## In the Court of Appeals Second App ellate District of Texa s at For t Worth

___________________________ No. 02

- 20

- 00211

- CV

___________________________

On Appeal from the County Court Parker County, Texas Trial Court No. 18P318

Before Sudderth, C.J.; Bassel and Walker, JJ. Memorandum Opinion by Justi ce Bassel 

### I N THE 

### M ATTER OF THE 

### E STATE OF 

### M ICHAEL 

### S HANNON 

### C LARK 

### II, D ECEASED2 MEMORANDUM OPINION
I . Introd uction
This is an appeal from a n order entered by a county court exercising probate jurisdiction

. See Tex. Est. Code Ann. § 3 2

. 002(a)

. 1 Appellant Amy R. C lark is the
survi vi ng spouse of the estate’s decedent an d se rved as depe ndent administrator of
the e state before she w as removed fr om that role by the county court

. This appeal
involve s narrow question s of (1) whether the county court erred by vacating an order that provided Clark a family allowance with out giving Clark notice of the court ’ s intent to d o s o and an opport unity to argu e why the order shou l d not be vacated and (2) whether the county court lacked jurisdiction and statutory authority to vacate the
order. W e have before us only Clark’s argument s because no A ppelle e s ’ brief was filed by the h e irs

. We sustain C lark ’ s second issue and conclude tha t the c ounty court deprived her of due process by not giving her notice that t he court would consider

vac ating the family

- allowance order

. We do not re solve Clar k’s first issue chall enging the county c ourt ’ s jurisdictio n to vacate t he family

- allowance order nor her third issue

a rguing t hat t he cou n ty court had no statutory aut hority to vacate t he order on its
own motion

. See Tex. R. App. P. 47 .1. Accordingly, ba sed on the sole issue that we address an d sustain, we reverse the county court ’ s Apri l 3 , 20 20 ord er vac ating its

1 Se ction 32.002(a) provides that “ [i] n a county in which th ere is no statutory probate court or county c o urt at law exercisi ng original probate jurisdiction, t he county court has ori ginal jurisdiction of proba te proceed ings. ” Tex. Est. Code An n. § 32.002 (a).3 June 2 1, 2019 family

- al lowance order , and we remand this matter to t he county court for further proceedings.
II. Factual and Procedural Backg round
T he cler k ’ s record in th i s matte r appears to contain all the relevant filings f rom the proba te of the decedent ’ s estate , and we use i t to chart the path of the underlyi ng proceeding s . C lark was appointed d ependent a dminist rator of the estate of her late
husband

. Other heirs initially con tes ted Cl a rk ’ s appointment and filed a

counter application to be appointed dependent co

- admini str ator s . The other heirs
later w ith dre w their application

. During t he year follo wing Clar k ’ s appointment as dependent ad ministrator , she filed an inventory and various applications to sell or abandon property

. The county court ent ered orders a p proving th e inventory and the
various requests to dispo s e of or to d istribu te property
. One of the applications filed d uring t his p eriod sought payment of a family
allowance to Cla rk

. Th e family

- a llowance a pplication sought a n allowance for C l ark

as t he decedent ’ s survi ving spouse b ut stated th at social security payments provided
sufficient support for the child born o f the dec ed e nt and Clark ’ s marriage. The application stated th at Clark should receive the estate ’ s sh are of c ertain real and personal prope rty in payment of the family allowance, in cluding r eal pro perty that was
described as having a value of $275,000 and a total equity of approximately $180,000

. I n a ddi tion to t he property listed in the family

- a llowance application, Clark so ught an
addit ional allowance of approximatel y $40,000 in c ash

. The Co unty J udge si gned an4 “ O rder for F amily A llowance ” on June 2 1, 2019, which gra nted the re lief re quested in
the family

- allowance applicati on. That or der provided par t ial payment of the family
allowance ; C lark was to recei v e $ 90,0 00 from t he sale of the estate ’ s share of the real
p rop erty listed in the family

