party filing the first suit did so “merely to obtain priority, without a bona fide intention to prosecute the suit.” In re J.B. Hunt Transp., Inc., 492 S.W.3d at 287 (citing Curtis, 511 S.W.2d at 267). To avoid the application of this exception, the party filing the first suit “must exhibit ‘actual diligence [after filing suit] in getting out citation and otherwise prosecuting his suit.’” Id. (citing Reed v. Reed, 311 S.W.2d 628, 631 (Tex. 1958).

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