No. 04-14-00751-CV

IN THE COURT OF APPEALS

FOURTH DISTRICT OF TEXAS

SAN ANTONIO, TEXAS

JOSEFINA ALEXANDER GONZALEZ, ET AL,

 Appellants

v. 

RAYMOND S. DE LEON II, ET AL,

 Appellees 

APPELLANTS’ BRIEF

 ROBINSON C. RAMSEY

 State Bar No. 16523700

 Email: rramsey@langleybanack.com

JOYCE W. MOORE

 State Bar No. 14357400

jwmoore@langleybanack.com 

PAULA C. BOSTON

 State Bar No. 24089661

pboston@langleybanack.com

 LANGLEY & BANACK, INC.

Trinity Plaza II

 745 E. Mulberry, Suite 900 

 San Antonio, Texas 78212

 Telephone: 210.736.6600

 Telecopier: 210.735.6889

 ATTORNEYS FOR APPELLANTS

APPELLANTS REQUEST ORAL ARGUMENT

ACCEPTED

04-14-00751-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

2/10/2015 12:19:07 AM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 02/10/2015 12:19:07 AM KEITH E. HOTTLE Clerk
i

IDENTIFICATION OF PARTIES

Appellants Josefina Alexander Gonzalez, by and through 

her co-attorneys in fact, Judith Zaffirini, 

David H. Arredondo, and Clarissa N. Chapa 

Trial Counsel: Jesus M. Dominguez

201 W. Hillside Road, Suite 17

Laredo, Texas 78041

Appellants Judith Zaffirini, as Independent Co-Executor 

of the Estate of Delfina E. Alexander, 

Deceased, and as Co-Trustee of the Rocio 

Gonzalez Exempt Trust

David H. Arredondo, as Independent CoExecutor of the Estate of Delfina E. Alexander, 

Deceased, and as Co-Trustee of the Rocio 

Gonzalez Exempt Trust

Clarissa N. Chapa, as Independent CoExecutor of the Estate of Delfina E. Alexander, 

Deceased, and as Co-Trustee of the Rocio 

Gonzalez Exempt Trust

Trial Counsel: Manuel R. Flores

FLORES, SAUCEDO & CHU

5517 McPherson Road, #14

Laredo, Texas 78041

Javier Montemayor

7718 McPherson, Suite F105

Laredo, Texas 78045
ii

Appellant Delfina E. and Josefina Alexander LLC-1

Trial Counsel: Eduardo Romero

Victor Villarreal

VILLARREAL & ROMERO, PLLC

201 W. Del Mar Blvd., Suite 15

Laredo, Texas 78041

Appellants Alexander Residential Development, LP

Alexander Commercial Development, LP

Alexander Retail Development, LP

D&J Alexander Construction, LP

D&J Alexander Management, LP

Delfina and Josefina Alexander Family 

Limited Partnership 

Trial Counsel: Rosaura Tijerina

1000 Washington Street, Suite 2

Laredo, Texas 78040

Appellate Counsel

for Appellants: Robinson C. Ramsey

Joyce W. Moore

Paula C. Boston

LANGLEY & BANACK, INC.

Trinity Plaza II

745 E. Mulberry, Suite 900 

San Antonio, Texas 78212

Appellee: Raymond S. De Leon II, Trustee of the Delfina 

& Josefina Alexander Family Trust

Trial Counsel and

Appellate Counsel: Judith R. Blakeway

James Maverick McNeel

Laura C. Mason

STRASBURGER & PRICE, LLP

2301 Broadway

San Antonio, Texas 78215
iii

Appellee: Rocio Gonzalez Guerra, Individually and as 

Next Friend of V.G.G. III and M.A.G.

Trial Counsel and

Appellate Counsel: Jeffrey T. Knebel

Michael B. Knisely

OSBORNE, HELMAN, KNEBEL &

DELEERY, LLP

301 Congress Avenue, Suite 1910

Austin, Texas 78701

Trial Court: Honorable Oscar J. Hale, Jr.

406th Judicial District Court

Webb County, Texas
iv

TABLE OF CONTENTS

IDENTIFICATION OF PARTIES.............................................................................................................. i

TABLE OF AUTHORITIES...................................................................................................................... vi

STATEMENT OF THE CASE.................................................................................................................. vii

STATEMENT REGARDING ORAL ARGUMENT............................................................................... vii

ISSUES PRESENTED.............................................................................................................................. vii

ISSUE ONE

Whether the trial court erroneously dismissed Appellants’ bill-of-review 

action for lack of subject-matter jurisdiction.

ISSUE TWO

Whether the trial court incorrectly abated the bill of review based on 

dominant jurisdiction, which does not apply here.

STATEMENT OF FACTS...........................................................................................................................1

SUMMARY OF THE ARGUMENT..........................................................................................................3

ARGUMENT ...............................................................................................................................................5

I. The trial court erroneously dismissed Appellants’ bill of review for lack of subject-matter 

jurisdiction..............................................................................................................................................5

A. Appellants are “interested persons” under the Texas Property Code....................................6

B. Appellants also have standing to contest the judgment because it orders them to deliver 

documents....................................................................................................................................12

C. The trial court confused the issue of standing to file the bill of review with the issue of the 

merits of the case.........................................................................................................................15

D. De Leon himself lacks standing because his appointment as Successor Trustee is void..16

II. The trial court incorrectly abated the Bill of Review based on dominant jurisdiction, 

which does not apply here..........................................................................................................18

PRAYER.....................................................................................................................................................19

CERTIFICATE OF COMPLIANCE ........................................................................................................20

CERTIFICATE OF SERVICE..................................................................................................................21

APPENDIX................................................................................................................................................22

A. Order Granting Defendant’s Plea to the Jurisdiction ............................................................22

B. Order on Rocio Guerra’s Motion to Reconsider Plea in Abatement of Trust 

Administration Claims ...............................................................................................................22
v

C. Judgment Appointing Successor Trustee and Modifying Certain Provisions of the Trust

22

D. TEX. PROP. CODE § 111.004 (West. 2007).................................................................................22

E. TEX. PROP. CODE § 112.054 (West 2014)..................................................................................22

F. TEX. PROP. CODE § 115.011 (West 2014)...................................................................................22

G. TEX. PROP. CODE § 115.013 (West 2014)...................................................................................22

H. TEX. CONST. art. 1, § 19................................................................................................................22
vi

TABLE OF AUTHORITIES

Cases

Alpert v. Riley, 274 S.W.3d 277 (Tex. App.─Houston [1st Dist.] 2008, pet. denied)......................18

Amador v. San Antonio State Hosp., 993 S.W.2d 253 (Tex. App.—San Antonio 1999, pet. 

denied).....................................................................................................................................................5

Baker v. Goldsmith, 582 S.W.2d 404 (Tex. 1979).................................................................................6

Buck v. Palmer, 379 S.W.3d 309 (Tex. App.─Corpus Christi 2010), rev’d on other grounds, 381 

S.W.3d 525 (Tex. 2012)........................................................................................................................11

Curtis v. Gibbs, 511 S.W.2d 263 (Tex. 1974).........................................................................................18

Dresser Indus., Inc. v. Snell, 847 S.W.2d 367 (Tex. App.—El Paso 1993, no writ).........................15

Gamboa v. Gamboa, 383 S.W.3d 263 (Tex. App.─San Antonio 2012, no pet.) ..................... 6, 7, 12

Hutchings v. Chevron U.S.A., Inc., 862 S.W.2d 752 (Tex. App.—El Paso 1993, writ denied) .........11

In re M.C.R., 55 S.W.3d 104 (Tex. App.—San Antonio 2001, no pet.) ......................................... 3, 14

In re Mask, 198 S.W.3d 231 (Tex. App.—San Antonio 2006, orig. proceeding).............................17

In re Sims, 88 S.W.3d 297 (Tex. App.─San Antonio 2002, orig. proceeding)........................... 4, 18

In the Interest of B.I.V., 923 S.W.2d 573 (Tex. 1996).........................................................................14

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998)............................................................5

Michael v. Dyke, 41 S.W.3d 746 (Tex. App.─Corpus Christi 2001, no pet.)......................................11

Perry v. Del Rio, 67 S.W.3d 85 (Tex. 2001) .........................................................................................16

Rodriguez ex rel. Rodriguez v. EMC Mortg. Corp., 94 S.W.3d 795 (Tex. App.—San Antonio 

2002, no pet.) ..................................................................................................................... 3, 4, 6, 12, 15

Safeway Stores of Texas v. Rutherford, 111 S.W.2d 688 (Tex. 1938)..............................................17

Schuele v. Schuele, 119 S.W.3d 822 (Tex. App.─San Antonio 2003, no pet.) ............................. 4, 18

Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993)............................ 4, 5, 14

Thompson v. Vinson & Elkins, 859 S.W.2d 617 (Tex. App.—Houston [1st Dist.] 1993, writ denied)

..................................................................................................................................................................8

Transworld Fin. Services Corp. v. Briscoe, 722 S.W.2d 407 (Tex. 1987)...................................... 5, 6

Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245 (Tex. 1988)..............................................................18

Statutes

TEX. PROP. CODE § 111.004 (West 2007)....................................................................................7, 16

TEX. PROP. CODE § 115.011 (West 2014).........................................................................................16

TEX. PROP. CODE § 115.013 (West 2014). .......................................................................................16

Constitutional Provisions

TEX. CONST. art. 1 § 19....................................................................................................................16
vii

STATEMENT OF THE CASE

This is a bill-of-review case, which the trial court dismissed for lack of 

subject-matter jurisdiction. CR 817-18. 

