### No

. 04 -18- 00 008 -CV Court of Appeals, Fourth District San Antonio , Texas

In re Maria Cecilia Martinez
Relating to Cause No. PR

- 06

- 004 in the County Court at Law Starr County, Texas

RESPONSE TO PETITION FOR WRIT OF MANDAMUS J. Joseph Vale jvale@atlashall.com State Bar No. 24084003 O.C. Hamilton, Jr. och@atlashall.com State Bar No. 08847000 A TLAS 

### , H ALL 

### & R ODRIGUEZ 

### , LLP 818 Pecan/P.O. Box 3725 McAllen, Texas 78501 (956) 682

- 5501 (phone) (956) 686

- 6109 (facsimile)

Attorneys for Real Parties in Interest Maria Iris Trevino and Maria Del Rosario G. Pope

January 22 , 201 8 ACCEPTED 04-18-00008-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 1/22/2018 10:29 AM

### 2 Table of Contents
Index of Authorities

................................ ................................ ................................ ... 4 Statement of the Case

................................ ................................ ................................ . 7
Issues P resented

................................ ................................ ................................ ......... 8
Cross

- Issue Presented

................................ ................................ ................................ 8 Record and Party References

................................ ................................ ..................... 9 Statement of Facts

................................ ................................ ................................ .... 10
1. The six independent co

- executors entered an agreement that required majority agreement as to some decisions.

............................ 10 2. Administration languished without distribution for over a decade.

................................ ................................ ................................ . 12 3. The co

- executors reached a unanimous agreement in open court in November 2016 to take steps to distribute the estate.

..................... 12 4. The trial court entered an order in January 2017 expressly based on that agreement, and a majority of the executors approved the order

. ................................ ................................ ................................ .... 14 5. The trial court denied Co

- Executrix Maria Cecilia Martinez’s plea to the jurisdiction in May 2017 and planned to hear other motions.

................................ ................................ ............................... 15 6. This Court dismissed Martinez’s first attempt at mandamus for want of jurisdiction, and the trial court then amended the May 2017 Order.

................................ ................................ .......................... 15 7. What remains to be done in the probate administration from Trevino and Pope’s perspective.

................................ ......................... 16 Summary of the Argument

................................ ................................ ....................... 17 Mand amus Standard

................................ ................................ ................................ . 18 Argument

................................ ................................ ................................ .................. 19
I. Martinez is not entitled to mandamus as to the January 2017 Order. {Response to Martinez’s §§ [A], [C]}.

................................ ... 19

### 3 A. Martinez failed to strictly comply with Rule 52.

...................... 19 B. The trial court had the discretion to enforce the co

exec utors’ unanimous (and later, majority approved) agreement.

................................ ................................ ................. 20 C. Martinez has an adequate appellate remedy.

............................ 26 D. Laches bars Martinez’s petition as to this order.

...................... 27
II. Martinez is not entitled to mandamus as to the May 2017 Order. {Response to Martinez’s §§ [B], [C]}

................................ ................. 29 A. The trial court has fixed the “conversion” issue by signing the January 2018 Order.

................................ ............................ 30 B. The trial court had discretion to deny Martinez’s plea to the jurisdiction.

................................ ................................ .......... 30 C. Mandamus is not the proper remedy for this ruling.

................ 31 Prayer

................................ ................................ ................................ ....................... 33 Certificate of Rule 9.4(i) Compliance

................................ ................................ ...... 34 Certification of Appendix

................................ ................................ ........................ 35
Ce rtificate of Rule 52.3(j) Compliance

................................ ................................ .... 36 Certificate of Service

................................ ................................ ............................... 37 Appendices

................................ ................................ ................................ ............... 38

### 4 Index of Authorities
Cases Bell Helicopter Textron, Inc. v. Walker , 787 S.W.2d 954 (Tex. 1990) (orig. proceeding) (per curiam)

............................. 18 Brown v. Herman , 852 S.W.2d 91 (Tex. App.

