NO. 12-20-00261-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE MATTER OF THE ESTATE

OF BETTY JO COLLINS,

DECEASED

§

§

§

APPEAL FROM THE

COUNTY COURT AT LAW NO. 3

SMITH COUNTY, TEXAS

OPINION

Appellant John Russell Hobbs challenges the denial of his plea to the jurisdiction and his 

removal as executor of the estate of the decedent, Betty Jo Collins. In three issues, Hobbs argues 

that the trial court (1) erred by denying his plea to the jurisdiction, (2) abused its discretion by

removing him as executor, and (3) erred by ordering him to pay his own attorney’s fees and 

expenses in defending the removal action. For the reasons explained herein, we affirm the trial 

court’s order denying Hobbs’s plea to the jurisdiction, reverse the trial court’s order removing 

Hobbs as executor and requiring him to pay his attorney’s fees from his own funds, and remand 

the cause for further proceedings consistent with this opinion.

BACKGROUND

Appellee Phillip W. Bailey, the decedent’s grandson, filed an application to probate the 

decedent’s will. In her will, which she signed in 2003, the decedent bequeathed her entire estate 

to Bailey. Bailey stated in his application that the decedent died on June 22, 2018, and he pleaded 

that the will named Hobbs as independent executor. The trial court admitted the will to probate

and issued letters testamentary to Hobbs. Hobbs filed an inventory, appraisement, and list of 

claims on April 16, 2019. One of the items identified on the inventory, appraisement, and list of 

claims was a checking account at Southside Bank, which Hobbs stated contained $4,836.58.

Bailey asserted that statements from Southside Bank showed payments of approximately $800,000 

from the account to either Hobbs individually or Hobbs’s sole proprietorship, JRH Enterprises. 
2

According to Bailey, said payments to Hobbs and JRH occurred after decedent had suffered a 

major stroke and her husband had died. Bailey pleaded that Hobbs deposited the funds from the 

joint account into a separate checking account that was solely in Hobbs’s name, and he asserted 

that the joint account belonged to the parties in proportion to their net contributions.

1 Bailey also 

maintained that Hobbs contributed only $36,500 to the Southside Bank account, so “over $750,000 

of the money taken from [d]ecedent’s [Southside Bank] account by Hobbs legally belonged” only 

to decedent.

Hobbs contended that Collins opened a multi-party account with right of survivorship with 

him on October 3, 1995, and he pleaded that under the account’s terms, upon the death of a party, 

the deceased party’s ownership of the account passed to the surviving party. Hobbs argued that 

although Bailey was named as the beneficiary of the joint account, the account “was not designated 

as a payable on death account.” According to Hobbs, the joint account is “non-testamentary and 

not subject to being probated.” Hobbs further asserted that the probate assets of the estate have 

been disbursed, and “[n]o complaint or allegation has been made with regard to any acts and/or

omissions on the part of Hobbs in his capacity as the independent executor.” Additionally, Hobbs 

argued that as a stranger to the Southside Bank account, Bailey lacked standing to question the 

actions of the joint account holders prior to the decedent’s death.

Records from Southside Bank indicate that the account was a multiple-party account with 

right of survivorship, owned by the decedent and Hobbs, and Bailey was listed as the beneficiary. 

In a section of the account card labeled “OWNERSHIP OF ACCOUNT—CONSUMER,” the 

account holders (the decedent and Hobbs) were directed to place their initials next to the type of 

account selected, and the blank beside “Multiple-Party Account With Right of Survivorship” is 

initialed. The account terms and conditions state that “[o]n the death of a party, the party’s 

ownership of the account passes to the surviving parties.” The account did not have a payable on 

death designation. The terms and conditions also provide that with respect to a multiple-party 

account with right of survivorship, “[t]he parties to the account own the account in proportion to 

1 See TEX. EST. CODE ANN. § 113.102 (West 2020) (providing that “[d]uring the lifetime of all parties to a 

joint account, the account belongs to the parties in proportion to the net contributions by each party to the sums on 

deposit unless there is clear and convincing evidence of a different intent.”).
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the parties’ net contributions to the account[,]” and the bank “may pay any sum in the account to 

a party at any time.”2

Hobbs and JRH filed a plea to the jurisdiction, asserting that the joint account was “nontestamentary and not subject to being probated.” According to Hobbs and JRH, Bailey had no 

right to the joint account. Hobbs and JRH maintained that Bailey’s complaint pertains to financial 

transactions that occurred between the decedent and Hobbs prior to the decedent’s death, and the 

trial court “has no subject matter jurisdiction with regard to the claims being asserted by Bailey[.]”

