In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-19-00127-CV 

________________________

DOUGLAS A. DENTON, APPELLANT 

 

V. 

 

BILL WIGGINS, ADMINSTRATOR OF THE 

ESTATE OF ESTHER ABELL DENTON, APPELLEE 

 

 

On Appeal from the County Court 

Midland County, Texas 

Trial Court No. P14779; Honorable Marvin L. Moore, Presiding 

 

September 23, 2020 

 

MEMORANDUM OPINION 

 

Before PIRTLE, PARKER, and DOSS, JJ. 

This appeal is the inevitable extension of a legal saga spanning four appeals, over 

fourteen years, in an estate matter in which Appellant, Douglas A. Denton, proceeding 

pro se, alleges errors in the estate’s inventory, appraisement, and list of claims and in 

which he has declined to accept certain bequests from his mother’s estate. After three
2

unsuccessful appeals in the Eleventh Court of Appeals, he now appeals from two more 

orders of the trial court: (1) an Order Denying Douglas A. Denton’s Motion for Declaratory 

Judgment Regarding the Rights of Douglas A. Denton to Review, Copy, and Possess the 

Records of the Administration of this Estate and (2) an Order Denying Douglas A. 

Denton’s Plea to the Jurisdiction.1 Denton’s “plea to the jurisdiction” was, in fact, a motion 

to constitutionally disqualify certain judges and have their orders declared null and void. 

By six issues in his original brief, Denton questions whether (1) Judge Marvin Moore 

committed reversible error in determining whether he had jurisdiction to rule on the plea 

to the jurisdiction; (2) the trial court erred in failing to file findings of fact and conclusions 

of law after they were properly requested; (3) the trial court improperly proceeded to 

judgment as a matter of law on his motion for declaratory judgment when there were 

disputed issues of material fact; (4) the trial court improperly proceeded to judgment as a 

matter of law on his plea to the jurisdiction when there were disputed issues of material 

fact; (5) the trial court unreasonably restricted discovery in relation to his plea to the 

jurisdiction; and (6) the trial court was biased in favor of Appellee, Bill Wiggins, and his 

counsel, and against him, which resulted in erroneous rulings and deprived him of due 

process of law. After Wiggins filed his original brief disputing Denton’s contentions, 

1 Originally appealed to the Eleventh Court of Appeals, sitting in Eastland, this appeal was 

transferred to this court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T 

CODE ANN. § 73.001 (West 2013). Should a conflict exist between precedent of the Eleventh Court of 

Appeals and this court on any relevant issue, this appeal will be decided in accordance with the precedent 

of the transferor court. TEX. R. APP. P. 41.3. 
3

Denton filed a reply brief essentially reiterating the issues in his original brief.2 We affirm

in part and reverse and remand in part.

BACKGROUND

Esther Abell Denton, a widow, died in 2006. Her Last Will and Testament named 

four co-executors: her only child, Douglas A. Denton, her stepdaughter, Jo Denton Tuck, 

her great niece, Karen Wiggins Dowler, and her great nephew, Bill Wiggins. Although 

Denton is the primary beneficiary of his mother’s estate, the will left real property, 

including mineral interests, in equal shares to Denton and Tuck. The residuary estate 

was left in trust for Denton. On February 9, 2006, the four co-executors applied for 

issuance of letters testamentary. 

Several weeks later, Tuck, Dowler, and Wiggins filed an Amended Application for 

Probate of Will and For Issuance of Letters of Administration with Will Annexed requesting 

that Denton be deleted as an applicant and that Wiggins alone be appointed administrator 

of the estate due to conflicts with Denton. The applicants also requested that the trial 

court supervise the administration of the estate. At that time, Wiggins alone was 

appointed administrator. 

In 2007, the original inventory of assets was filed and approved by the trial court. 

Later that year, Wiggins filed an application to distribute the oil and gas properties in equal

2 The purpose of a reply brief is to elaborate on the original issues or to reply to an appellee’s brief, 

not to restate arguments previously made. See TEX. R. APP. P. 38.3. See also Mann v. Gabriel, No. 11-

10-00265-CV, 2012 Tex. App. LEXIS 5569, at *4 (Tex. App.—Eastland July 12, 2012, no pet.) (mem. op.). 
4

shares to Denton and Tuck and a month later, he amended the application to request 

distribution to Tuck only because Denton did not wish to receive his share at that time.