- a llowance applicati on an d $40,379 in cash as funds
bec am e available

. After filing the family

- allowance application, Clark a lso filed an application to sell th e listed real property
. On t he same date that the county court
si gned the f amily

- all owance order, i t also si gned an orde r for the sale o f th e real
property
. Several months after the entr y of the family

- allowance order , the county court beg an entering orders indicating that s omething had gone awry in the est ate ’ s adminis tratio n . A report of the sale of the real propert y des cribed in the family

allowance application wa s filed and indicated that the p roperty had sold for $460,000

— an amount in excess of the $ 275,000 value listed in both t he fam ily

allowan ce app lication and the inven tory fi led after the o rd er authorizing the sa l e of

t he pro perty was signed. The re port indicated that the net proceeds f rom the sale
totaled approximately $ 342 ,000 , which ( after deduction of Clark’s community one

half in teres t in those pr oceeds ) l eft proceeds of approximatel y $ 171,000

— an amount
wel l in excess of the $ 90,000 in equity an d $40,379 in cash that the family

- allowance order provided for Clark . T h e report stated that “ [t] he proceeds from the sale of the
prop erty shall be paid t o AMY R. CLARK, as pa rtial pay ment of the [f] amily [ a] llowance a ppro ved by the [c] ourt on June 2 1, 20 19. ”5 The c o unty court entered a decr ee confirming the sale of the real p roperty
. I n

one provision , the decree provided “ that all proceeds f rom such sale be paid dir ectly to AMY R. CLARK as partial paymen t of the amount d ue her pu rsu a n t to the [ f] amily [a] llowance approved by t his [c] ourt
. ” But the decree also con tained a provi sion that
app ears to have been added by the county court : “ P roceeds of sa le shall be placed in
the [r] egistry of t he [c] ourt i mmediately as proc eeds are received

. ” On the same day
that th e county court signed t he decree approving the sale of the real property , it signed an order vac ating that decree. Three day s later, on April 3 , 20 20 , the county

cou r t signed an order vac ating its prior f amily

- a llow ance order. This vacatin g order provided tha t “ [a] hearing will be he ld on setting the amount. ”
The county court then signe d a n ew order con firmin g t he sal e of th e real
pr operty . The new ord er con ta ined a provision stating , IT IS FU RTHER ORDERED, ADJ UD GED, AND DECREED that all proceeds from su ch sa le be paid as follows:
1. One

- half of the tot al proceeds to AMY R. CLARK as her community interest in such prope rty; and
2. The balance shal l be place d in the Parker Cou nty Registry of t he Court immediate ly as p roceeds are received.
Clark cha lle nged th e county court ’ s order vacat ing the family

- allowance order
b y filing a motion (also styled a s a motion for new tr ial) to vacate it

. T h is motion
contend ed tha t the coun ty co urt could not vacate the fami ly

- al l owance orde r becau se it was a f inal order in the context of the probate proceed ing and that it v iolated public6 p olicy to re tr ospective ly vacate a family

- allowance o rder. The county court denied th e

mot ion

. I n the inte rim between the filing of the motion to vacate the order vacati n g the family

- allowance order and the si gning of the or der denyin g that motion , t he c ounty

c ou rt signed a show

- cause order is sued on its own motion to determine whether C lark
should be removed a s “ [ d ] epend en t [ e ] xecutri x [sic]

. ” On the same day tha t the

c ounty c ourt denied Clark ’ s motion challenging the order vacati ng the family

a llowan ce orde r, the co unty court removed her a s dep ende nt administra tor and appointed a s uccessor administrator

. Clark filed a notice o f appeal dir ected a t the order vacating the family

- allowance

or der

. A few days after the notice of app ea l was filed , some he ir s of the estate filed a

res pons e to the appeal , alleg ing that Cla rk had mismana ged the esta te and had exaggerated t he claims that were the b asis of the origina l order granting the family
allowance. 2