STATEMENT REGARDING ORAL ARGUMENT

Appellants believe that the question-and-answer format of oral 

argument would assist this Court in exploring the issues and reaching a 

resolution in this case. 

ISSUES PRESENTED

ISSUE ONE

(Dismissal)

Whether the trial court erroneously dismissed 

Appellants’ bill-of-review action for lack of subjectmatter jurisdiction.

ISSUE TWO

(Abatement)

Whether the trial court incorrectly abated the bill of 

review based on dominant jurisdiction, which does 

not apply here.
1

STATEMENT OF FACTS

On February 23, 2012, Appellee Rocio Guerra filed a suit (the 

Trustee Case) seeking to appoint Appellee Raymond De Leon II as 

Successor Trustee of the Delfina and Josefina Alexander Family Trust

(the Trust) and to modify the terms of that trust. CR 35-41.

The only persons that the Trust Case petition identified as having 

an interest in this suit were Rocio Guerra and her minor children, Vidal 

Guerra, III and Mayela Alexandra Guerra. CR 36. The suit did not name

Appellants, who were serving as co-trustees of Guerra’s Exempt Trust, as 

well as in management capacities for various business entities in which 

both trusts own interests. CR 2-3, 20-24, 36. Furthermore, Appellants 

received no notice of the underlying lawsuit. CR 25-26. Nevertheless, the 

Judgment ordered them to deliver the following documents to De Leon as 

Successor Trustee:

All books and records of the Trust, including but not limited to 

limited partnership agreements, records, tax returns, files and 

documents related to the assets of the Trust, shall be delivered 

to RAYMOND DE LEON, III, within ten (10) days from the date 

of this Judgment by any individual or entity possessing same, 

including all books and records relating to Alexander 

Residential Development, L.P., Alexander Commercial 

Development, L.P., Alexander Retail Development, L.P., D&J 

Alexander Construction, L.P. and Alexander Management, L.P. 

and Delfina E. and Josefina Alexander, LLC-1. 

CR 68.
2

The judgment in the Trust Case recites that the trial court heard 

the case on March 12, 2012, but the docket does not reflect that any 

hearing took place on that day or any other day. CR 64-66.

Furthermore, when Appellants’ attorney requested a copy of the 

transcription of the proceeding from the court reporter, she told him 

that, after reviewing her notes for March 12, 2012, she found no record 

of this case being called or heard on that day. CR 24. Nor did 

Appellants receive notice of any such hearing. CR 23-24, 80.

Because the time for an appeal had passed, Appellants filed a billof-review action (the Bill of Review) in 2014 seeking to set aside the 

judgment that named De Leon as Successor Trustee and that ordered 

them to deliver documents to him in that capacity. CR 19-34. But the 

trial court dismissed the Bill of Review for lack of jurisdiction based on 

the theory that Appellants did not have standing. CR 817-18. That 

dismissal is the subject of this appeal.
3

SUMMARY OF THE ARGUMENT

I. The trial court erroneously dismissed Appellants’ bill of 

review for lack of standing. 

Because Appellants are affected by De Leon’s appointment as 

Successor Trustee and his subsequent actions against them, they are 

“interested persons” under section 111.004(7) of the Texas Property Code 

(defining “interested person” to include any person “having an interest in or 

a claim against the trust or any person who is affected by the 

administration of the trust”). This justiciable interest gives them standing 

to file the Bill of Review. In re M.C.R., 55 S.W.3d 104, 107 (Tex. App.—San 

Antonio 2001, no pet.) (holding that person has standing so long as he has 

“a justiciable interest, that is, a personal stake in the controversy.”).

Case law also confirms that “a party possesses standing to file a bill of 

review if he was a party to the prior judgment or one who had a then 

existing interest or right which was prejudiced thereby.” Rodriguez ex rel. 

Rodriguez v. EMC Mortg. Corp., 94 S.W.3d 795, 798 (Tex. App.—San 

Antonio 2002, no pet.). Although Appellants were not originally named as 

parties in the pleadings, the judgment ordered them to deliver documents 

to De Leon. CR 68. 

If it were not for the Trust Case judgment, De Leon would not have 

been entitled to receive any documents from Appellants because they would 

not have been ordered to produce this information to him. Therefore, in 
4

addition to Appellants’ complaint that De Leon’s appointment has 

adversely affected their ability to conduct business, they have a justiciable 

interest in challenging that judgment because it has created a controversy 

between them and De Leon as to whether they must submit these 

documents to him. See Texas Ass’n of Bus. v. Texas Air Control Bd., 852 

S.W.2d 440, 446 (Tex. 1993) (holding that a litigant has standing so long as 

there is “a real controversy between the parties” that “will be actually 

determined by the declaration sought”).

II. The trial court incorrectly abated the Bill of Review based 

on dominant jurisdiction, which does not apply here.

Under the doctrine of dominant jurisdiction, when a suit would be 

proper in more than one county, the court in which suit is first filed 

acquires dominant jurisdiction to the exclusion of other courts. In re Sims, 

88 S.W.3d 297, 302 (Tex. App.─San Antonio 2002, orig. proceeding). But 

dominant jurisdiction applies only when separate suits are filed in courts 

with concurrent jurisdiction. Schuele v. Schuele, 119 S.W.3d 822, 824 (Tex. 

App.─San Antonio 2003, no pet.). When one court lacks jurisdiction to 

hear a case, the doctrine has no application. Id.

The only court that can hear a bill-of-review action is the court that 

entered the judgment under attack. Rodriguez, 94 S.W.3d at 797.

Therefore, only the district court has jurisdiction to consider the Bill of 

Review. Id. Because the county court at law has no jurisdiction to do so, the 
5

question of dominant jurisdiction does not arise. As a result, the trial 

court’s abatement of the Bill of Review on the basis of dominant 

jurisdiction is erroneous. 

ARGUMENT

I. The trial court erroneously dismissed Appellants’ bill of 

review for lack of subject-matter jurisdiction.

The issue of whether a trial court has subject-matter jurisdiction is a 

question of law, which appellate courts review under a de novo standard.

Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998); Amador 

v. San Antonio State Hosp., 993 S.W.2d 253, 254 (Tex. App.—San Antonio 

1999, pet. denied). In making its determination, the trial court considers 

the allegations in the plaintiff’s pleadings, which the court of appeals 

accepts as true and construes “in favor of the pleader.” Amador, 993 

S.W.2d at 254 (citing, inter alia, Texas Ass’n of Business v. Texas Air 

Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)).

A bill of review is a proceeding to set aside a judgment that is “no 

longer appealable or subject to a motion for new trial.” Transworld Fin. 

Services Corp. v. Briscoe, 722 S.W.2d 407, 407 (Tex. 1987). It is “an 

independent action,” which has a separate cause number but “must be filed 

in the same court that rendered the judgment under attack.” Rodriguez ex 
6

rel. Rodriguez v. EMC Mortg. Corp., 94 S.W.3d 795, 797 (Tex. App.—San 

Antonio 2002, no pet.).

Generally, a bill-of-review petitioner must initially plead and primafacially prove: “(1) a meritorious defense to the cause of action alleged to 

support the judgment, (2) that he was prevented from making by the fraud, 

accident or wrongful act of his opponent, (3) unmixed with any fault or 

negligence of his own.” Briscoe, 722 S.W.2d at 408. If the court determines 

that the petitioner has not met these prima facie requirements “the 

proceeding terminates and the trial court shall dismiss the case.” Baker v. 

Goldsmith, 582 S.W.2d 404, 409 (Tex. 1979). “On the other hand, if a 

prima facie meritorious defense has been shown, the court will conduct a 

trial.” Id. Here, however, Appellants never received an opportunity to 

present their prima facie proof because the trial court dismissed the Bill of 

Review for lack of jurisdiction, based on the mistaken belief that Appellants 

lacked standing to file it. CR 817-18.

A. Appellants are “interested persons” under the Texas 

Property Code.

1. “Interested persons” includes any affected 

persons, not just trustees and beneficiaries.

The Texas Property Code provides that any “interested person” may 

file a suit under this Act. Gamboa v. Gamboa, 383 S.W.3d 263, 273 (Tex. 

App.─San Antonio 2012, no pet.); TEX. PROP. CODE § 115.011 (a) (West 
7

2014). Section 111.004 defines an “interested person” as “a trustee, 

beneficiary, or any other persons having an interest in or a claim against a 

trust or any person who is affected by the administration of the trust.” TEX.

