TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00353-CV

Olavie Hall, Appellant

v. 

Donna Hall Keith, as Executor of the Estate of Donald Alfred Hall, Deceased, Appellee

FROM THE PROBATE COURT NO. 1 OF TRAVIS COUNTY

NO. C-1-PB-06-085239, THE HONORABLE GUY S. HERMAN, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

 Olavie Hall appeals the Order for the Sale of Estate Property Incapable of 

Division. Appellant contends that the trial court erred by failing to determine whether the 

properties were Appellant’s sole-management community property. We will affirm the order. 

 In a previous appeal, this Court affirmed a declaratory judgment construing 

Decedent Donald Alfred Hall’s will in which the trial court concluded that Decedent bequeathed 

his undivided community interest in twenty-two parcels of real property to persons other 

than Appellant, his surviving spouse. See Hall v. Estate of Hall, No. 03-19-00943-CV, 

2021 WL 5220481, at *1 (Tex. App.—Austin Nov. 10, 2021, no pet.) (mem. op.). This appeal 

challenges the trial court’s order signed April 29, 2021, in which that court found that several 

Estate real properties were not capable of a fair and equal partition. The court ordered the 
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properties sold and gave Executor Donna Hall Keith authority to sell them—including the 

one-half community interest belonging to Appellant.

The Texas Family Code and the Estates Code guide characterization of property 

owned by married people and distribution of that property upon a spouse’s death. Texas Estates 

Code § 453.009 provides as follows: 

(a) A qualified personal representative of a deceased spouse’s estate may 

administer:

(1) the separate property of the deceased spouse;

(2) the community property that was by law under the management of the 

deceased spouse during the marriage; and

(3) the community property that was by law under the joint control of the 

spouses during the marriage.

(b) The surviving spouse, as surviving partner of the marital partnership, is 

entitled to:

(1) retain possession and control of the community property that was 

legally under the sole management of the surviving spouse during the 

marriage; and

(2) exercise over that property any power this chapter authorizes the 

surviving spouse to exercise if there is no administration pending on the 

deceased spouse’s estate.

A spouse’s separate property includes property owned or claimed by the spouse before marriage;

property acquired by the spouse during marriage by gift, devise, or descent; and recovery for 

personal injuries sustained by the spouse during marriage, except for recovery for loss of earning 

capacity during marriage. Tex. Fam. Code § 3.001. Community property is all other property

acquired by either spouse during the marriage. Id. § 3.002. Property possessed by either spouse 

when the marriage ends is presumed to be community property unless proven otherwise by clear

and convincing evidence. Id. § 3.003. This presumption applies not only to dissolution by 
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divorce, but also by death. Irvin v. Parker, 139 S.W.3d 703, 708 (Tex. App.—Fort Worth 2004, 

no pet.); Smith v. Lanier, 998 S.W.2d 324, 331 (Tex. App.—Austin 1999, pet. denied).

Community property is further divided between sole-management and 

joint-management community property as follows:

(a) During marriage, each spouse has the sole management, control, and 

disposition of the community property that the spouse would have owned if 

single, including:

(1) personal earnings;

(2) revenue from separate property;

(3) recoveries for personal injuries; and

(4) the increase and mutations of, and the revenue from, all property 

subject to the spouse’s sole management, control, and disposition.

(b) If community property subject to the sole management, control, and 

disposition of one spouse is mixed or combined with community property subject 

to the sole management, control, and disposition of the other spouse, then the 

mixed or combined community property is subject to the joint management, 

control, and disposition of the spouses, unless the spouses provide otherwise by 

power of attorney in writing or other agreement.

(c) Except as provided by Subsection (a), community property is subject to the 

joint management, control, and disposition of the spouses unless the spouses 

provide otherwise by power of attorney in writing or other agreement.