In November 2009, Wiggins filed an application to distribute and to close the 

estate. The application provided that all debts had been paid, a federal estate tax return 

had been filed, and the Internal Revenue Service had issued a closing letter. The 

application also recited that Denton had refused distribution of his share of oil and gas 

interests and had refused to cash a check from the administrator for $578,629.54.

On December 3, 2009, Denton filed his objections to the original inventory on the 

ground that it omitted certain mineral interests and contained errors. He also objected to 

Wiggins’s annual account from February 1, 2009, to January 31, 2010. He sought 

extensions to independently investigate the estate’s interests. 

Wiggins amended the inventory and annual account on August 10, 2010, and 

Denton continued with his objections. Later in 2010, Wiggins filed a supplemental 

application to distribute and close the estate noting that the amount of Denton’s uncashed 

checks had grown to $698,512.33. Denton continued to oppose Wiggins’s attempts to 

close the estate, and the expense of keeping the administration open began to deplete 

the residual estate which in turn was causing the residual trust to decline in value. On 

October 20, 2010, the trial court entered its Order for Distribution and Closing of Estate. 

Proceeding pro se, Denton filed an appeal challenging that order. See In re Estate of 

Denton, No. 11-10-00341-CV, 2012 Tex. App. LEXIS 6212 (Tex. App.—Eastland July 26, 

2012, no pet.) (mem. op.) (affirming the trial court’s order approving the amended and 

restated inventory and closing of the estate). 
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Subsequent to the disposition of his first appeal, Denton continued to resist the 

closing of the estate and has persisted in challenging the amended inventory, 

appraisement, and list of claims. In the course of dealing with the estate, the trial court 

entered various orders to which Denton took exception.3 Again proceeding pro se, 

Denton filed his second appeal. See In re Estate of Denton, No. 11-14-00222-CV, 2014 

Tex. App. LEXIS 12116 (Tex. App.—Eastland Nov. 6, 2014, no pet.) (mem. op.)

(dismissing appeal on the ground the orders being appealed were interlocutory). 

The dispute continued and on May 24, 2016, the trial court entered its Order 

Closing Estate and Discharging Administrator. Denton then filed his third pro se appeal, 

contesting that order. See In re Estate of Denton, No. 11-16-00239-CV, 2018 Tex. App. 

LEXIS 5736 (Tex. App.—Eastland July 26, 2018, no pet.) (mem. op.) (affirming the trial 

court’s Order Closing Estate and Discharging Administrator).

Subsequent to the disposition of the third appeal, new filings by Denton have 

resulted in the current litigation. He now appeals the trial court’s January 19, 2019 Order 

Denying Douglas A. Denton’s Plea to the Jurisdiction and the order denying his motion 

for declaratory judgment. 

3 As listed in his notice of appeal, Denton attempted to appeal from the following rulings and orders 

of the trial court: the order granting the administrator's motion to quash a deposition and motion for 

protective order; the verbal ruling denying Denton’s motion for continuance; the verbal ruling to not accept 

Denton’s evidence of incomplete administration; the order granting the administrator's application to appoint 

a receiver for the Esther Denton Trust for Douglas A. Denton; the overruling, by operation of law, of Denton’s

motion for new trial with respect to the order appointing a receiver; and the overruling, by operation of law, 

of Denton’s motion for new trial with respect to the order quashing a deposition and granting a protective 

order.
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Although some of the issues overlap one another, for purposes of clarity, we will 

address the issues sequentially.

ISSUE ONE—JURISDICTION TO RULE ON A PLEA TO THE JURISDICTION

By his first issue, Denton contends Judge Marvin Moore committed reversible error 

by denying his plea to the jurisdiction. The plea to the jurisdiction was filed October 10, 

2018, subsequent to judgment and opinion of the Eleventh Court of Appeals affirming the 

trial court’s order closing the estate and discharging the administrator. By that plea, 

Denton alleged that Judge Alvin Walvoord, Judge William Morrow, and Judge Kyle 

Peeler, all judges who had presided over portions of the probate proceeding,4 were 

constitutionally disqualified because they each had practiced law with “opposing counsel.” 