PROP. CODE § 111.004(7) (West 2007); Gamboa, 383 S.W.3d at 273; see also

TEX. PROP. CODE § 111.004(10)(A)-(D) (defining “person” as an individual, a 

corporation, a limited liability company, or a partnership). “Whether a 

person, excluding a trustee or named beneficiary, is an interested person 

may vary from time to time and must be determined according to the 

particular purposes of and matter involved in any proceeding.” TEX. PROP.

CODE § 111.004 (7). 

According to De Leon, “Texas law is clear that only a beneficiary and a 

trustee have an interest in the administration of a trust.” CR 146. But 

according to section 111.004 of the Texas Property Code, “an interested 

person” is not limited to a beneficiary or a trustee, but includes “any other 

persons having an interest in or a claim against the trust or any person who 

is affected by the administration of the trust.” TEX. PROP. CODE § 111.004

(7). Appellants are affected by these trust proceedings in a variety of ways.
8

2. Appellants are affected by De Leon’s acquiring an 

interest in the partnerships that they manage.

The Trust property consists of a limited partnership interest in the 

various Alexander Limited Partnerships. CR 66-70. The judgment 

appointed De Leon as the Successor Trustee, and he has assumed the role as 

the limited partner of the Alexander Limited Partnerships. CR 66-70.

Delfina E. and Josefina Alexander LLC-1 is the General Partner of five 

limited partnerships. The General Partner holds a 2% General Partnership 

interest in each of these five limited partnerships, while the Trustees of the 

Exempt Trust created under Delfina’s Will hold a 4% Limited Partnership 

interest, as does Josefina’s Estate. The Successor Trustee of the Trust holds 

the remaining 90% ownership interest. CR 557-63, 658, 668. See Thompson 

v. Vinson & Elkins, 859 S.W.2d 617, 623 (Tex. App.—Houston [1st Dist.] 

1993, writ denied) (holding that because a trust is not a legal entity, legal 

title to its assets are held by the trustee). 

Appellants are affected by De Leon’s appointment as Successor Trustee 

of the Trust because that appointment gave him standing to participate in 

and interfere with the operations of the Alexander Limited Partnerships as 

well as to engage in litigation—in fact, he has already filed “derivative” suits

on behalf of the partnerships against Appellants and their general partner as 

well as the member managers of the general partner. CR 142. 
9

De Leon insinuates that any action he takes as Successor Trustee is 

not sufficient to give Appellants standing to complain, because, according 

to him, any person serving in that capacity could take the same actions, and 

Appellants will always be answerable to some trustee. But De Leon is not 

just any Successor Trustee; he is someone who is not authorized to serve in 

this capacity because his appointment is void, or in the alternative, 

voidable.

Furthermore, as Appellants have complained, they are affected by De 

Leon’s appointment and are “interested persons” who should have been 

given notice, but were not. CR 2, 23-25, 77. As a result of that appointment, 

De Leon is using his disputed powers as Successor Trustee to take actions 

that are harmful to the Trust as well as the partnership entities; or, at an 

alternative minimum, there is a fact issue as to the impropriety of his 

actions. CR 87-88. Because Appellants are affected by these actions, they 

have standing to contest his appointment and actions as being

unauthorized and improper. 

The sole purpose of appointing De Leon as Successor Trustee was to 

enable him to file a lawsuit to take over the Alexander Limited 

Partnerships. CR 549-51, 692-746. Because of this litigation, Appellants 

have had to hire attorneys and spend time and funds to defend against De 

Leon’s actions, which are baseless. His insinuation that any person serving 
10

as Successor Trustee would have the right to sue Appellants misses the 

point: any other person would not likely engage in the brand of bad-faith 

litigation that De Leon has instituted—and if they did, Appellants would 

have standing to complain of that as well.

3. Because De Leon’s appointment is void, there is 

no need to remove him from a non-position.

“[T]here are no Texas cases,” De Leon proclaims, “that provide that 

either the Grantors or any representatives on their behalf or partnerships of 

which a trust is an owner, have standing to file suit as an interested person” 

to try to remove a trustee “or otherwise bring an actions against the 

Trustee.” CR 146. But what Appellants are really seeking is confirmation 

that the order appointing De Leon is void, which means there is no need to 

remove him, because he never legally occupied this position. RR 47-48.1 

(“We’re not asking removal of the Trustee. We’re saying the trustee’s 

appointment was void ab initio.”). 

The Bill of Review does not, as De Leon insinuates, assert a separate 

claim against him. There is no need to file a separate cause of action for a 

removal or an accounting, because De Leon was never validly appointed in 

the first instance. The requirement for him to account for the funds he 

received while he was not a valid Successor Trustee constitutes a remedy that 

 1 June 27, 2014 hearing.
11

would result from vacating the judgment purporting to appoint him as 

Successor Trustee, because it is void, or in the alternative, voidable.

An action for an accounting may be a suit in equity, or it may be a 

particular remedy sought in conjunction with another cause of action. 

Michael v. Dyke, 41 S.W.3d 746, 754 (Tex. App.─Corpus Christi 2001, no 

pet.); abrogated by Buck v. Palmer, 379 S.W.3d 309 (Tex. App.─Corpus 

Christi 2010), rev’d on other grounds, 381 S.W.3d 525 (Tex. 2012); see also

Hutchings v. Chevron U.S.A., Inc., 862 S.W.2d 752, 762 (Tex. App.—El Paso 

1993, writ denied) (treating accounting as an equitable remedy for 

determining amount of damages). In this matter, an accounting is not an 

independent claim; it is one of the potential remedies for a successful bill of 

review.

4. De Leon has admitted that the Alexander 

Partnerships are affected by the judgment.

Although De Leon disputed that Appellants are “interested parties,” 

his attorney admitted in open court that the Alexander Partnerships are 

affected parties. CR 860-61. (“The affected part[ies] in this case [are] 

partnerships that the Trust owns 90 percent of ... [T]hey’re an affected 

party.”). Appellants have tried to temper this concession with the assertion 

that an “affected person” is not an “interested party.” But section 111.004 

provides that an “interested person” includes any person “having an 

interest in or a claim against a trust or any person who is affected by the 
12

administration of the trust.” Gamboa, 383 S.W.3d at 273; TEX. PROP. CODE

§ 111.004(7). Because the Alexander Partnerships are admittedly affected 

by the administration of the trust, they are “interested persons” under TEX.

PROP. CODE § 111.004 (7).

5. The trial court itself recognized that Appellants 

are affected by the Trust Case judgment.

In addition, the trial confirmed, albeit inadvertently, that Appellants 

are interested parties. The Order Granting Rocio Guerra’s Motion to 

Reconsider Plea in Abatement of Trust Administration Claims provides that 

De Leon shall furnish an accounting to “all persons affected by the 

judgment signed on March 12, 2012, including the Guardian Ad Litems for 

the minors and the Co Attorneys in Fact, Judith Zaffirini, David H. 

Arredondo and Clarissa N. Chapa.” CR 877. Therefore, this order confirms

that the Co-Attorneys-In-Fact are affected by a judgment in the Trust Case,

which gives them standing to file a bill of review. TEX. PROP. CODE § 

111.004(7).

B. Appellants also have standing to contest the judgment 

because it orders them to deliver documents.

“[A] party possesses standing to file a bill of review if he was a party 

to the prior judgment or one who had a then existing interest or right which 

was prejudiced thereby.” Rodriguez, 94 S.W.3d at 798. Although 
13

Appellants were not originally named as parties in the pleadings, the 

judgment ordered them to deliver documents to De Leon. CR 68. 

Furthermore, Appellants have an existing interest in overturning this 

judgment, which prejudices them by ordering them to take actions without 

giving them an opportunity to defend against the claims that led to this 

judgment and order. See Rodriguez, 94 S.W.3d at 798 (determining that a 

party who had “a then existing interest that was prejudiced by the 

judgment” had standing to file a bill of review).

De Leon claims that Appellants lack standing to challenge the 

judgment appointing him as Successor Trustee because they are not 

affected by that appointment. But the same judgment that appointed him 

as Successor Trustee also ordered Appellants to deliver to him “[a]ll books 

and records of the Trust, including but not limited to limited partnership 

agreements, records, tax returns, files and documents related to the assets 

of the Trust.” CR 68. Furthermore, they are affected by De Leon’s 

interfering with their ability to conduct business.

If it were not for the Trust Case judgment, De Leon would not have 

been entitled to receive any documents from Appellants because they would 

not have been ordered to produce this information to him. Therefore, 

Appellants have a justiciable interest in challenging the very judgment that 

created a controversy between them and De Leon as to whether they must 
14

submit detailed financial documents to him. See Texas Ass’n of Bus. v. 

Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993) (holding that a 

litigant has standing so long as there is “a real controversy between the 

parties” that “will be actually determined by the declaration sought”).