Hobbs and JRH Enterprises argued that because standing is a component of subject matter 

jurisdiction and Bailey lacks standing to “question the actions of the joint account holders” before 

the decedent’s death, the trial court lacked jurisdiction to hear the case.3

Bailey subsequently filed a motion to remove Hobbs as executor, in which he asserted that 

“evidence obtained over the preceding months indisputably shows that Hobbs stole approximately 

$800,000 from the decedent during the final four years of her life – after her husband died, after 

she suffered a serious stroke, and while she was living in a memory care facility.” Bailey stated 

that he filed the motion “in his capacity as applicant and sole will beneficiary” and asserted that 

he is an “interested person” under the Texas Estates Code. Bailey contended that Hobbs “stole” 

approximately $800,000 from the decedent by withdrawing funds from the joint account, and he 

again argued that because Hobbs only contributed $36,500 to the account, over $750,000 of the 

money taken from the joint account legally belonged solely to decedent. Bailey maintained that

Hobbs should be removed as executor because Hobbs would not “pursue claims on behalf of the 

Estate against himself to recover the money he pilfered from Decedent.” According to Bailey, if 

he successfully recovered funds from Hobbs, said funds would be paid to decedent’s estate. Bailey 

argued that Hobbs should be removed because he is guilty of “gross misconduct and/or gross 

mismanagement” by failing to pursue the decedent’s estate’s claims against him. Bailey also filed 

a response to Hobbs’s plea to the jurisdiction, in which he contended that he sought the ability to 

sue Hobbs on behalf of the estate for “theft and breach of fiduciary duties committed against 

2 The terms and conditions of the multiple-party account with right of survivorship defined “party” as “a 

person who, by the terms of the account, has a present right, subject to request, to payment from a multiple-party 

account.”

3 When Hobbs filed his plea to the jurisdiction, Bailey had not yet filed his motion to remove Hobbs as 

executor, but Bailey had sought to compel Hobbs, JRH Enterprises, and Southside Bank to produce records. Although 

Hobbs addressed the discovery proceedings in his plea to the jurisdiction, Hobbs limits his appellate complaints 

regarding jurisdiction to the action seeking his removal.
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Decedent prior to her death.” In response, Hobbs asserted that Bailey’s only complaint pertains to 

the multi-party account with right of survivorship, which is non-testamentary, and the decedent 

chose not to mention the account in her will or to designate it as a payable on death account.

In his response to the motion to remove him as executor, Hobbs stated that the probate 

assets were properly disbursed and “Bailey can point to no act or omission of the executor wherein 

the executor failed to fulfill his obligations.” Hobbs reiterated his argument that the account is 

non-testamentary and that the decedent chose not to mention the account in her will. Hobbs

asserted that “Bailey makes no claim that [decedent] was mentally incompetent or subject to any 

undue influence when the joint account was established[.]” Hobbs attached as exhibits to his 

response to the motion sworn declarations from two individuals involved in the decedent’s care. 

Both individuals stated in their declarations that Hobbs was actively and supportively involved in 

the decedent’s life, but Bailey was not. The trial judge signed orders (1) denying Hobbs’s plea to 

the jurisdiction, and (2) removing Hobbs as executor and ordering Hobbs to pay his attorney’s fees 

and expenses from his personal funds rather than from funds of the estate. This appeal followed.

PLEA TO THE JURISDICTION

In his first issue, Hobbs argues that the trial court erred by denying his plea to the 

jurisdiction. Specifically, Hobbs asserts that the trial court lacked subject matter jurisdiction 

because Bailey did not have standing to seek to remove Hobbs as executor.

Standard of Review and Applicable Law

Because subject matter jurisdiction presents a question of law, we review the trial court’s 

ruling on a plea to the jurisdiction de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 

(Tex. 1998). In reviewing a plea to the jurisdiction, we review the pleadings and any evidence that 

is relevant to the jurisdictional issue. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 

587 (Tex. 2001).

The Texas Estates Code provides that upon the motion of any interested person, the probate 

court may remove an independent executor who “is proved to have been guilty of gross misconduct 

or gross mismanagement in the performance of the independent executor’s duties[]” or “the 

independent executor becomes incapable of properly performing the independent executor’s 

fiduciary duties due to a material conflict of interest.” TEX. EST. CODE ANN. § 404.0035(b)(2), (4)
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(West 2020). The Texas Estates Code defines an “interested person” as “an heir, devisee, . . . or 

any other having a property right in . . . an estate being administered[.]” Id. § 22.018(1).

