In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-17-00059-CV

ESTATE OF JOHN BRECKENRIDGE GIBSON, JR., DECEASED

On Appeal from the Probate Court No. 1

Tarrant County, Texas

Trial Court No. 2011-PR01745-1

Before Morriss, C.J., Moseley and Burgess, JJ.

Memorandum Opinion by Chief Justice Morriss
2

MEMORANDUM OPINION

In 1989, the then unmarried John Breckenridge Gibson, Jr., began working for the 

University of Texas at Dallas and designated his sister, Beverly Ward, as the beneficiary of any 

and all death benefits payable from his retirement plan with the Teachers’ Retirement System of 

Texas (TRS). Though, in 2003, Gibson married Mildred Diane Fox-Gibson, he never changed his 

TRS beneficiary designation. In 2011, Gibson died intestate. 

Fox-Gibson was appointed the administrator of Gibson’s estate and later filed this action1

in the administration proceeding in her representative capacity seeking, inter alia, a declaration by 

the Probate Court of Tarrant County2that Fox-Gibson, individually, has a community property 

interest in the TRS plan benefits and that the community property portion of Gibson’s death 

benefits held by TRS should be paid over to her. After at least two hearings,3the probate court 

 

1As administrator of Gibson’s estate, Fox-Gibson already had the authority to administer Gibson’s separate property 

and the community property that had been under Gibson’s management during his marriage. See TEX. EST. CODE 

ANN. § 453.009(a)(1)–(2) (West 2014). As administrator, she could also commence a suit for the recovery of personal 

property, debts, or damages. See TEX. EST. CODE ANN. § 351.054(a)(1) (West 2014). We construe this pleading as a 

suit for the recovery of personal property.

2Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme 

Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We are unaware 

of any conflict between precedent of the Second Court of Appeals and that of this Court on any relevant issue. See TEX.

R. APP. P. 41.3.

3On January 16, 2014, an initial hearing was held on the application. At the hearing, Fox-Gibson testified that she 

was married to Gibson on September 26, 2003, and that he passed away on September 26, 2011. She also testified 

that she is the alternate payee and that the community interest was any deposits and interest made into the account 

after the date of their marriage. Fox-Gibson also entered into evidence certain business records concerning Gibson’s 

TRS plan account. Ward stated that she was the named beneficiary and that Gibson left all of the benefits to her, but 

she also asked that Fox-Gibson be awarded the community portion. At the end of the hearing, the probate court took 

the case under advisement. 

On March 27, 2014, the staff attorney for the probate court notified Fox-Gibson that, before the probate court 

could sign an order on the application, it would need to determine the heirship of Gibson. Fox-Gibson filed a verified 

application to determine heirship in which she alleged that she and Ward were the only survivors of Gibson. The 

probate court then appointed Bill Catterton as attorney ad litem to represent the interests of the unknown heirs. On 

December 12, 2014, Catterton filed a report identifying Tina Gibson Triplett, Gibson’s daughter from a prior marriage,
3

 

as a surviving heir. Consequently, on February 20, 2015, Fox-Gibson filed her second amended application to 

determine heirship in which she identified Triplett and herself, as the only heirs of Gibson.

While both the application and the heirship determination were still pending on August 18, 2015, Ward, now 

represented by counsel, filed her original answer to the application asserting that the beneficiary designation executed 

by Gibson should control the distribution of the TRS plan benefits. Ward also filed her first amended petition for 

declaratory judgment, joining Fox-Gibson, individually, and asking the probate court to declare that the beneficiary 

designation was effective, that the community portion of the TRS plan benefits was under Gibson’s management and 

control, and that Ward was entitled to all of Gibson’s separate and community property interest in the TRS plan 

benefits. Fox-Gibson, as administrator, moved to strike Ward’s first amended petition, asserting that it was untimely 

under Rule 63, filed without leave of court, and that Fox-Gibson was surprised and prejudiced by the filing. See TEX.

R. CIV. P. 63. By business records affidavit, Gibson’s beneficiary designation with TRS, naming Ward as his payableon-death beneficiary, was filed on November 25, 2015. On December 1, 2015, the probate court held a hearing on 

the application to determine heirship and the declaratory judgment petition. 

On March 17, 2017, the probate court signed its judgment and decreed, inter alia, the following:

1. The TRS [plan] Benefits are a non-probate asset. Texas Estate Code Chap 111.

. . . .