By ordering Appellants to deliver documents to De Leon as Successor 

Trustee, the judgment interfered with Appellants’ interests and rights to 

conduct their business without having to answer to someone who they

submit was not properly appointed as a trustee and therefore is not entitled 

to receive the documents. It also prejudiced their right to be free from the 

threat of having to defend against a contempt action in the event they do 

not deliver the documents to De Leon’s satisfaction. CR 127-32, 143.

A person has standing so long as he has “a justiciable interest, that is, 

a personal stake in the controversy.” In re M.C.R., 55 S.W.3d 104, 107 (Tex. 

App.—San Antonio 2001, no pet.) (citing, inter alia, In the Interest of B.I.V.

923 S.W.2d 573, 573 (Tex. 1996). Appellants have an undeniable stake in 

not being the targets of a potential contempt action. They also have a 

personal stake in making sure that the purported trustee to whom they are

required to deliver documents─including detailed financial documents 

such as tax returns─was legitimately appointed, because if he was not, that 

delivery would be unauthorized.
15

C. The trial court confused the issue of standing to file the 

bill of review with the issue of the merits of the case. 

To establish standing to file a bill of review, it is not necessary that the 

parties filing this action demonstrate that they will prevail on the merits; it 

is sufficient to show that they have a justiciable interest in the subjectmatter of the judgment they are challenging. Dresser Indus., Inc. v. Snell, 

847 S.W.2d 367, 375-76 (Tex. App.—El Paso 1993, no writ) (explaining that 

standing concerns the issue of whether a litigant has the right to bring a 

lawsuit, not whether that party can ultimately prevail on the merits of the 

claim).

“[W]e did have an interest,” Appellants’ attorney explained to the trial 

court, “because their operations─what they have done affects the operation 

of the general partner.” RR 85.2

Even if the trial court disagrees with this contention, Appellants 

nevertheless have standing to pursue it in the Bill of Review, which is a new 

and separate proceeding. See Rodriguez, 94 S.W.3d 795, 797 (“A bill of 

review is an independent action...”). They also have standing to attack the 

judgment that orders them to deliver documents to De Leon.

According to De Leon, Appellants have no interest in the Trust 

because it states that the grantors gave up all their interests, rights, and 

powers to alter, amend, revoke, or terminate the Trust. CR 145. But 

 2 June 27, 2014 hearing.
16

Appellants are not trying to alter or terminate the Trust; they are

challenging a judgment they contend did not validly appoint De Leon, who,

as a result, has inserted himself in their business affairs. Therefore the 

Alexander Partnerships have standing as “interested persons” under 

section 111.004 because they are “affected by the administration of the 

trust.” TEX. PROP. CODE § 111.004(7).

Stripped of all pretense and reduced to reality, De Leon’s position is 

this: he claims he can obtain a judgment that permits him to affect 

Appellants’ business dealings and that orders them to deliver documents to 

him, then prevent them from complaining by asserting they lack standing 

to attack the judgment that is the source of the dispute. Applying this 

theory would render due process unrecognizable. See Perry v. Del Rio, 67 

S.W.3d 85, 92 (Tex. 2001) (“[O]ur due course of law provision at a 

minimum requires notice and an opportunity to be heard at a meaningful 

time and in a meaningful manner.”); see also TEX. CONST. art. 1 § 19.

D. De Leon himself lacks standing because his 

appointment as Successor Trustee is void.

Not only is De Leon incorrect in claiming that Appellants lack 

standing to pursue their Bill of Review, he himself lacks standing because 

the judgment appointing him as Successor Trustee is void. 

The judgment in the Trust Case contains no recitation, citation, 

service, or any other indication of acquiring personal jurisdiction over Vidal 
17

Guerra III and Mayela Guerra, who, as beneficiaries of their mother, Rocio 

Guerra, are necessary parties to any action to appoint a trustee or to modify 

the Family Trust. CR 36, 66-70. See TEX. PROP. CODE § 115.011(b)(2) (West 

2014); In re Mask, 198 S.W.3d 231, 234 (Tex. App.─San Antonio 2006, 

orig. proceeding) (“If a trial court enters a judgment before it acquires 

jurisdiction of the parties, the judgment is void.”); CR 66. A judgment 

entered in the absence of necessary parties is void. Safeway Stores of Texas 

v. Rutherford, 111 S.W.2d 688, 690 (1938).

Although both children were minors at the time the trial court 

entered the judgment, it does not recite that the judge either appointed ad 

litems for them, found that their interest could be “virtually represented” by 

their mother. CR 36, 66-70. The Texas Property Code allows a parent to 

represent the interest of her minor child as “guardian ad litem or as next 

friend” only “if there is no conflict of interest.” TEX. PROP. CODE § 

115.013(c)(3) (West 2014). The Trust modification that allowed “adult” 

beneficiaries (rather than the court) to appoint successor trustees, she 

created a conflict of interest between herself and her then-minor children, 

thereby precluding any presumption that “virtual representation” of the 

children by Rocio would be permissible. CR 66-71.

In addition, the judgment in the Trust Case contains none of the 

section 112.054 findings, which are prerequisites to the court’s authority to 
18

enter a judgment modifying the Trust. CR 66-70. Without these findings 

the trial court had no power to enter the judgment purporting to modify the 

Trust. Alpert v. Riley, 274 S.W.3d 277, 290 (Tex. App.─Houston [1st Dist.] 

2008, pet. denied) (“Without basis in one of the statutory grounds [of 

section 112.054], the trial court lacked the power to deviate from the trust’s 

terms.”).

II. The trial court incorrectly abated the Bill of Review based 

on dominant jurisdiction, which does not apply here.

As a general rule, when a suit would be proper in more than one 

county, the court in which suit is first filed acquires dominant jurisdiction 

to the exclusion of other courts. In re Sims, 88 S.W.3d 297, 302 (Tex. 

App.─San Antonio 2002, orig. proceeding) (citing Wyatt v. Shaw 

Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988); Curtis v. Gibbs, 511 

S.W.2d 263, 267 (Tex. 1974)). But the concept of dominant jurisdiction 

arises only when separate suits are filed in courts with concurrent 

jurisdiction. Schuele v. Schuele, 119 S.W.3d 822, 824 (Tex. App.─San 

Antonio 2003, no pet.). Where one court lacks jurisdiction to hear a case, 

the doctrine has no application. Schuele, 119 S.W.3d at 824.

The only court that can hear a bill-of-review action is the one that 

entered the judgment that is the subject of the bill of review. Rodriguez ex 

rel. Rodriguez v. EMC Mortg. Corp., 94 S.W.3d 795, 797 (Tex. App.—San 

Antonio 2002, no pet.) (“[A] bill of review must be filed in the same court 
19

that rendered the judgment under attack.”). No other court has jurisdiction 

to set aside that judgment. Id. Therefore, notwithstanding Appellees’ claim 

that the Bill of Review filed in the district court is similar to suits previously

filed in the county court at law, only the district court has jurisdiction to 

consider the bill of review. Because the county court at law has no 

jurisdiction to do so, the question of dominant jurisdiction does not arise. 

As a result, the trial court’s abatement of the Bill of Review on the basis of 

dominant jurisdiction. 

PRAYER

For these reasons, Appellants ask this Court to:

• reverse the trial court’s orders of dismissal and 

abatement;

• remand this case the trial court to determine Appellants’ 

bill-of-review action; and

• grant Appellants all other relief to which they are entitled.
20

Respectfully submitted,

/s/Robinson C. Ramsey______

ROBINSON C. RAMSEY

State Bar No. 16523700

Email: rramsey@langleybanack.com

JOYCE W. MOORE

State Bar No. 14357400

jwmoore@langleybanack.com

PAULA C. BOSTON

State Bar No. 24089661

pboston@langleybanack.com

LANGLEY & BANACK, INC.

Trinity Plaza II

745 E. Mulberry, Suite 900 

San Antonio, Texas 78212

Telephone: 210.736.6600

Telecopier: 210.735.6889

ATTORNEYS FOR APPELLANTS

CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), 

Appellants certify that the number of words in Appellants’ Brief, including 

its headings, footnotes, and quotations, is: 4,263.