2 Chapter 353 of the Estat es Co de governs family allowan ces. Section 3 53.101 of the E states Code p rovides that
i mmediat ely after the inventory, appraiseme nt, an d list of cla ims of an estate are approve d or after the affidavit in lieu of the inventory, appr aisement, and list of cl aims is filed, the court shall fix a family
a llowance for th e support of the decedent ’ s survivi ng spouse, minor children, and adul t inca pacitated chi ldren.
T ex. Est. Code Ann. § 353.101(a ). The Estates Code also p rovides that a s urviving spouse may file an app lication , and at the hear ing of the app lication, the ap plicant7 III. Analysis
A. We set forth the stan dard s of notice required by due proc ess.
In her second issue, Cla rk contends that the coun ty court violated her due process rights by failing to give notice that it int ended t o consider v acat ing the fami ly

a llowa nce order and by failing to giv e her a n op portunity to be heard on the issue
be fore vacating the family

- allow ance order

. We ag ree and remand this matter to the
county court to conduct a hear i ng on the questi on of whether t he court has jur isdiction to v acate the family

- allowance ord er and wh ether it should vacate the
ord er a fter according Clark notic e and an oppo rtunity to be heard on these issues.

bears the burden of proof. Id. § 353.101(b) , (c). The Estate s Code sets forth the following criteria for setting the amou nt of the allowance : ( a) The amount of th e family allowance must be su fficient for the maintena nce of the decede nt ’ s survi ving spouse, minor children, and adu lt incapacitated children for one y ear f rom the date of t he decedent ’ s death. ( b) The allow a nce must be fixed w ith r egard to the facts or circumstances then existi ng and the facts and circums tan ces anticipated to exist during the fi rst year after the dece dent ’ s death. (c) The all owance may be p aid in a lump sum or in installments, as ordered by the co urt. I

d

. § 353.10 2 . After the amount of the allowance has been fixed , the Estates Code requir es the court to enter an ord er that “(1) states the amount of th e allowance [ ,] (2) provides how the allo wan ce shall be payable [,] and (3) directs the execu tor or ad ministrator to p ay the a llowance in accordance with law.” Id. § 35 3.103. Other provisions of Chapter 353 establish the preference f or payment of the allow anc e, how the allowance is paid, th e pro pert y from which the allowance may be sa tisfie d, a n d when property may be so ld to s atisfy the allowance. Id. § § 353. 104

– . 107.8 The T ex as Supreme C ourt has ex plained why notice is a vital c omponent of due p rocess as follows:
Mos t cri tically, a la ck of not ice violates basic principles of due process. S ee P eralta v. Heights Med. Ctr ., Inc. , 485 U.S. 80, 84, 108 S. Ct. 896, [ 899 ] (1988) (explaining that a “[f]ailure to gi ve notice violates [ ‘ ] t he mos t rudim entary demands of d ue proc ess of law [ ’ ] ” ( quotin g A rmstrong v. Manzo , 380 U.S. 545, 550, 85 S. Ct. 1 187, [1190 ] (1965))). Due proces s de mands that a party be afforded “an oppor tunity to be heard at a meaningful time and in a meaningful manner .” U niv. of Tex. Med. Sch. at Hou s . v. Than , 90 1 S.W.2d 926, 930 (Tex. 1995) (citing Mathews v. Eldridge , 424 U.S. 319, 333, 96 S. Ct. 893, [902 ] (1976)). Highsmith v. Highsmith , 587 S.W.3d 771, 777

– 78 (Tex. 2019) ; see also Mosley v. Tex. Health
& Hum an Ser vs. Comm ’ n , 593 S.W.3d 2 50, 264 (Tex. 2019) ( s tating that T e xas follows precedent interpreting the fede ral constitution’s F ourteenth A mendment when interpreting Texas ’ s due

- cour se

- of

- law p rovision c ontained in Article I , S ection 19 of
the T e xas Co nstitu tion ). I n deed, we recent ly quoted the F irst Cour t of Appeals for its

con cise statement explaining why a t rial court ’ s failure to give n otice constitutes a depriva tion of due process: “A trial court ’ s failure to comply with notice rules in a
contested ca s e deprives the defendant of hi s constitution al right t o be present at the
hear ing, to voice objections in an a ppropriate manner, and res ults in a violation of
fundament al due process.” M.B. v. R .B. , No. 02

- 19

- 003 42

- CV , 2021 WL 2252792, at *5 (Tex. App.