Analysis

In arguing that the trial court lacked subject matter jurisdiction of Bailey’s motion to 

remove Hobbs as executor, Hobbs relies heavily on Cardona v. Cardona, No. 09-19-00118-CV, 

2020 WL 2070160 (Tex. App.—Beaumont Apr. 30, 2020, no pet.) (mem. op.). Cardona involved 

a lawsuit by some of the decedent’s children (the Appellants) against their brother Francisco

regarding Francisco’s alleged breach of fiduciary duty to the decedent and to Appellants. Id. at 

*1. While acting pursuant to a power of attorney from the decedent, Francisco sold the decedent’s 

home and placed the proceeds from the sale into an account that was payable on death to himself.

Id. The Cardona court concluded that the Appellants lacked standing to pursue a claim against 

Francisco for breach of fiduciary duty. Id. at *4. In Cardona, the Court of Appeals noted that 

payable on death accounts are governed by a written agreement and are not part of the decedent’s 

estate, and the Court concluded that Appellants failed to prove that Francisco breached any 

fiduciary duty to the decedent that diminished his estate. Id. Cardona did not involve the 

attempted removal of an executor by a devisee under Section 404.0035(b) of the Texas Estates 

Code. Rather, Cardona involved a separate lawsuit for breach of fiduciary duty, which was not 

filed in the probate court. We therefore conclude that, with respect to the issue of standing,

Cardona is distinguishable and inapposite to the facts presented in the instant case.

Whether Bailey proved statutory grounds for removing Hobbs as executor, which we will 

address in our discussion of issue two, is a separate issue from determining whether the trial court

had subject matter jurisdiction of Bailey’s motion to remove Hobbs. We conclude that as the sole 

devisee under decedent’s will, Bailey is an “interested person” who is statutorily authorized to 

seek removal of the executor under the Texas Estates Code, and the trial court therefore had subject 

matter jurisdiction over Bailey’s motion to remove Hobbs. See TEX. EST. CODE ANN.

§§ 22.018(1), 404.0035(b)(2). Accordingly, we overrule issue one.

REMOVAL OF EXECUTOR

In his second issue, Hobbs contends the trial court abused its discretion by removing him 

as executor of the decedent’s estate. Specifically, Hobbs asserts that Bailey failed to prove a 
6

statutory ground justifying his removal under Section 404.0035(b) of the Texas Estates Code. See 

id. § 404.0035(b).

Standard of Review and Applicable Law

We review the trial court’s order removing an executor for abuse of discretion. In re Estate 

of Clark, 198 S.W.3d 273, 275 (Tex. App.—Dallas 2006, pet. denied); Lee v. Lee, 47 S.W.3d 767, 

786 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). A trial court abuses its discretion if it 

acts arbitrarily or unreasonably, without reference to guiding rules and principles. Downer v. 

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Lee, 47 S.W.3d at 786.

“Ownership of funds held in a multiple[-]party account after the death of a party is 

determined by statute.” Hare v. Longstreet, 531 S.W.3d 922, 925 (Tex. App.—Tyler 2017, no 

pet.). Under the Texas Estates Code, “[s]ums remaining on deposit on the death of a party to a 

joint account belong to the surviving party or parties against the estate of the deceased party if the 

interest of the deceased party is made to survive to the surviving party or parties by a written 

agreement signed by the party who dies.” TEX. EST. CODE ANN. § 113.151(a) (West 2020). The 

Texas Estates Code provides that transfers resulting from the application of Section 113.151 “are 

effective by reason of the account contracts involved and . . . are not to be considered testamentary 

transfers or subject to the testamentary provisions of this title.” Id. § 113.158; see Stauffer v. 

Henderson, 801 S.W.2d 858, 863 (Tex. 1990). An interested person may seek removal of an 

independent executor who “is proved to have been guilty of gross misconduct or gross 

mismanagement in the performance of the independent executor’s duties[]” or if “the independent 

executor becomes incapable of properly performing the independent executor’s fiduciary duties 

due to a material conflict of interest.” TEX. EST. CODE ANN. § 404.0035(b)(2), (4). The party 

seeking to have an independent executor removed has the burden of establishing a violation of the 

statute. Kappus v. Kappus, 284 S.W.3d 831, 835 (Tex. 2009).