3. A member of a state retirement system may designate one or more beneficiaries to receive 

benefits payable by the retirement system on the death of the member or annuitant. Tex. Govt. Code

§ 824.101.

4. Because Gibson designated . . . Ward, as his plan beneficiary on June 1, 1989[,] and never 

revoked, amended or changed his beneficiary designation on the TRS Plan after that time, . . . Ward, 

was the designated beneficiary on the TRS Plan at Gibson’s death.

. . . .

10. As a payable-on-death beneficiary, . . . Ward, is entitled to all of the TRS [plan] Benefits.

As a result of Fox-Gibson’s request, the probate court made the following findings of fact:

1. John Breckenridge Gibson, Jr. ([Gibson])[,] died on June 26, 2011.

2. Gibson was continuously employed by the University of Texas at Dallas from June l, 

1989[,] until his death on June 26, 2011.

3. As a benefit of Gibson’s employment, Gibson was a participant in the Teachers Retirement 

System of Texas Plan (hereafter “TRS”).

4. On June l, 1989, Gibson designated Gibson’s sister, . . . Ward, as the beneficiary of any 

benefits accruing under the TRS Plan.

5. At the time of the original beneficiary designation, Gibson had no spouse.

6. Gibson married . . . Fox-Gibson on or about September 26, 2003[,] and remained married 

to her until his death.
4

 

7. Gibson never revoked, amended or changed his beneficiary designation on the

TRS Plan after June I, 1989.

8. No consent was sought or obtained by Gibson from . . . Fox-Gibson for a change of 

beneficiary on the TRS Plan.

The probate court also made conclusions of law, including that:

1. The TRS [plan] Benefits are a non-probate asset. Texas Estate Code Chap 111.

2. Beverly Ward properly brought the TRS Death Benefits issue to this court by a declaratory

judgment action related to the probate of Gibson’s estate over which this Court has subject matter 

jurisdiction. Tex. Civ. Prac. & Rem. Code Chap 37.

3. A member of a state retirement system may designate one or more beneficiaries to receive 

benefits payable by the retirement system on the death of the member or annuitant. Tex. Govt. Code

§ 824.101.

4. Because Gibson designated . . . Ward, as his plan beneficiary on June 1, 1989 and never 

revoked, amended or changed his beneficiary designation on the TRS Plan after that time, . . . Ward, 

was the designated beneficiary on the TRS Plan at Gibson’s death.

5. Because Gibson had no spouse at the time of the designation of Beverly Gibson, aka 

Beverly Ward, as the plan beneficiary, no spousal consent was required for the designation. Tex. 

Admin. Code § 73.29(a) (l ).

6. The Employee Retirement Income Security Act of 1974 (29 U.S.C. Chap. 18 )(“ERISA”) 

does not apply to state governmental employee benefit plans per 29 U.S.C. Chap. 18 §§ 1002(32), 

1003.

7. The TRS Plan is, by definition, a state governmental employee benefit plan. Ibid.

8. Because ERISA does not apply to the TRS Death Benefits, there is no requirement that any 

of the TRS Death Benefits be payable to the Surviving Spouse of the Beneficiary.

9. Any presumption that the TRS Plan Benefits were community property, which might 

otherwise be raised by Tex. Fam. Code §3.003(a), were rebutted by the proof, by clear and 

convincing evidence, of the beneficiary designation and the non-revocation, amendment or change 

after June l, 1989. (Tex. Fam. Code § 3.003(b)).

10. The TRS Plan, to the extent it accrued benefits during the marriage of Gibson and . . . FoxGibson, was the sole management community property of Gibson. (Tex. Fam. Code § 3.102(a)).

11. At Gibson’s death, any death benefits payable by reason of the death of Gibson (TRS Death 

Benefits) became payable to his named beneficiary, . . . Ward.

12. Because the TRS Death Benefits are payable pursuant to the TRS Plan to the named 

beneficiary under the plan, no domestic relations order regarding the payment of plan benefits was 
5

entered judgment that Ward, as the named payable-on-death beneficiary under the TRS plan, was 

to be paid all of the plan benefits. 