Denton further alleged that “opposing counsel” had previously provided legal advice to 

the decedent and her late husband for forty years prior to her death, and that Judge Moore 

was also disqualified because all of the proceedings before him “presume and require the 

validity of prior proceeding before Judge Alvin Walvoord.” 

Citing to the Texas Constitution and Rule 18b(a)(2) of the Texas Rules of Civil 

Procedure, Denton contends Judge Moore “has a personal and pecuniary interest in the 

matters being decided in relation to [his] Plea to the Jurisdiction.” TEX. CONST. art. V, §

11 (providing “No judge shall sit in any case wherein he may be interested . . . .”); TEX. R.

CIV. P. 18b(a)(2). Wiggins responds by contending that because Denton never 

4 The plea to the jurisdiction alleged that Judge Walvoord presided over the probate proceeding 

from February 2006 until December 2010, signing “hundreds of orders” affecting the administration of the 

estate. The plea further alleged that Judge Morrow and Judge Peeler “were only minimally involved in this 

case,” and that Judge Moore “purported to preside over this case . . . from January 2011 through the 

present.”
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specifically sought to disqualify Judge Moore, he was never subjected to the requirements 

of Rule 18b and, therefore, he was never disqualified from considering and ruling on his

plea to the jurisdiction. Recognizing the distinction between a constitutional 

disqualification and statutory recusal, we find Judge Moore was not constitutionally 

disqualified, nor was he statutorily asked to recuse himself from the present proceeding.

Although the terms disqualification and recusal are often used interchangeably in 

appellate opinions or by attorneys who seek to remove a judge from a particular case, the 

two concepts are fundamentally different. Disqualification is of constitutional origin and it 

cannot be waived. See Fry v. Tucker, 146 Tex. 18, 202 S.W.2d 218, 221 (1947). As to 

proceedings before a disqualified judge, it has long been the settled rule of law in this 

State that any order or judgment that involves discretion and is entered by a 

constitutionally disqualified judge is “absolutely void” and is a “nullity.” Buckholts Indep. 

School Dist. v. Glaser, 632 S.W.2d 146, 148 (Tex. 1982); Comm’n for Lawyer Discipline 

v. Schaefer, 364 S.W.3d 831, 836 (Tex. 2012). Article V, Section 11 has been interpreted 

to disqualify a judge where he has previously provided legal advice concerning the matter 

in dispute in the legal action pending before him as the contested judge. Williams v. 

Kirven, 532 S.W.2d 159, 161 (Tex. Civ. App.—Austin 1976, writ ref’d n.r.e.) (held trial 

judge was disqualified because he had previously provided one of the grantors in a 

contested deed a title opinion which dealt with title to the very tract in dispute). For a

judge to be constitutionally disqualified for having “previously served as counsel,” the 

issues and the parties currently before the judge must involve the same issues and parties 

as the prior proceeding in which the judge served in some capacity as counsel. Hethcoat 
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v. Strain, No. 11-07-00004-CV, 2007 Tex. App. LEXIS 7327, at *3-4 (Tex. App.—Eastland 

Sept. 6, 2007, no pet.) (mem. op.).

Here, Judge Moore never served as counsel to either party, in any capacity, at any 

time, and the mere fact that Judges Walvoord, Morrow, and Peeler may have practiced 

law in the same law firm as opposing counsel at some time in the past, does not give rise 

to a per se basis for disqualification unless it is shown that during such association,

opposing counsel served as a lawyer in the matter in controversy. Because Denton has 

not established that Judge Moore was disqualified, nor has he established that Judges 

Walvoord, Morrow, and Peeler were disqualified, we find Judge Moore did not err, on the 

basis of being constitutionally disqualified, by denying Denton’s plea to the jurisdiction.

By way of contrast, a recusal is a statutory process providing for the removal of a 

judge in those situations where that judge’s impartiality might be reasonably questioned. 

The grounds for recusal are set forth in Rule 18b. See TEX. R. CIV. P. 18b(b)(1)-(8). 