— Fo rt Worth June 3, 2021, n o pet. h. ) ( mem. op. ) (quotin g Hildebrand v. Hildebrand , No. 01

- 18

- 00933

- CV, 2020 WL 4 118023, at *4 (Tex. App.

— H ou ston [1st Dist.] July 21, 2020, no pet.) ( mem . op.) )

.9 The Texas Supreme Court has held in the context of probate proc eedings that

“ procedural due process ‘ requ ires noti ce that is reasonably calculated to inform parties of p roce edings which may directl y and adversely affect their legally protected
interests

. ’ ” Cunningham v. Parkdale Bank , 660 S.W.2d 810, 813 (Tex. 1983)

. Though they are not precise analogies to the s itu ation before us , whe n a court takes the significant ste ps o f dismissing a pa rty ’ s c laim o r s anction ing a party for misconduct , the party has a right to notice , and a su a sponte disposition is improper

. Fo ster v.
Foster , No. 02

- 20

- 003 27

- CV , 2021 W L 2373329 , at * 7 (T e x. App

. — Fort Worth June 10, 2021, no pe t. h.) (me m. op.) ( holding that su a sponte dismissal of a part y ’ s claims

was improper ); Griffin v. Am. Zurick I ns. Co. , No. 05

- 19

- 00630

- CV , 2021 WL 1558736 , at * 5 (T e x. App.

— Dallas Ap r
. 21, 2021, no pet. h.) (mem. op.) ( holding that dismissal for want of p r osecution requires advance notice ) ; I n re S w. P u b. Serv . Co. , N o. 13

- 19

- 0 0111

- CV , 2020 WL 1887762 , at * 25 (Tex. App.

— Corpus Christi

– Edinburg Apr

. 16,
202 0 , orig

. proceeding) (mem. op. ) ( “ The rules a nd due pr ocess require notice and [a] hearing before t he imposi tion of sanctions. ” ). Furthe r , it appears that the notice provisions of the T e xas Rule s of Civil Procedure apply to probate proceeding s unless
there is a specific rule to the cont rary
. See Cu nningham , 660 S.W.2d at 81 2 ( “ The Texas
Rules of Civil Procedure gov ern proce edings in proba te matters except in those instances in which a specific provision h as been made to the contrary. ” (citing Tex. R.
Civ. P . 2 ) ) ; In re Estate of Hoelzer , 310 S.W.3d 899, 9 02 (Tex. App.

— Beaumont 2010,10 pet. denied) ( “ T he Texas Rules of Civil Procedure apply in prob ate matters unless the rules conflict with specific provisions in the Probat e Code. ” )

. O n the issu e of notice , we presum e tha t trial courts hear matte r s on ly after
ha ving g iv en prop er notice. See Hilde br and , 20 20 WL 4118023 , at *4

. “ To rebut this
presum ption, an appellant must affirmatively show a lack of notice, whi ch genera lly requires affid avits or other compete n t evidence s howing that he did not r eceive
proper notic e. ” I d

. B. Clark was entitled to notic e b efore the county cou rt vacated the family

- al lowance order.
O n the question of whether Clark was entitled to notice , we do not know what prompted the county c ourt to vacate the family

- allowance order. Two e vents appear to coincide with the entry of the o rder vacating the fa mily

- allo wance order : ( 1) the real property referenced in the family

- allowance order was sold for a higher pric e than
the market value it was represented to have in the family

- allowance appli cation , and ( 2) some thing prompted the court to remove C lark as dependent administrator.
Whatever its reas on ing for vacating the family