/s/ Robinson C. Ramsey 

ROBINSON C. RAMSEY
21

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the above and foregoing 

document has been served on this 9th day of February, 2015, to the 

following counsel of record:

Judith R. Blakeway

Email: Judith.blakeway@strasburger.com

James Maverick McNeel

Email: james.mcneel@strasburger.com

Laura C. Mason

Email: laura.mason@strasburger.com

STRASBURGER & PRICE, LLP

2301 Broadway

San Antonio, Texas 78215

Attorneys for Raymond S. De Leon II, Trustee of the Family Trust

Jeffrey T. Knebel

Email: jtknebel@ohkdlaw.com

Michael B. Knisely

Email: mbknisely@ohkslaw.com

OSBORNE, HELMAN, KNEBEL & DELEERY, LLP

301 Congress Avenue, Suite 1910

Austin, Texas 78701

Attorneys for Rocio G. Guerra

/s/Robinson C. Ramsey______

ROBINSON C. RAMSEY

L & B 16052/0005/L0943779.DOCX
22

APPENDIX

A. Order Granting Defendant’s Plea to the Jurisdiction

B. Order on Rocio Guerra’s Motion to Reconsider Plea in 

Abatement of Trust Administration Claims

C. Judgment Appointing Successor Trustee and Modifying Certain 

Provisions of the Trust

D. TEX. PROP. CODE § 111.004 (West. 2007)

E. TEX. PROP. CODE § 112.054 (West 2014)

F. TEX. PROP. CODE § 115.011 (West 2014)

G. TEX. PROP. CODE § 115.013 (West 2014)

H. TEX. CONST. art. 1, § 19

 
APPENDIX

A
Uo-U0-14;rJ:IV 0-rom:4ubtr) uistriot Court to:97272404 ;9565235074 # 2/ 5

CAUSE NO. 2014-CVQ-001098-D4

JOSEFINA ALEXANDER GONZALEZ,

BY AND THROUGH HER

CO-ATTORNEYS IN FACT, JUDITH

ZAFFIRINI, DAVID H. ARREDONDO

AND CLARISSA N. CHAPA, JUDITH

ZAFFIRINI, DAV1D ARREDONDO

§

§

§

§

§

§

IN THE DISTRICT COURT

AND CLARISSA CHAPA, AS

INDEPENDENT CO-EXECUTORS OF §

THE ESTATE OF DELFINA E.

ALEXANDER, DECEASED AND AS §

CO-TRUSTEES OF THE ROCIO

GONZALEZ GUERRA EXEMPT TRUST; §

ALEXANDER RESIDENTIAL

DEVELOPMENT, L.P., ALEXANDER §

COMMERCIAL DEVELOPMENT, L.P., §

ALEXANDER RETAIL DEVELOPMENT, §

L.P., D&J ALEXANDER

CONSTRUCTION, L.P., D&J

ALEXANDER MANAGEMENT, L.P., §

DELFINA E. AND JOSEFINA

ALEXANDER, LLC-1; AND DELFINA §

AND JOSEFINA ALEXANDER FAMILY §

LIMITED PARTNERSHIP,

Plaintiffs

VS. § 406Th JUDICIAL roux-7

RAYMOND S. DE LEON, II, TRUSTEE §

OF THE DELFINA & JOSEFINA

ALEXANDER FAMILY TRUST; ROCIO §

GONZALEZ GUERRA, Individually

And as Next Friend of VIDAL GERARDO §

GUERRA, III and MAYELA

ALEXANDRA GUERRA,

Defendants § WEBB COUNTY, TEXAS

ORDER GRANTING DEFENDANT'S PLEA TO THE JURISDICTION

On the 25th day of July, 2014, came to be heard by submission, Defendant's Raymond S.

De Leon, 11, Trustee of the Delfina and Josef= Alexander Family Trust ("Defendant") Plea to

the Jurisdiction. Plaintiffs and Defendant all appeared by and through their respective counsel.

After review of the pleadings, evidence presented and argument of counsel, the Court finds that

Order Granting Defendant's Plea to the Jurisdiction Page 1
Plaintiffs lack standing to challenge the judgment signed on March 12, 2012, and that said Plea

to the Jurisdiction should be and is hereby GRANTED.

IT IS THEREFORE ORDERED that Defendant's Plea to the Jurisdiction is

GRANTED and the Plaintiffs' Bill of Review claims in this cause are dismissed.

SIGNED this 6 day of August, 2014.

HON. OSCAR J. HALE, JR.--

406Th JUDICIAL DISTRICT COURT

WEBB COUNTY, TEXAS

Order Granting Defendant's Plea to the Jurisdiction Page 2
APPENDIX
yo-yo-14;16;1u ;trom;4uorn u,striot court 10;V/2/24U4 ;Vbbb2jbU/4 1 4/ b

CAUSE NO. 2014-CVQ-001098-D4

JOSEFINA ALEXANDER GONZALEZ, § IN THE DISTRICT COURT

BY AND THROUGH HER

CO-ATTORNEYS !N FACT, JUDITH §

ZAFFIRINI, DAVID H. ARREDONDO • §

AND CLARISSA N. CRAM, JUDITH §

ZAFFIRJINI, DAVID ARREDONDO

AND CLARISSA CHAPA, AS

INDEPENDENT CO-EXECUTORS OF §

THE ESTATE OF DELFINA E.

ALEXANDER, DECEASED AND AS §

CO-TRUSTEES OF THE ROCIO

GONZALEZ GUERRA EXEMPT TRUST; §

ALEXANDER RESIDENTIAL

DEVELOPMENT, L.P., ALEXANDER §

COMMERCIAL DEVELOPMENT, L.P., §

ALEXANDER RETAIL. DEVELOPMENT, §

L.P., D&J ALEXANDER

CONSTRUCTION, L.P., D&J

ALEXANDER MANAGEMENT, L.P., §

DELFINA E. AND JOSEF/NA

ALEXANDER, LLC-1; AND DELFINA §

AND JOSEFINA ALEXANDER FAMILY §

LIMITED PARTNERSHIP,

.Plaintiffs

VS. § 406T8JUDICIAL DISTRICT

RAYMOND S. DE LEON, II, TRUSTEE §

OF THE DELFINA & JOSEFINA

ALEXANDER FAMILY TRUST; ROCIO §

GONZALEZ GUERRA, Individually §

And as Next Friend of VIDAL GERARDO §

GUERRA, III and MAYELA

ALEXANDRA GUERRA,

Defendants § WEBB COUNTY, TEXAS

ORDER ON ROCIO GUERRA'S MOTION TO RECONSIDER 

PLEA IN ABATEMENT OF TRUST ADMINISTRATION CLAIMS 

On the 29'h day of July, 2014, after having considered Rocio Guerra's Motion to

Reconsider Plea in Abatement of Trust Administration Claims (the "Motion"), the pleadings on

file, the parties' evidence and the arguments of counsel, the Court finds that the Motion has merit

and should be GRANTED, in part.

Order on Rocio Guerra's Motion to Reconsider Page 1
vo-vo-14,i,.1v ,rrom:Liuovn visrricr ourr lo:V/2/24U4 ;Vbbb2jt0/4 r b/ b

IT IS ORDERED, on the Court's own motion, that an accounting of all trust

expenditures made by the Successor Trustee, Raymond S. De Leon, II, shall be prepared by

Successor Trustee, Raymond S. De Leon, II, and produced to all persons affected by the

judgment signed on March 12, 2012, including the Guardian Ad Litems for the minors and the

Co-Attomeys in Fact, Judith Zaffirini, David H. Arredondo and Clarissa N. Chapa.

IT IS FURTHER ORDERED that the accounting report shall be produced on or before

September 6, 2014.

IT IS FURTHER ORDERED that all other "trust administration claims", including

current or future claims to remove the successor trustee, be litigated and resolved in the pending

case at Webb County Court at Law No. 2.

IT IS FURTHER ORDERED that Rocio Guerra's Motion to Reconsider Plea in

Abatement of the Trust Administration Claims is GRANTED in all other respects.

SIGNED this 6th day of August;2014.

HON. OSCAR J. HALE, JR.

406111 JUDICIAL DISTRICT COURT

WEBB COUNTY, TEXAS

Order On Rocio Guerra's Motion to Reconsider Page 2
APPENDIX
No. 2012CVQ000262D4

IN THE MATTER OF THE

DELFINA AND JOSEFINA ALEXANDER §

FAMILY TRUST

IN THE DISTRI

NO. 406 OF

WEBB COUNTY, TEXAS

JUDGMENT APPOINTING SUCCESSOR TRUSTEE

AND MODIFYING CERTAIN PROVISION. OF THE TRUST 

On this date came on to be heard the above-entitled and numbered cause.

In this regard, the Court finds that:

1. The DELFINA AND JOSEFINA ALEXANDER FAMILY TRUST (the "Trust")

was created pursuant to a trust instrument executed by Delfina Alexander and Josefina Alexander

Gonzalez on or about January 1, 1997. The Trust provides that the trust was to be divided into three

(3) separate trust funds, known as the ROCIO GONZALEZ GUERRA TRUST; VIDAL

GERARDO GUERRA., III TRUST and MAYELA ALEXANDRA GUERRA TRUST.

2. DELFINA ALEXANDER served as an initial Co-Trustee of these Trusts from their

inception until her death on January 27, 2008. JOSEFINA ALEXANDER GONZALEZ served

as the other initial Co-Trustee and then the sole successor Trustee until June 10, 2009, when she

resigned as Trustee. Following her resignation, A.E. PUIG, SR. served as trustee of these Trusts

until his resignation on December4, 2010. Following his resignation, LAWRENCE PUIG declined

to serve as the successor Trustee of the Trusts.