Among others, those grounds include situations where (1) the judge’s impartiality might 

reasonably be questioned; (2) the judge has a personal bias or prejudice concerning the 

subject matter or a party; (3) the judge has personal knowledge of disputed evidentiary 

facts concerning the proceeding; (4) the judge or a lawyer with whom the judge previously 

practiced law has been a material witness concerning the proceeding; (5) the judge 

participated as counsel, advisor, or material witness in the matter in controversy, or 

expressed an opinion concerning the merits of it, while acting as an attorney in 

government service; (6) the judge knows that the judge, individually or as a fiduciary, or 

the judge’s spouse or minor child residing in the judge’s household, has a financial interest 
9

in the subject matter in controversy or in a party to the proceeding, or any other interest 

that could be substantially affected by the outcome of the proceeding; (7) the judge or the 

judge’s spouse, or a person within the third degree of relationship to either of them, of the 

spouse of such a person: (A) is a party to the proceeding or an officer, director, or trustee 

of a party; (B) is known by the judge to have an interest that could be substantially affected 

by the outcome of the proceeding; or (C) is to the judge’s knowledge likely to be a material 

witness to the proceeding; and (8) the judge or the judge’s spouse, or a person within the 

first degree of relationship to either of them, or the spouse of such a person is acting as 

a lawyer in the proceeding. 

Here, Denton has never sought to recuse Judge Moore. Because grounds for 

recusal are subject to waiver if not timely asserted, Denton has waived any grounds for 

recusal as a basis for the removal of Judge Moore. As such, we find that Judge Moore 

did not err, on the basis of being subject to statutory recusal, by denying Denton’s plea to 

the jurisdiction. Accordingly, we overrule issue one.

ISSUE TWO—FAILURE TO FILE FINDINGS OF FACT AND CONCLUSIONS OF LAW

By his second issue, Denton contends that he was harmed by the trial court’s 

failure to file findings of fact and conclusions of law after they were timely requested. We 

disagree.5

An appellate court reviews a trial court’s ruling on a plea to the jurisdiction under a 

summary judgment rubric. See Schmitz v. Denton County Cowboy Church, 550 S.W.3d

5 Pending before this court is Denton’s Motion to Abate This Appeal and Remand the Cause to the 

Trial Court to Obtain Findings of Fact and Conclusions of Law. Our disposition of issue two renders his 

motion moot.
10

342, 352 (Tex. App.—Fort Worth 2018, pet. denied). Under that standard, a trial court is 

not authorized to grant a plea to the jurisdiction if there are genuine issues of material fact 

regarding jurisdiction because those issues must be resolved by a fact finder. Id. 

Therefore, in the context of a plea to the jurisdiction, “findings of fact are superfluous.” Id. 

(citing Rebecca Simmons & Suzette Kinder Patton, Plea to the Jurisdiction: Defining the 

Undefined, 40 St. Mary’s L.J. 627, 666-67 (2009)). 

Relying on Larry F. Smith, Inc. v. Weber Co., 110 S.W.3d 611 (Tex. App.—Dallas 

2003, pet. denied), Denton argues the trial court’s failure to make findings of fact was

harmful to him and, thus, grounds for reversal. However, Weber Co. is inapplicable to 

the case at bar because it involved a trial on the merits, whereas, here, we are dealing 

with the denial of a plea to the jurisdiction as a matter of law. When there has been no 

conventional trial on the merits, findings of fact and conclusions of law are not proper. 

See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441, 443 (Tex. 1997)

(holding that when judgment is rendered as a matter of law, findings and conclusions 

serve no purpose and “should not be requested, made, or considered on appeal”). See 

also Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (holding findings of fact 

and conclusions of law “have no place” in a summary judgment proceeding). 

Because the trial court’s ruling on Denton’s plea to the jurisdiction was not the 

result of a conventional bench trial on the merits, no error was committed by the trial 

court’s failure to issue filing findings of fact and conclusions of law. Issue two is overruled.
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ISSUE THREE—MOTION FOR DECLARATORY JUDGMENT

By his third issue, Denton maintains the trial court erred in denying his motion for 

declaratory judgment by which he sought a declaration that he had a right to review, copy, 

and possess the estate’s original business records. Citing Punts v. Wilson, 137 S.W.3d 

889, 891-92 (Tex. App.—Texarkana 2004, no pet.), he argues that as the decedent’s 

heir, he is an interested party and Wiggins, as a fiduciary, has a duty to “fully, fairly, and 

honestly disclose to the beneficiaries all facts known to him” through the estate’s original 

business records. 