On appeal, Fox-Gibson complains that the probate court erred in failing to strike Ward’s 

allegedly late-filed petition for declaratory judgment, in its conclusion of law that the TRS plan 

benefits were separate property, and in failing to award Fox-Gibson any portion of the plan 

benefits. We affirm the probate court’s judgment because (1) considering Ward’s petition for 

declaratory judgment was not error, (2) conclusion of law number nine, though erroneous, had no 

harmful effect, and (3) Fox-Gibson’s other complaints were not preserved or were waived.

(1) Considering Ward’s Petition for Declaratory Judgment Was Not Error

In her first issue,4 Fox-Gibson complains that the probate court abused its discretion by 

failing to strike Ward’s amended petition for declaratory judgment. Fox-Gibson argues that the 

matter had been fully tried in a January 16, 2014, hearing and that the probate court abused its 

discretion in permitting Ward to amend her pleadings months later without leave of court and when 

it both surprised and prejudiced Fox-Gibson, all in violation of Rule 63. See TEX. R. CIV. P. 63

 

entered in this case and the provisions of Texas Government Code § 804.001 defining ‘alternate 

payee’ are thus inapplicable.

After the probate court filed its findings of fact and conclusions of law, Fox-Gibson did not file a request for additional 

or amended findings of fact and conclusions of law. See TEX. R. CIV. P. 298. Fox-Gibson appeals from the March 

17 judgment. 

4

In a prefatory paragraph before discussing her issues, Fox-Gibson asserts that the probate court’s errors and its signing 

deprived her of her marital property and resulted in a deprivation of her constitutional right to due process. FoxGibson cites Mayhew v. Town of Sunnyvale, which held that “a plaintiff alleging a procedural due process takings 

claim must establish that he was deprived of notice and an opportunity to be heard with respect to a decision affecting 

his property rights.” 964 S.W.2d 922, 939 (Tex. 1998). In this case, Fox-Gibson instituted the proceeding and fully 

participated through her pleadings and in the hearings on the matter. Hence, the record shows that she had both notice 

and the opportunity to be heard. To the extent this argument is asserted as a separate issue on appeal, or in support of 

her stated issues, we find that it is without merit.
6

(pleading filed after seven days before trial may be filed only after obtaining leave of trial judge, 

“which shall be granted unless there is a showing that such filing will operate as a surprise to the 

opposite party”).

We review a trial court’s decision to allow the filing of late-filed pleadings for an abuse of 

discretion. See Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 451 S.W.3d 150, 176 (Tex. App.—

Fort Worth 2014), aff’d, 505 S.W.3d 580 (Tex. 2016). A trial court abuses its discretion if its act 

is arbitrary or unreasonable, or without reference to any guiding rule or principle. Cire v. 

Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004); Gardiner, 451 S.W.2d at 176.

“The Texas Rules of Civil Procedure govern proceedings in probate matters except in those 

instances in which a specific provision has been made to the contrary.” Cunningham v. Parkdale 

Bank, 660 S.W.2d 810, 812 (Tex. 1983) (citing TEX. R. CIV. P. 2). The Texas Estates Code 

provides, “A person interested in an estate may, at any time before the court decides an issue in a 

proceeding, file written opposition regarding the issue. The person is entitled to process for 

witnesses and evidence, and to be heard in opposition, as in other suits.” TEX. EST. CODE ANN.

§ 55.001 (West 2014). Section 55.001 does not require leave of court to file an opposition and 

does not allow the probate court to deny the filing because of prejudice or surprise to a party 

opposing the filing. Compare TEX. EST. CODE. ANN. § 55.001, with TEX. R. CIV. P. 63, 66. 

In this case, the determination of whether, and to what extent, the TRS plan benefits 

consisted of community property, as well as whether Fox-Gibson was entitled to any of the TRS 

plan benefits, was initially brought before the probate court in Fox-Gibson’s application. Although 

there was a hearing on the application in January 2014, this was by no means the final hearing on 
7

these issues. The probate court, realizing that the evidence at the proceeding was not sufficient for 

it to make a ruling on the issues, required the filing of an application to determine heirship to obtain 

additional evidence before it ruled on Fox-Gibson’s application. While the heirship proceeding 

was still pending, Ward filed her additional opposition to the application by filing both her original 

answer and her petition for declaratory judgment. Since the issues regarding whether the TRS 

plan benefits contained any community property, and Fox-Gibson’s entitlement to any of the 

benefits, had not been decided, Section 55.001 of the Texas Estates Code gave Ward the right to 

file her opposition and for that opposition to be heard. Further, since Ward’s opposition was filed 

several months before the final hearing on these issues, Rule 63, which only applies to pleadings 

filed “within seven days of trial or thereafter,” was not applicable. TEX. R. CIV. P. 63.