3. Currently, there is no one serving as Trustee.

1

EXHIBIT

66
4. The applicant has requested the appointment of RAYMOND S. DE LEON, IL as

Successor Trustee of the Trust of the DELFINA AND JOSEFINA ALEXANDER FAMILY

TRUST and the three (3) separate trust funds, known as the ROCIO GONZALEZ GUERRA

TRUST; VIDAL GERAFtDO GU1ERRA, III TRUST and MAYELA ALEXANDRA GUERRA

TRUST.

5. Additionally, several provisions of the trust should be modified and replaced in their

entirety with the provisions provided below.

It is therefore ORDERED, ADJUDGED and DECREED that:

1. The prior resignations ofi osefina Alexander Gonzalez and A.E. Puig, Sr„ as Trustee

of the Trust are confirmed and the declination of Lawrence Puig to serve as successor Trustee is

acknowledged.

2. RAYMOND S. DE LEON, II. is hereby appointed as Successor Trustee of the

Trust, and, as Trustee, shall have all of the rights, powers and privileges conferred on Trustees by

the Texas Property Code Annotated (as it relates to trusts) and shall be subject to all of the duties,

responsibilities and conditions imposed upon trustees by the Texas Property Code, unless such

rights, powers and privileges conflict with the Trust or this Agreed Judgment, in which event, the

Trust or this Agreed Judgment shall control.

3. RAYMOND S. DE LEON, II. is hereby released from any duty imposed by the

Texas Property Code including, but not limited to, Section 114.002 of the Texas Property Code (the

Texas Trust Code) to review the accounts, records or actions of any previous trustee and/or

beneficiary of the Trust.

2
4. RAYMOND S. DE LEON, D. is released from (a) any and all accounts, records or

acts of the previous trustees of the Trust, (b) any and all claims, if any, related to any environmental

hazards or conditions affecting any real estate now or previously owned by the Trust which may

constitute a violation of federal, state or local statutes, regulations, ordinances or other requirements

of law (collectively "Environmental Claims"), and (c) any and all claims, if any, asserted by the

Internal Revenue Service related to any tax return previously filed by the Trust or any other federal

tax matter relating to the Trust (collectively 'Tax Claims"). RAYMOND S. DE LEON, II. is

specifically authorized to pay, settle and dispose of all Environmental Claims and Tax Claims, i fany,

out of the assets of the Trust to the extent such assets are available to pay, settle OT dispose of such

claims.

5. All books and records of the Trust, including but not limited to limited partnership

agreements, records, tax returns, files and documents related to the assets of the Trust, shall be

delivered to RAYMOND S. DE LEON, 11. within ten (10) days from the date of this Judgment by

any individual or entity possessing same, including all books and records relating to Alexander

Residential Development, L.P., Alexander Commercial Development, L.P., Alexander Retail

Development, L.P., D&J Alexander Construction, L.P. and Alexander Management, L.P. and

Delfina E. & Josefina Alexander, LLC-l.

6. 1T IS FURTHER ORDERED AND DECREED that the Section 10. and 11. of the

original Trust Agreement of the DELFINA AND JOSEFINA ALEXANDER FAMILY TRUST

are hereby deleted in their entirety and replaced with the following provisions, to-wit:

"Section 10. Compensation of Trustees. Any person who serves as a trustee may elect to

receive a reasonable compensation, reasonable compensation to be measured by the time required

3

68
in administration and settlement and the responsibility assumed in the discharge of the duties of

office. A corporate trustee will be entitled to receive as its compensation such fees as are then

prescribed by its published schedule of charges for trusts and estates of a similar size and nature and

additional compensation for extraordinary services performed by the corporate trustee. A trustee will

be entitled to full reimbursement for reasonable expense, costs or other obligations incurred as the

result of service, including attorney's, accountant's and other professional fees."

"Section 11. Resignation or Removal of Trpstee and Appointment of Successor.

1. Resignation of Trustee: The Trustee herein above named or any Successor

Trustee may at any time resign from one or all of the Trusts created herein upon giving to the

Adult Trust Beneficiaries then receiving or entitled to receive Income from such Trusts, or

if some of the beneficiaries are then minors, to the parents or legal guardians of each Minor

Beneficiary then receiving or entitled to receive Income from such Trusts, thirty (30) days

written notice of such resignation.

2. Removal of Trustee: The Trustee herein above named or any Successor

Trustee may at any time be removed from one or all of the Trusts created herein upon the

giving of thirty (30) days written notice of such removal, executed by a majority of the Adult

Trust Beneficiaries then receiving or entitled to receive Income from the Trusts, or if some

of the beneficiaries are then minors, by a majority of the parents or legal guardians of the

Minor Beneficiaries then receiving or entitled to receive Income from the Trust.

3. Appointmentof Successor Trustee: In the event RAYMOND S. DE LEON,

II. should fail to qualify, or if after qualifying, shall resign, or otherwise cease to serve as

the Trustee of one or all of the trusts created herein for any reason, then in such event a

4

69
majority of the Trust beneficiaries (including a beneficiarys natural or legal guardian or legal

representative, in the case of a beneficiary under a legal disability) who might then be entitled

to receive a distribution from the Tnist estate shall have the power to appoint as successor

Trustee any national or state bank or Trust company possessing Trust powers and having a

capital, surplus and undivided profits of at least One Hundred Million Dollars, or individual

regardless of domicile. Such appointment shall be by written instrument duly executed and

acknowledged by the appointing parties and by the successor Trustee and filed in the Deed

Records of Webb County, Texas. If a successor Trustee is not appointed as herein above

provided, then a court of competent jurisdiction shall appoint a successor Trustee with the

qualifications set forth above, and the costs associated with such a court proceeding shall be

paid from the Trust or Trusts for which the successor Trustee is appointed. Except as may

be provided by such Court, no bond shall be required of the original or contingently provided

for Trustee(s)."

SIGNED this day of March, 2012.

Oscar J. Hale, Jr.

State District Judge

4045th Judicial District Court

Webb County, Texas

A True copy of the original, l certify,

the (oo day of. ,20 / 

ESTHER DEGOLLADO

Clerk of the District Courts and

County 

C, SI 

Webb County, Texas

By 41 ,0 Deputy

70
Approved as to Content:

I0 GONZALEZ GLTERRA, Individually and as

Next Friend of VIDAL GERARDO GUERRA, III, Minor

and as Next Friend of MAYELA ALEXANDRA GUERRA, Minor

APPROVED AS TO FORM:

Thomas G. Bossier

Attorney at Law

306 W. Sunset, Suite 119

San Antonio, Texas 78209

Telephone (210) 826-8885

Telefax (210) 286-2236

State Bar No. 01894300

Attorney for Applicant,

ROCIO GONZALEZ GUERRA

6

71
APPENDIX

D
§ 111.004. Definitions, TX PROPERTY § 111.004

Vernon's Texas Statutes and Codes Annotated

Property Code (Refs & Annos)

Title 9. Trusts (Refs & Annos)

Subtitle B. Texas Trust Code: Creation, Operation, and Termination of Trusts (Refs & Annos)

Chapter 111. General Provisions (Refs & Annos)

V.T.C.A., Property Code § 111.004

§ 111.004. Definitions

Effective: September 1, 2 013

Currentness

In this subtitle:

(1) "Affiliate includes:

(A) a person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common

control with another person; or

(B) any officer, director, partner, employee, or relative of a person, and any corporation or partnership of which a person

is an officer, director, or partner.

(2) "Beneficiary" means a person for whose benefit property is held in trust, regardless of the nature of the interest.

(3) "Court" means a court of appropriate jurisdiction.

(4) "Express trust" means a fiduciary relationship with respect to property which arises as a manifestation by the settlor of

an intention to create the relationship and which subjects the person holding title to the property to equitable duties to deal

with the property for the benefit of another person.

(5) "Income" is defined in Section 116.002.

(6) "Interest" means any interest, whether legal or equitable or both, present or future, vested or contingent, defeasible or

indefeasible.

(7) "Interested person" means a trustee, beneficiary, or any other person having an interest in or a claim against the trust or

any person who is affected by the administration of the trust. Whether a person, excluding a trustee or named beneficiary, is

an interested person may vary from time to time and must be determined according to the particular purposes of and matter

involved in any proceeding.

.Ne.s.tlawNext 1 - © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 111.004. Definitions, TX PROPERTY § 111.004

(8) "Internal Revenue Code means the Internal Revenue Code of 1954, as amended, I or any corresponding statute

subsequently in effect.

(9) "Inventory value means the cost of property purchased by a trustee, the market value of property at the time it became

subject to the trust, or, in the case of a testamentary trust, any value used by the trustee that is finally determined for the

purposes of an estate or inheritance tax.

(10) "Person" means:

(A) an individual;

(B) a corporation;

(C) a limited liability company;

(D) a partnership;

(E) a joint venture;

(F) an association;

(G) a joint-stock company;

(H) a business trust;

(I) an unincorporated organization;

(J) two or more persons having a joint or common interest, including an individual or a corporation acting as a personal

representative or in any other fiduciary capacity;

(K) a government;

(L) a governmental subdivision, agency, or instrumentality;

(M) a public corporation; or

(N) any other legal or commercial entity.