Wiggins contends Denton’s third issue has no merit and should be overruled. In 

part, Wiggins’s position is based on the fact that the same issue was raised and rejected 

by the Eastland Court of Appeals in Denton’s previous appeal of the trial court’s Order 

Closing Estate and Discharging Administrator. See In re Estate of Denton, 2018 Tex. 

App. LEXIS 5736, at *7 (Tex. App.—Eastland July 26, 2018, no pet.) (mem. op.) (stating

“[Denton] also complains that Wiggins did not deliver the estate records after the entry of 

the order closing the estate. As noted by Wiggins, however, the pendency of this appeal 

has delayed the closing of the estate.”). (Emphasis added). In that proceeding, the 

Eastland Court of Appeals affirmed the trial court’s Order Closing Estate and Discharging 

Administrator. The issuance of mandate in that proceeding effectively “closed” the estate, 

triggering the obligation of the administrator of the estate to “deliver the property, books, 

and papers” of the estate to the persons entitled thereto. See TEX. EST. CODE ANN. §

351.102(b)(1) (providing that the “personal representative shall deliver the property, 

books, and papers . . . that are in the representative’s possession to the person or persons 

legally entitled to” those items “when the administration of the estate is closed”).
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Without citation to any authority, Wiggins contends that the estate is not “finally 

closed” until “Denton stops filing pleadings and appeals.” We disagree. A court of 

competent jurisdiction has entered a valid and enforceable order closing the estate and 

discharging Wiggins as personal representative of the estate. That order has been 

reviewed and affirmed on appeal, and mandate has issued. By clear statutory definition, 

the estate is closed. Therefore, if the books and records of the estate have not been 

delivered as required by section 351.102(b)(1) of the Texas Estates Code, Denton has a 

viable declaratory cause of action to seek the clarification and enforcement of that 

obligation. Because the trial court summarily denied declaratory relief without ruling on 

the merits of that claim, it erred. Issue three is sustained.

ISSUE FOUR—EXISTENCE OF ISSUES OF FACT

By his fourth issue, Denton asserts the trial court erred in denying his plea to the 

jurisdiction where there were issues of material fact. He contends that his plea challenges 

the existence of jurisdictional facts because Judge Walvoord was disqualified from 

entering orders in the estate case.

A plea to the jurisdiction is a dilatory plea that challenges a trial court’s authority to 

decide the subject matter jurisdiction of a specific cause of action. Tex. Dep’t of Parks & 

Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Denton’s primary complaint is 

that Judge Walvoord was disqualified from presiding over the estate and that the validity 

of the subsequent judicial orders issued in the administration of the probate proceeding 

all rest on the question of whether he had the jurisdictional authority to preside over the 

proceeding in the first place.
13

As we discussed with respect to issue one above, Article V, Section 11 of the 

Texas Constitution provides that “[n]o judge shall sit in any case . . . where the judge shall 

have been counsel in the case.” TEX. CONST. art. V, § 11. Rule 18b(a)(1) of the Texas 

Rules of Civil Procedure provides that a judge is disqualified if “the judge served as a 

lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced 

law served during such association as a lawyer concerning the matter.” (Emphasis 

added). TEX. R. CIV. P. 18b(a)(1). In other words, a judge is disqualified when two prongs 

are met: (1) the judge or the judge’s law firm was the lawyer for a party in the case and 

(2) the matter before the contested judge is the same matter that was before the judge or 

judge’s law firm. See In re L.M.B., No. 07-19-00147-CV, 2019 Tex. App. LEXIS 8420, at 

*10-11 (Tex. App.—Amarillo Sept. 17, 2019, no pet.) (mem. op.) (citation omitted).