Since Section 55.001 permitted the filing of Ward’s petition for declaratory judgment in 

opposition to the application, and gave Ward the right to be heard on her opposition, we find that 

the probate court’s actions in permitting the filing and hearing of Ward’s opposition was not an 

abuse of discretion.5 We overrule this issue.

 

5Fox-Gibson also faults the probate court’s refusal to consider her motion to strike Ward’s petition. She points to an 

exchange at a hearing on her objections to the proposed judgment, which occurred several months after the final 

hearing. However, the record of this hearing shows that, when Fox-Gibson attempted to assert her motion to strike at 

that hearing, the probate court responded that the motion had been heard at a docket control conference hearing, which 

took place over a month before the final hearing. Fox-Gibson did not include the transcript of the docket control 

conference hearing in the reporter’s record. When an appellant fails to bring forward a complete reporter’s record, 

we must presume that it would support the probate court’s assertion that the motion had been previously heard and 

decided. See Feldman v. Marks, 960 S.W.2d 613, 614 (Tex. 1996). Further, even assuming the exchange at the posttrial hearing showed the probate court refused to rule on her motion to strike, to preserve any complaint for appellate 

review, Fox-Gibson was required to object to the refusal. See TEX. R. APP. P. 33.1(a)(2)(B). The record shows she 

failed to object to the court’s refusal to rule on her motion. Therefore, Fox-Gibson has failed to preserve this complaint 

for our review.
8

(2) Conclusion of Law Number Nine, Though Erroneous, Had No Harmful Effect

Fox-Gibson also complains that the trial court erred in its ninth conclusion of law that 

“[a]ny presumption that the TRS Plan Benefits were community property . . . w[as] rebutted by 

the proof, by clear and convincing evidence, of the beneficiary designation . . . .” Fox-Gibson 

argues that, because the TRS plan benefits were in the possession of Gibson during their marriage, 

they are presumed to be community property and that Ward did not offer any evidence to overcome 

that presumption. She also argues that the probate court’s tenth conclusion of law contradicts its 

ninth conclusion of law. In addition, she challenges the factual sufficiency of the evidence

supporting the ninth conclusion of law. This resulted, she argues, in the trial court’s erroneous 

failure to order that she receive the plan benefits.

We review a trial court’s conclusions of law de novo. See BMC Software Belgium, N.V. v. 

Marchand, 83 S.W.3d 789, 794 (Tex. 2002). An “appellant may not challenge a trial court’s 

conclusions of law for factual sufficiency; however, the reviewing court may review the trial 

court’s legal conclusions drawn from the facts to determine their correctness.” Id. (citing Dallas 

Cty. v. Sweitzer, 881 S.W.2d 757, 763 (Tex. App.—Dallas 1994, writ denied)). “If the reviewing 

court determines a conclusion of law is erroneous, but the trial court rendered the proper judgment, 

the erroneous conclusion of law does not require reversal.” Id. (citing Scholz v. Heath, 642 S.W.2d 

554, 559 (Tex. App.—Waco 1982, no writ)).

Generally, the character of property as separate or community is determined at the 

beginning of that property’s ownership. Barnett v. Barnett, 67 S.W.3d 107, 111 (Tex. 2001); 

McCurdy v. McCurdy, 372 S.W.2d 381 (Tex. Civ. App.—Waco 1963, writ ref’d). “Community 
9

property consists of property other than separate property that is acquired by either spouse during 

the marriage.” McClary v. Thompson, 65 S.W.3d 829, 834 (Tex. App.—Fort Worth 2002, pet. 

denied) (citing TEX. FAM. CODE ANN. § 3.002 (West 2006)). Further, income produced by separate 

property during marriage is community property. Id. (citing Lipsey v. Lipsey, 983 S.W.2d 345, 

350 (Tex. App.—Fort Worth 1998, no pet.)). Deferred compensation plans, such as the TRS plan, 

are considered community property only to the extent they are attributable to the spouse’s 

employment during marriage. Boyd v. Boyd, 67 S.W.3d 398, 406–07 (Tex. App.—Fort Worth 

2002, no pet.). 