Westiavytlea © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2
§ 111.004. Definitions, TX PROPERTY § 111.004

(11) "Principal" is defined in Section 116.002.

(12) "Property" means any type of property, whether real, tangible or intangible, legal, or equitable, including property held in

any digital or electronic medium. The term also includes choses in action, claims, and contract rights, including a contractual

right to receive death benefits as designated beneficiary under a policy of insurance, contract, employees' trust, retirement

account, or other arrangement.

(13) "Relative" means a spouse or, whether by blood or adoption, an ancestor, descendant, brother, sister, or spouse of any

of them.

(14) "Settlor" means a person who creates a trust or contributes property to a trustee of a trust. If more than one person

contributes property to a trustee of a trust, each person is a settlor of the portion of the property in the trust attributable to

that person's contribution to the trust. The terms "grantor" and "trustor" mean the same as "settlor."

(15) "Terms of the trust" means the manifestation of intention of the settlor with respect to the trust expressed in a manner

that admits of its proof in judicial proceedings.

(16) "Transaction" means any act performed by a settlor, trustee, or beneficiary in relation to a trust, including the creation

or termination of a trust, the investment of trust property, a breach of duty, the receipt of trust property, the receipt of income

or the incurring of expense, a distribution of trust property, an entry in the books and records of the trust, and an accounting

by a trustee to any person entitled to receive an accounting.

(17) "Trust property" means property placed in trust by one of the methods specified in Section 112.001 or property otherwise

transferred to or acquired or retained by the trustee for the trust.

(18) "Trustee" means the person holding the property in trust, including an original, additional, or successor trustee, whether

or not the person is appointed or confirmed by a court.

(19) "Employees' trust" means:

(A) a trust that forms a part of a stock-bonus, pension, or profit-sharing plan under Section 401, Internal Revenue Code

of 1954 (26 U.S.C.A. Sec. 401 (1986));

(B) a pension trust under Chapter 111; and

(C) an employer-sponsored benefit plan or program, or any other retirement savings arrangement, including a pension plan

created under Section 3, Employee Retirement Income Security Act of 1974 (29 U.S.C.A. Sec. 1002 (1986)), regardless

of whether the plan, program, or arrangement is funded through a trust.

WestlawNext © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3
§ 111.004. Definitions, TX PROPERTY § 111.004

(20) "Individual retirement account' means a trust, custodial arrangement, or annuity under Section 408(a) or (b), Internal

Revenue Code of 1954 (26 U.S.C.A. Sec. 408 (1986)).

(21) "Retirement account' means a retirement-annuity contract, an individual retirement account, a simplified employee

pension, or any other retirement savings arrangement.

(22) "Retirement-annuity contract' means an annuity contract under Section 403, Internal Revenue Code of 1954 (26

U.S.C.A. Sec. 403 (1986)).

(23) "Simplified employee pension" means a trust, custodial arrangement, or annuity under Section 408, Internal Revenue

Code of 1954 (26 U.S.C.A. Sec. 408 (1986)).

(24) "Environmental law" means any federal, state, or local law, rule, regulation, or ordinance relating to protection of the

environment.

(25) "Breach of trust' means a violation by a trustee of a duty the trustee owes to a beneficiary.

Credits

Added by Acts 1983, 68th Leg., p. 3332, ch. 567, art. 2, § 2, eff. Jan. 1, 1984. Amended by Acts 1987, 70th Leg., ch. 741,

§§ 1, 2, eff. Aug. 31, 1987; Acts 1993, 73rd Leg., ch. 846, § 28, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 642, § 14, eff.

Sept. 1, 1995; Acts 2003, 78th Leg., ch. 659, § 2, eff. Jan. 1, 2004; Acts 2003, 78th Leg., ch. 1103, § 2, eff. Jan. 1, 2004; Acts

2005, 79th Leg., ch. 148, § 3, eff. Jan. 1, 2006; Acts 2007, 80th Leg., ch. 451, § 3, eff. Sept. 1, 2007; Acts 2013, 83rd Leg.,

ch. 699 (H.B. 2913), § 1, eff. Sept. 1, 2013.

Notes of Decisions (31)

Footnotes

1 26 U.S.C.A. § 1 et seq.

V. T. C. A., Property Code § 111.004, TX PROPERTY § 111.004

Current through the end of the 2013 Third Called Session of the 83rd Legislature

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APPENDIX
§ 112.054. Judicial Modification or Termination of Trusts, TX PROPERTY § 112.054

Vernon's Texas Statutes and Codes Annotated

Property Code (Refs & Annos)

Title 9. Trusts (Refs & Annos)

Subtitle B. Texas Trust Code: Creation, Operation, and Termination of Trusts (Refs & Annos)

Chapter 112. Creation, Validity, Modification, and Termination of Trusts

Subchapter C. Revocation, Modification, and Termination of Trusts (Refs & Annos)

V.T.C.A., Property Code § 112.054

§ 112.054. Judicial Modification or Termination of Trusts

Effective: January 1, 2006

Currentness

(a) On the petition of a trustee or a beneficiary, a court may order that the trustee be changed, that the terms of the trust be

modified, that the trustee be directed or permitted to do acts that are not authorized or that are forbidden by the terms of the

trust, that the trustee be prohibited from performing acts required by the terms of the trust, or that the trust be terminated in

whole or in part, if:

(1) the purposes of the trust have been fulfilled or have become illegal or impossible to fulfill;

(2) because of circumstances not known to or anticipated by the settlor, the order will further the purposes of the trust;

(3) modification of administrative, nondispositive terms of the trust is necessary or appropriate to prevent waste or avoid

impairment of the trust's administration;

(4) the order is necessary or appropriate to achieve the settlor's tax objectives and is not contrary to the settlor's intentions; or

(5) subject to Subsection (d):

(A) continuance of the trust is not necessary to achieve any material purpose of the trust; or

(B) the order is not inconsistent with a material purpose of the trust.

(b) The court shall exercise its discretion to order a modification or termination under Subsection (a) in the manner that conforms

as nearly as possible to the probable intention of the settlor. The court shall consider spendthrift provisions as a factor in making

its decision whether to modify or terminate, but the court is not precluded from exercising its discretion to modify or terminate

solely because the trust is a spendthrift trust.

(c) The court may direct that an order described by Subsection (a)(4) has retroactive effect.

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§ 112.054. Judicial Modification or Termination of Trusts, TX PROPERTY § 112.054

(d) The court may not take the action permitted by Subsection (a)(5) unless all beneficiaries of the trust have consented to the

order or are deemed to have consented to the order. A minor, incapacitated, unborn, or unascertained beneficiary is deemed to

have consented if a person representing the beneficiary's interest under Section 115.013(c) has consented or if a guardian ad

litem appointed to represent the beneficiary's interest under Section 115.014 consents on the beneficiary's behalf.

Credits

Added by Acts 1983, 68th Leg., p. 3332, ch. 567, art. 2, § 2, eff. Jan. 1, 1984. Amended by Acts 1985, 69th Leg., ch. 149, §

1, eff. May 24, 1985; Acts 2005, 79th Leg., ch. 148, § 7, eff. Jan. 1, 2006.

Notes of Decisions (25)

V. T. C. A., Property Code § 112.054, TX PROPERTY § 112.054

Current through the end of the 2013 Third Called Session of the 83rd Legislature

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APPENDIX
§ 115.011. Parties, TX PROPERTY § 115.011

Vernon's Texas Statutes and Codes Annotated

Property Code (Refs & Annos)

Title 9. Trusts (Refs & Annos)

Subtitle B. Texas Trust Code: Creation, Operation, and Termination of Trusts (Refs & Annos)

Chapter 115. Jurisdiction, Venue, and Proceedings

Subchapter B. Parties, Procedure, and Judgments

V.T.C.A., Property Code § 115.011

§ 115.011. Parties

Effective: September 1, 2011

Currentness

(a) Any interested person may bring an action under Section 115.001 of this Act.

(b) Contingent beneficiaries designated as a class are not necessary parties to an action under Section 115.001. The only

necessary parties to such an action are:

(1) a beneficiary of the trust on whose act or obligation the action is predicated;

(2) a beneficiary of the trust designated by name, other than a beneficiary whose interest has been distributed, extinguished,

terminated, or paid;

(3) a person who is actually receiving distributions from the trust estate at the time the action is filed; and

(4) the trustee, if a trustee is serving at the time the action is filed.

(c) The attorney general shall be given notice of any proceeding involving a charitable trust as provided by Chapter 123 of

this code.

(d) A beneficiary of a trust may intervene and contest the right of the plaintiff to recover in an action against the trustee as

representative of the trust for a tort committed in the course of the trustee's administration or on a contract executed by the trustee.