Analysis

Bailey asserts that the trial court properly removed Hobbs as executor because Hobbs 

would not pursue any claim decedent’s estate might have against him, and that Hobbs is guilty of 

“gross misconduct and/or gross mismanagement.” All of Bailey’s contentions involve the 

multiple-party account with right of survivorship. The signature card and terms and conditions of 

the account indicate that the account was created as a multiple-party account with right of 

survivorship, and that upon the death of one party, the deceased party’s ownership of the account 
7

would pass to the other party. See TEX. EST. CODE ANN. § 113.151. Therefore, under the Texas 

Estates Code, the account was non-testamentary, and the funds passed to Hobbs pursuant to the 

account contract. See id. § 113.158. Furthermore, because the account was non-testamentary and 

Hobbs and the decedent had equal rights to the funds in the account during decedent’s lifetime,

there was no evidence that Hobbs either (1) engaged in gross misconduct or gross mismanagement 

in the performance of his duties as executor or (2) was incapable of properly performing his

fiduciary duties due to a material conflict of interest. See id. § 404.0035(b)(2), (4); Stauffer, 801 

S.W.2d at 863. We conclude that Bailey failed to meet his burden of establishing a violation of 

the statute, and the trial court therefore abused its discretion by removing Hobbs. See TEX. EST.

CODE ANN. § 404.0035(b)(2), (4); Kappus, 284 S.W.3d at 835; Downer, 701 S.W.2d at 241-42;

In re Estate of Clark, 198 S.W.3d at 275; Lee, 47 S.W.3d at 786. Accordingly, we sustain issue 

two.

REQUIRING EXECUTOR TO PAY EXPENSES AND FEES WITH PERSONAL FUNDS

In issue three, Hobbs contends the trial court erred by ordering him to pay his attorney’s 

fees and expenses in defending the removal action with his personal funds rather than estate funds.

Standard of Review and Applicable Law

We review a trial court’s decision regarding whether to award attorney’s fees and expenses 

for an abuse of discretion. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Avila v. Larrea, 

506 S.W.3d 490, 494 (Tex. App.—Dallas 2015, pet. denied); Lee, 47 S.W.3d at 793. As discussed 

above, a trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference 

to any guiding rules or principles. Downer, 701 S.W.2d at 241-42; Lee, 47 S.W.3d at 786.

Section 404.0037(a) of the Texas Estates Code provides as follows: “An independent 

executor who defends an action for the independent executor’s removal in good faith, whether 

successful or not, shall be allowed out of the estate the independent executor’s necessary expenses 

and disbursements, including reasonable attorney’s fees, in the removal proceedings.” TEX. EST.

CODE ANN. § 404.0037(a) (West 2020) (emphasis added). “Because the word ‘shall’ normally 

imposes a mandatory requirement, and nothing in the statute indicates a different intent, the 

requirement that an independent executor who defends a removal action in good faith be allowed 

to pay the executor’s reasonable and necessary legal fees from estate funds is mandatory.” Estate 

of Nunu, 542 S.W.3d 67, 81 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).
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Analysis

We concluded above in our analysis of issue two that the trial court abused its discretion 

by removing Hobbs because there was no evidence of the statutory grounds for doing so. It 

necessarily follows that Hobbs defended the removal action in good faith, and it was therefore 

mandatory for the trial court to allow Hobbs to recover his attorney’s fees and expenses from the 

estate. See TEX. EST. CODE ANN. § 404.0037(a); see generally id. §§ 113.151, 113,158,

404.0035(b)(2), (4). We therefore conclude that the trial court abused its discretion by ordering 

Hobbs to use his personal funds to pay the attorney’s fees and expenses he incurred in defending 

the removal action. See id. § 404.0037(a); Estate of Nunu, 542 S.W.3d at 81. We sustain issue 

three.

DISPOSITION

Having overruled issue one, we affirm the trial court’s order denying Hobbs’s plea to the 

jurisdiction. Having sustained issues two and three, we reverse the trial court’s order removing 

Hobbs as executor and requiring Hobbs to pay his attorney’s fees and expenses from his personal 

funds, and we remand the cause for further proceedings consistent with this opinion.

JAMES T. WORTHEN

Chief Justice

Opinion delivered December 1, 2021.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

DECEMBER 1, 2021

NO. 12-20-00261-CV

IN THE MATTER OF THE ESTATE

OF BETTY JO COLLINS, DECEASED

Appeal from the County Court at Law No. 3

of Smith County, Texas (Tr.Ct.No. 43363P)

“THIS CAUSE came to be heard on the appellate record and the briefs filed 

herein, and the same being considered, it is the opinion of this Court that there was error in order 

of the court below insofar as it removed Appellant John Russell Hobbs as executor and required 

him to pay his attorney’s fees and expenses from his personal funds, in all other respects the 

judgment of the trial court is affirmed.

It is ORDERED, ADJUDGED and DECREED by this Court that the order 

removing Appellant John Russell Hobbs as executor and requiring him to pay his attorney’s fees 

and expenses from his personal funds is reversed, and the cause is remanded to the trial court for 

further proceedings in accordance with the opinion of this Court; and that this decision be 

certified to the court below for observance.”

James T. Worthen, Chief Justice. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.