- allowance order, which had been
entered months be fore and whic h h a d accorded Clark rights in specific property that was part of the estate, the county court shou ld hav e given notice t o Clark before hand
to al ert her that it was considering vacating the order that gave her those rights and to
allow the opp ortunity to make her argum ents regardin g why the court should not rescind its prior order.11 C

. T he record adequatel y establishes that C lark d id n ot receive not ic e . As to whether Clark proved that she di d not receive notice , she p resented no affidavit st a ting tha t the cou n ty c ourt had failed to give notice so that she co u ld voice
her objection t o the court ’s act ion o f wit hdrawing th e allo wan ce order. But in t h i s case, th e clerk appears to have included in the cl erk ’ s recor d every relevant docu ment
that was file d in t he p robat e pr oceedin g . Nothing in the pleadings in cluded in the record, o n th e included docket sheet, or in the included cas e summary indicates tha t
the county court gave n otice of an inten t to vacate the family

- allowance order or
accorded C lark an oppo r tuni t y to be heard before it took that act ion. Further , the order vacating the family

- allowance order cont ains no recitation t hat t he order was

ente red after notice to Clark or a hea ring

. I n stead, the order recit es only that “ [a] hearing wi l l be held on setti ng th e amoun t , ” w hic h apparently mean s th at the county

court w ould hold a hearing to set a new amount for th e family allow ance. Generally, c ou rts presume that a trial court acts o nly after giving notice , and in
matters such as a bill of review , if th e reco rd is silent that notice was given , there is no

error on the face of the record. Richardson v. Sims , No. 01

- 15

- 01115

- CV, 2016 WL 5787291, at *2 (Tex. App.

— Houston [1st Dist.] Oct. 4, 2016, no pet.) (mem. op.). Thus, “[a] n appellant who alleges failure to give proper notice of trial carries a heavy
burden [] because the record will usually be barren of aff irmat ive proof of th is type of

error. ” Id. Also, appellate courts can often look to a recitation in a judgment that12 notice was given , and such a recitat ion p rovides “some evidence that proper notice was given.” Id

. But there is no presumptio n of notice in a def ault

- judgment situation , and “[i] n an attack upon a default judgment, [even ] a recitation of due service in the judgment does not lead to a presu mption of due service. ” Lease Fin. Grp., LLC v.
Childers , 310 S.W.3d 120, 125 (Tex. App.

— F ort Worth 2010, no p et.). Here, there is no recitation of notice in the order vacating the family allowance. Also, although this is not a default situation, a party had r ights

— which were
establishe d by an order entered months earlie r

— adjudicated so that they no longer

ex isted. The circumstances before us present a unique situation where a court has entered an order sua sponte that divests Clark of rights provided in an order entered
months earlier, and neither the clerk’s record no r the order itself pro vides any suggesti on that Clark was given notice that this act ion might be taken. We conclude that this combination of unique circumstances provides some competent ev iden ce that the county court took its action without notice to Clar k

. 3

3 In her first issue, C lar k a rgues tha t the county cou rt lacked j ur isdiction to vacat e the family

- allowance order because it was a n appeala ble order under the standards for determin ing finalit y of an order in a prob ate proceeding and beca use the time for ap p eal ing the o rder had pas sed

. See In re Guardianship of Macer , 558 S.W.3d 2 22, 22 6

– 2 7 (Tex. App.

— Houston [14th Di st.] 2018, no pet.) ( stating that “ to determine whether a probate court order is final for pu rposes of appeal, we first give controlling effec t to an express statute d ecl aring the phase of the proba te proceeding t o be fin al and appealable ” and that “[i] f n o exp ress statute co ntrols, a probate court order is fin al and appeala ble onl y if it ‘ dispose[s] of all p arties or issues in a particular phas e of the proce edings ’ ” ( c iti ng an d quoting De Ayala v. M ackie , 193 S.W.3d 5 7 5, 578

– 7 9 (Tex. 2006) (op. on reh ’ g) ) )

. Clark also c ite s a number of older T e xas case s holding tha t an all ow ance order is a f inal ord er. See Butler v. Summers , 248 S.W.2d 227,13 I V. Conclusion
W e sustain C lark’s second issue and hold tha t the county court erred by vacating the Jun e 21, 2019 family

- allowance order with out giving Clark notice that the

court was cons idering vacating th e family

- allo wance order and witho ut giving her an opportuni ty to present ar gument and evidence on the questi on of why th e fa mi ly

23 0 (Tex. App.