Credits

Added by Acts 1983, 68th Leg., p. 3332, ch. 567, art. 2, § 2, eff. Jan. 1, 1984. Amended by Acts 1995, 74th Leg., ch. 172,

§ 1, eff. Sept. 1, 1995; Acts 2005, 79th Leg., ch. 148, § 23, eff. Jan. 1, 2006; Acts 2011, 82nd Leg., ch. 657 (S.B. 1197), §

6, eff. Sept. 1, 2011.

Notes of Decisions (32)

V,/esttavy.Next- © 2015 Thomson Reuters. No claim to original U.S. Governrnent Works. 1
§ 115.011. Parties, TX PROPERTY § 115.011

V. T. C. A., Property Code § 115.011, TX PROPERTY § 115.011

Current through the end of the 2013 Third Called Session of the 83rd Legislature

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APPENDIX
§ 115.013. Pleadings and Judgments, TX PROPERTY § 115.013

Vernon's Texas Statutes and Codes Annotated

Property Code (Refs & Annos)

Title 9. Trusts (Refs & Annos)

Subtitle B. Texas Trust Code: Creation, Operation, and Termination of Trusts (Refs & Annos)

Chapter 115. Jurisdiction, Venue, and Proceedings

Subchapter B. Parties, Procedure, and Judgments

V.T.C.A., Property Code § 115.013

§ 115.013. Pleadings and Judgments

Effective: September 1, 2009

Currentness

(a) Actions and proceedings involving trusts are governed by this section.

(b) An affected interest shall be described in pleadings that give reasonable information to an owner by name or class, by

reference to the instrument creating the interest, or in other appropriate manner.

(c) A person is bound by an order binding another in the following cases:

(1) an order binding the sole holder or all coholders of a power of revocation or a presently exercisable general power of

appointment, including one in the form of a power of amendment, binds other persons to the extent their interests, as objects,

takers in default, or otherwise are subject to the power;

(2) to the extent there is no conflict of interest between them or among persons represented:

(A) an order binding a guardian of the estate or a guardian ad litem binds the ward; and

(B) an order binding a trustee binds beneficiaries of the trust in proceedings to review the acts or accounts of a prior

fiduciary and in proceedings involving creditors or other third parties;

(3) if there is no conflict of interest and no guardian of the estate or guardian ad litem has been appointed, a parent may

represent his minor child as guardian ad litem or as next friend; and

(4) an unborn or unascertained person who is not otherwise represented is bound by an order to the extent his interest is

adequately represented by another party having a substantially identical interest in the proceeding.

(d) Notice under Section 115.015 shall be given either to a person who will be bound by the judgment or to one who can bind

that person under this section, and notice may be given to both. Notice may be given to unborn or unascertained persons who

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§ 115.013. Pleadings and Judgments, TX PROPERTY § 115.013

are not represented under Subdivision (1) or (2) of Subsection (c) by giving notice to all known persons whose interests in the

proceedings are substantially identical to those of the unborn or unascertained persons.

Credits

Added by Acts 1983, 68th Leg., p. 3332, ch. 567, art. 2, § 2, eff Jan. 1, 1984. Amended by Acts 2009, 81st Leg., ch. 672,

§ 4, eff. Sept. 1, 2009.

Notes of Decisions (5)

V. T. C. A., Property Code § 115.013, TX PROPERTY § 115.013

Current through the end of the 2013 Third Called Session of the 83rd Legislature

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APPENDIX
§ 19. Deprivation of life, liberty, etc.; due course of law, TX CONST Art. 1, § 19

Vernon's Texas Statutes and Codes Annotated

Constitution of the State of Texas 1876 (Refs & Annos)

Article I. Bill of Rights (Refs & Annos)

Vernon's Ann.Texas Const. Art. 1, § 19

§ 19. Deprivation of life, liberty, etc.; due course of law

Currentness

Sec. 19. No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner

disfranchised, except by the due course of the law of the land.

Editors' Notes

INTERPRETIVE COMMENTARY

2007 Main Volume

Section 19 of the Texas Bill of Rights is a due process of law provision and has been included in all of the Texas

Constitutions. The words "due process of law" or "due course of the law of the lane are the equivalent of the phrase

"law of the lane in Magna Carta.

This provision has been construed by the courts as affording several types of protection. It has been said that "when

the great barons of England wrung from King John, at the point of the sword, the concession that neither their lives

nor their property should be disposed of by the crown, except as provided by the law of the land, they meant by 'law

of the land' the ancient and customary laws of the English people, or laws enacted by the Parliament. . . .. It was not

in their minds, therefore, to protect themselves against enactment of laws by the Parliament of England." Davidson

v. New Orleans, 96 U.S. 97, 24 L.Ed. 616 (1878).

Therefore, originally the due process clause was construed as applying to the method of making a judicial or

administrative decision. It applied directly to the machinery or procedure by which people were tried for crime, by

which property rights were adjudicated, by which the powers of eminent domain and taxation were exercised. In

short, legal proceedings were and are required to be conducted by the rules and forms established for the protection

of private rights. Otherwise, life, liberty or property would be taken without due process of law so as to be violative

of the fundamental principles. See Steddum v. Kirby Lumber Co., 110 T. 513, 221 S.W. 920 (1920).

As applied to procedure, due process requires a fair and impartial trial before a competent tribunal. Vogt v. Bexar

County, 5 Tex.App. 272, 23 S.W. 1044 (1893). Included within this requisite is an opportunity to be heard, and

reasonable opportunity to prepare for the hearing, which, of course, encompasses reasonable notice of the claim or

charge against an individual so as to advise him of the nature thereof, and of the relief sought. State ex rel. Merriman

v. Ball, 116 T. 527, 296 S.W. 1085 (1927), Steddum v. Kirby Lumber Co. supra.

The right to a hearing requires a judicial examination of every issue that, according to established procedure, may

affect the attainment of a legal trial, and in such atrial determine the cause according to law. Freeman v. Ortiz, 106

T. 1, 153 S.W. 304 (1913). There should be opportunity given to cross examine witnesses and to produce witnesses

and to be heard on questions of law. Steddum v. Kirby Lumber Co., supra.

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§ 19. Deprivation of life, liberty, etc.; due course of law, TX CONST Art. 1, § 19

Due process of law not only includes procedural protection, but also substantive protection. It is a direct constitutional

restraint upon the substance of legislation and means that a legislative curtailment of personal or property rights must

be justified by a resultant benefit to the public welfare. Thus the due process guaranty does not restrain the state in

the exercise of its legitimate police powers. See City of New Braunfels v. Waldschmit, 109 T. 302, 207 S.W. 303

(1918). Houston & Tex. Cent. Ry. Co. v. Dallas, 98 T. 396, 84 S.W. 648 (1905). Both liberty and property are subject

to the exercise of these powers.

Nevertheless, the exercise of the police powers is not unrestricted, but is limited to enactments having reference to the

public health, comfort, safety and welfare. It must not be arbitrary, unreasonable, or patently beyond the necessities of

the case, and the means which it employs must have a real and substantial relation to the object sought to be attained.

See Spann v. City of Dallas, 111 T. 350, 235 S.W. 513 (1921), Houston & T.C. Ry. Co. v. City of Dallas, supra;

American Federation of Labor v. Mann, Civ.App., 188 S.W.2d 276 (1945).

In substantive due process cases, the courts balance the gain to the public welfare resulting from the legislation against

the severity of its effect on personal and property rights. Every exercise of the police power involves a restraint upon

individual freedom of action or the free use of property based upon some social need which presumably justifies the

restraint. Hence, a law is unconstitutional as violating due process when it is arbitrary or unreasonable, and the later

occurs when the social necessity the law is to serve is not a sufficient justification of the restriction of liberty involved.

For example, the police power may be constitutionally exercised to destroy property where the social necessity or

interest involved is the prevention of the spread of disease or conflagration. Chambers v. Gilbert, 17 Tex.App. 106,

42 S.W. 630, error refused (1897); Keller v. City of Corpus Christi, 50 T. 614 (1879). Again the liberty of contract

between employers and employees may be regulated under the police power by limiting the hours of labor in order

to promote the public health. See Bunting v. State of Oregon, 37 S.Ct. 435, 243 U.S. 426, 61 L.Ed. 830 (1916).

The Federal Constitution, in the fifth and fourteenth amendments, also provides against deprivation of life, liberty or

property without due process of law, the fourteenth amendment by its language being applicable to prevent the states

from carrying out such a deprivation. It has been held by Texas courts that the clause of the Texas Constitution, to

the extent that it is identical with the fourteenth amendment, has placed upon the powers of the state legislature the

same restrictions as those which have been held to be imposed by the language of that amendment of the Federal

Constitution. Mellinger v. City of Houston, 68 T. 37, 3 S.W. 249 (1887).

Notes of Decisions (2826)

Vernon's Ann. Texas Const. Art. 1, § 19, TX CONST Art. 1, § 19

Current through the end of the 2013 Third Called Session of the 83rd Legislature

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