Regarding the first prong for disqualification, the record shows that Judge 

Walvoord left the challenged law firm circa 1990, sixteen years before the decedent’s 

death. Denton would have had to show that Judge Walvoord or someone at his firm 

represented a party in the estate case which did not even exist until February 2006, some 

sixteen years after Judge Walvoord had left his law firm. The second prong requires proof 

that the judge was involved in the “same matter in controversy.” Assuming that Judge 

Walvoord represented the decedent or her husband between 1970 and 1990, such 

representation is not the “same matter in controversy”—i.e., the probate of the estate of 

Denton’s mother.
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Therefore, as a matter of law, Denton did not raise a fact issue on either prong for 

disqualification of Judge Walvoord. As such, the trial court did not err in denying Denton’s 

plea to the jurisdiction. Issue four is overruled.

ISSUE FIVE—RESTRICTION OF DISCOVERY

Denton contends by his fifth issue that the trial court committed reversible error by 

unreasonably restricting his discovery (in the form of testimony from Wiggins and

members of the law firm that represented his mother for decades) in relation to his plea 

to the jurisdiction. He was seeking discovery related to representation of the distribution 

of his father’s estate in 1972, in which his mother served as executrix.

The clerk’s record contains a letter from Denton to the trial court expressing his 

intent to conduct discovery on his plea to the jurisdiction. However, after filing his plea, 

he did not avail himself of any of the tools of discovery, i.e., discovery requests, deposition 

notices, subpoenas, motions to compel, etc. Thus, the trial court did not restrict any 

attempt to conduct discovery. Issue five is overruled.

ISSUE SIX—TRIAL COURT BIAS

By his sixth and final issue, Denton asserts the trial court was biased against him 

and it “effectively denie[d] him due process under law.” Denton claims the trial court 

favored Wiggins and his counsel when it ordered that funds be transferred from his trust 

estate for administrative expenses presumably relating to prior appeals. He also 

rehashes previous complaints about the trial court’s failure to file findings of fact and 

conclusions of law and its refusal to allow him to take the testimony of Wiggins. 
15

Rule 18b(b)(2) of the Texas Rules of Civil Procedure provides that a judge’s bias 

is a ground for recusal. TEX. R. CIV. P. 18b(b)(2). Rule 18a governs the procedure for 

recusing a judge. TEX. R. CIV. P. 18a. In Lewis v. Ally Fin. Inc., No. 11-12-00290-CV, 

2014 Tex. App. LEXIS 13004, at *6 (Tex. App.—Eastland Dec. 4, 2014, no pet.) (mem. 

op.), the court held that the appellant’s attempt to recuse two judges in the trial court was 

waived for failure to follow procedure in filing motions to recuse. 

Without citation to any legal authority, Denton alleges that bias may be raised at 

any time. Generally, a party waives error on a trial court’s conduct if there is no timely 

objection. Hous. Auth. of Dallas v. Rudd, No. 05-19-00058-CV, 2020 Tex. App. LEXIS 

4491, at *5 (Tex. App.—Dallas June 16, 2020, no pet.) (mem. op.). Only in very narrow 

cases can a complaint of judicial conduct be raised for the first time on appeal and only 

when a judge’s bias is shown on the face of the record and is harmful. Id.

In all the years of litigation, Denton never filed a motion to recuse any judge for 

bias. The record does not contain any objections other than Denton’s complaints about 

various rulings throughout the administration of the estate. The mere fact that a judge 

has ruled against a party is not evidence of bias. A party must show that any bias arose 

from an extrajudicial source and not from in-court rulings during the pendency of the 

proceedings. Parker v. Cain, No. 07-17-00211-CV, 2018 Tex. App. LEXIS 8387, at *3-4 

(Tex. App.—Amarillo Oct. 15, 2018, pet. denied) (mem. op.) (citing Grider v. Boston Co., 

773 S.W.2d 338, 346 (Tex. App.—Dallas 1989, writ denied)). As such, Denton has 

waived any complaint based on perceived bias. Denton’s sixth issue is overruled.
16

CONCLUSION

Having overruled issues one, two, four, five, and six, the Order Denying Douglas 

A. Denton’s Plea to the Jurisdiction is affirmed. Having sustained issue three, the trial 

court’s Order Denying Douglas A. Denton’s Motion for Declaratory Judgment Regarding 

the Rights of Douglas A. Denton to Review, Copy, and Possess the Records of the 

Administration of this Estate is reversed and the cause is remanded to the trial court for 

further proceedings consistent with this opinion.

Patrick A. Pirtle

 Justice