In this case, the trial court’s findings of fact establish that Gibson began his employment 

with the University of Dallas in June 1989 and continued his employment until his death in 

June 2011. Gibson was a member of the TRS plan for the duration of his employment. Gibson 

and Fox-Gibson were married in September 2003. Therefore, that portion of the TRS plan benefits

attributable to Gibson’s employment while he was married to Fox-Gibson is community property. 

Id. The later designation of Ward as Gibson’s beneficiary under the plan, therefore, has no effect 

on the nature of the property interest in the plan, whether community or separate. As a result, we 

agree with Fox-Gibson that conclusion of law number nine is erroneous.

That is not the end of our inquiry, however. Property passing at death pursuant to the terms 

of a contract, such as contributory retirement plans, are non-probate assets that are not subject to 

disposition by will or by the rules of intestate succession. Valdez v. Ramirez, 574 S.W.2d 748, 

750 (Tex. 1978). The disposition of these assets is controlled by lifetime transfer rules. Id. 

Further, while being earned by the employee spouse, the right to the benefits under the retirement 
10

plan is subject to the employee spouse’s sole management, control, and disposition. Id. at 751. 

This includes the right to designate how the benefits will be paid, whether at retirement or in the 

event of the employee spouse’s death. See id. By statute, a TRS plan member may “designate one 

or more beneficiaries to receive benefits payable by [TRS] on the death of the member” and file it 

with TRS. TEX. GOV’T CODE ANN. § 824.101(a) (West 2012).

In this case, the probate court also made unchallenged findings of fact and conclusions of 

law that the TRS plan benefits are non-probate assets; that the TRS plan, to the extent it accrued 

benefits during the marriage of Gibson and Fox-Gibson, was the sole management community 

property of Gibson; that Gibson designated Ward as his plan beneficiary in June 1989; that the 

designation was never revoked, amended, or changed; and that at Gibson’s death the TRS plan 

benefits became payable to Ward. The ultimate judgment of the probate court, then, was that the 

TRS plan benefits were payable to Ward as the designated beneficiary under the plan. These 

unchallenged findings and conclusions, as well as the judgment of the probate court, are consistent 

with the Supreme Court’s holdings in Valdez. Therefore, since the probate court entered the proper 

judgment, its erroneous conclusion of law does not require reversal. Marchand, 83 S.W.3d at 794. 

We overrule this issue.

(3) Fox-Gibson’s Other Complaints Were Not Preserved or Were Waived

Finally, Fox-Gibson asserts that the probate court erred in denying Fox-Gibson any portion 

of the TRS plan benefits. Fox-Gibson argues that the probate court should have found that she 

was entitled to a portion of the TRS plan benefits by reason of (1) the improvements to the benefits 

during her marriage to Gibson, (2) a right to reimbursement, and (3) the portion accrued during 
11

marriage. First, Fox-Gibson did not assert a cause of action asserting a theory of recovery based 

on either a right of reimbursement or improvements to the TRS plan benefits during marriage. 

Since she did not assert those theories of recovery in the probate court, the complaints were not 

preserved for our review. See TEX. R. APP. P. 33.1(a)(1) (requiring a timely request to the trial 

court as a prerequisite to presenting a complaint for appellate review).

Fox-Gibson did assert her right to a portion of the TRS plan benefits accruing during her 

marriage to Gibson in her application. However, after the probate court entered its findings of fact 

and conclusions of law that did not contain any determination of what portion, if any, of the TRS 

plan benefits was community property, Fox-Gibson did not request additional findings of fact and 

conclusions of law. By failing to timely request additional findings and conclusions, Fox-Gibson 

forfeited her complaints related to the trial court’s failure to determine what portion of the plan 

benefits was community property or her entitlement to them. See Friend v. Friend, No. 02-15-

00166-CV, 2016 WL 7240596, at *3 (Tex. App.—Fort Worth Dec. 15, 2016, no pet.) (mem. op.); 

Villalpando v. Villalpando, 480 S.W.3d 801, 810 (Tex. App.—Houston [14th Dist.] 2015, no pet.) 

(“The failure to request amended or additional findings or conclusions waives the right to complain 

on appeal about the trial court’s failure to make the omitted findings or conclusions.”).

We overrule this issue.
12

For the reasons stated, we affirm the judgment of the probate court.

Josh R. Morriss III

Chief Justice

Date Submitted: October 13, 2017

Date Decided: October 25, 2017