Tex. Fam. Code § 3.102. Section 3.102 creates a rebuttable presumption that community 

property is subject to joint management, control, and disposition. Miller v. Cadle Co., 

No. 06-08-00130-CV, 2009 WL 635158, at *3 (Tex. App.—Texarkana Mar. 12, 2009, no pet.)

(mem. op.); see also Ex parte Kienlen, No. 02-22-00154-CR, 2022 WL 15053326, at *4 (Tex. 

App.—Fort Worth Oct. 27, 2022, no pet.) (mem. op.) (unless exception applies, “community 

property is subject to the joint management, control, and disposition of the spouses”).
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Appellant contends that the trial court erred by authorizing Executor to sell

Appellant’s community-property interest in properties owned jointly by Appellant and the Estate 

without determining if any were Appellant’s sole-management community property.1 Appellant 

does not contend on appeal that the properties are her separate property and expressly does not 

contend that the properties are capable of partition in kind.

In concluding that the Executor had the power to sell the properties in the order,

including Appellant’s one-half community interest, the trial court necessarily implicitly found 

that the community property was not under Appellant’s sole management during the marriage

and, thus, that Appellant was not entitled to retain possession and control of it. See Tex. Est.

Code § 453.009(b)(1) (surviving partner of the marital partnership entitled to retain possession 

and control of survivor’s sole-management community property).

The characterization of marital property is a conclusion of law. Kelly v. Kelly, 

634 S.W.3d 335, 352 (Tex. App.—Houston [1st Dist.] 2021, no pet.). We review whether that 

conclusion is correct based on the facts of the case. Stavinoha v. Stavinoha, 126 S.W.3d 604, 

608 (Tex. App.—Houston [14th Dist.] 2004, no pet.). We will uphold a trial court’s conclusions 

of law if the judgment can be sustained on any legal theory supported by the evidence. Id. 

Whether a party has overcome a presumption regarding the characterization of marital property 

as community property is a question of fact. Smith, 998 S.W.2d at 331; see also Tex. Fam. Code 

§ 3.003(b) (requiring clear and convincing evidence to overcome presumption that marital 

property is community property). Clear and convincing evidence is proof that produces a 

1 Executor contends that Appellant waived this appellate issue by not expressly pleading

or trying by consent at the trial court her claim that at least two of the listed properties were her 

sole-management community property. In the interest of justice, we will assume without 

deciding that she did not waive this appellate claim and address its merits.
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factfinder’s firm belief or conviction as to the truth of the allegations to be established. 

Tex. Fam. Code § 101.007. This standard is generally not met when testimony about the 

separate nature of funds is not supported by documentary evidence tracing the asserted separate 

nature of funds. Zamarripa v. Zamarripa, No. 14-08-00083-CV, 2009 WL 1875580, at *3 (Tex. 

App.—Houston [14th Dist.] June 30, 2009, pet. denied) (mem. op.).

The trial court did not err because Appellant presented no evidence to overcome 

the presumption that the property owned by Decedent and Appellant when their marriage was 

dissolved by Decedent’s death was joint-management community property. Appellant does not 

dispute that the properties ordered sold were owned by Appellant and Decedent at his death. The

properties are thus presumed by law to be community property that was subject to joint 

management. See Tex. Fam. Code §§ 3.003, .102(c). Before testimony began, Appellant and

her counsel discussed with the trial court the contention that a property was her separate 

property; that discussion was not sworn testimony, and Appellant does not urge the 

separate-property theory on appeal. Further, there is no documentary evidence tracing the

asserted separate nature of any funds used to purchase the property. Thus, Appellant did not 

provide clear and convincing evidence to overcome the presumption that the properties are 

Appellant’s joint-management community property. See Zamarripa, 2009 WL 1875580, at *3.

The trial court did not err by concluding that the properties in the order were not under 

Appellant’s sole management during the marriage.
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Appellant has shown no error in the trial court’s order. We affirm the trial court’s

Order for the Sale of Estate Property Incapable of Division.

__________________________________________

Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Kelly and Smith

Affirmed

Filed: February 28, 2023