— Dall as ), rev ’ d on other grounds , 253 S.W.2d 4 18 ( Tex. 1952 ) ; Story v. Story , 154 S.W.2d 8 81, 8 82 ( Tex. App.

— Dal las 1 941 , no writ); M. Garcia Gomez & Cham pi on v. Longori a , 142 S.W.2d 584 , 585 ( Tex. App.

— San Ant onio 1940, writ dis m ’ d judg m ’ t cor
. ); King v. Ba ttaglia , 84 S. W. 839 , 843 ( Tex. App. 1905, writ ref ’ d

)

. This line of a uth ority is not without exception

. See Bu tler , 253 S .W.2d at 42 1

– 22 ( permitting challenge to f inal allowance order when application for allowanc e misrepresented homestead chara cte r of p r operty ). F ur ther, more recent authority not es that al though
a probate order may be fin al for purposes of ap pea l, t he order m a y remain in terlocutory such tha t the pro bate court retains plenary jurisdiction to reconsi der it

. See Estate of H arris , No. 02

- 1 9

- 00333

- C V , 20 21 WL 832721 , at *5 (T e x. App.

— Fo rt Wort h Mar

. 4, 2021, p et. denie d ) (mem. op.) ; Guardiansh ip of Macer , 55 8 S.W.3d at 2 31

. Contra I n re Doggett , N o . 12

- 19

- 00300

- CV , 2019 W L 5956676 , a t * 4 (T e x. App.

— Ty ler Nov. 13, 2019, orig. proceeding ) (mem. op.) ; E sta te of Brazda , 582 S.W.3d 717, 731 (Tex. App.

— Houston [1st Dist.] 2019, no pet.) ; In re Jacky , 506 S.W.3d 550 , 555 (T ex . App.

— Houston [1st Dist.] 2016, orig. proceeding)

. At this point, we cannot glean from the record the county court ’ s reasons for vaca tin g the allowance order , i

. e. , w het her it was simply a cting to enforce it s prior order in view o f t he subsequent event s or was issuing an order inconsistent with the original family

- allowance order. See Doggett , 2019 WL 5956676, at * 4 ( “ And altho ugh a tr ial c ourt has the authority to enfor ce its judgment after plenary power expires, ‘ th e trial cou rt ma y not issue an orde r that is inco nsistent with the judgment or that otherwis e constitutes a material change in the substantive adju dicative portions of the jud gm ent. ’ ” ). Thus, we lack the inf ormation necessary to render a judgment on the jur isdiction al qu estion , and we rema nd the case for Clar k to be able to pres ent her jurisdict ional argument to the
coun ty c ourt. Se e Tex. R. App. P

. 43.3 (a) ( “ W hen reversin g a t rial court ’ s judgment, the cour t must render the judgment that the trial court should ha ve rend ered, except when

. . . a remand is necessa ry for further proce edings [

. ] ” ).
Nor do we reach Clark ’ s third issue contending tha t th e county court lac ks the sta tut ory auth ority to vacate a n all owance order on its own motion. Again, th at is an is s ue that should firs t be considered by the county court after Clark is given notice

.14 allowance order could or should n ot be vacated

. We reverse the county court ’ s April 3 , 20 20 order vac a ting its June 2 1, 2019 family

- al lowa nce order , and we remand
this matter to t he county c ourt for fu rther proceedings consistent with th is opinion

. /s/ Dabney Bassel
D a bney B assel J ustic e
D e livered: July 15, 2021