— Austin 1993, orig. proceeding)

..... 18, 26

– 27, 30

– 31 Callahan v. Giles , 155 S.W.2d 793 (Tex. 1941) (orig. proceeding)

................................ .................. 27 Crossley v. Staley , 988 S.W.2d 791 (Tex. App.

— Amarillo 1999, no pet.)

................................ ........ 21 D’Unger v. De Pena , 931 S.W.2d 533 (Tex. 1996) (orig. proceeding) (per curiam)

...................... 18, 26 Dodson v. Seymour , 664 S.W.2d 158 (Tex. App.

— San Antonio 1983, no writ)

................................ . 20 Estate of Lee , 981 S.W.2d 288 (Tex. App.

— Amarillo 1998, pet. denied)

.............. 22, 23, 24, 26 Furr’s Supermarkets, Inc. v. Mulanax , 897 S.W.2d 442 (Tex. App.

— El Paso 1995, orig. proceeding [leave denied])

................................ ................................ ................................ ................. 28 Gregory v. Rice , 678 S.W.2d 603 (Tex. App.

— Houston [14th Dist.] 1984, writ ref’d n.r.e.)

........ 21 In re Bay Are a Citizens Against Lawsuit Abuse , 982 S.W.2d 371 (Tex. 1998) (orig. proceeding)

................................ .................. 18 In re BP Prods. N. Am., Inc. , 244 S.W.3d 840 (Tex. 2008) (orig. proceeding)

................................ .................. 26 In re Brent W. Coon, P.C. , No. 09

- 09

- 00263

- CV, 2009 Tex. App. LEXIS 7434, 2009 WL 3030355 (Tex. App.

— Beaumont Sep. 24, 2009, orig. proceeding) (mem. op.)

................. 26

### 5 In re Graham , 971 S.W.2d 56 (Tex. 1998) (orig. proceeding)

................................ .................... 23 In re Hunting , No. 05

- 15

- 00200

- CV, 2015 Tex. App. LEXIS 1684, 2015 WL 737408 (Tex. App.

— Dallas Feb. 20, 2015, orig. proceedin g) (mem. op.)

................. 19, 20 In re Int’l Profit Assocs. , 274 S.W.3d 672 (Tex. 2009) (orig. proceeding) (per curiam)

............................. 27 In re Jindal Saw Ltd. , 264 S.W.3d 755 (Tex. App.

— Houston [1st Dist.] 2008, orig. proceeding)

........ 27 In re Kuster , 363 S.W.3d 287 (Tex. App.

— Amaril lo 2012, orig. proceeding [habeas denied])

................................ ................................ ................................ ................. 31 In re Laibe Corp. , 307 S.W.3d 314 (Tex. 2010) (orig. proceeding) (per curiam)

............................. 27 In re Le , 335 S.W.3d 808 (Tex. App.

— Houston [14th Dist.] 2011, orig. proceeding)

................................ ................................ ................................ ........... 20 In re McAllen Med. Ctr., Inc. , 275 S.W.3d 458 (Tex. 2008) (orig. proceeding)

................................ .................. 32 In re Melcher , No. 14

- 16

- 00130

- CV, 2017 Tex. App. LEXIS 2490, 2017 WL 1103549 (Tex. App.

— Houston [14th Dist.] Mar. 23, 2017, orig. proceeding) (mem. op.)

... 28

– 29 In re Olshan Found. Repair Co. , 328 S.W.3d 883 (Tex. 201 0) (orig. proceeding)

................................ .................. 18 In re Salinas , No. 13

- 09

- 00599

- CV, 2010 Tex. App. LEXIS 395, 2010 WL 196887 (Tex. App.

— Corpus Christi Jan. 20, 2010, orig. proceeding) (mem. op.) (per curiam)

................................ ................................ ................................ .......... 28 Int’l Awards, Inc. v. Medina , 900 S.W.2d 934 (Tex. App.

— Amarillo 19 95, orig. proceeding)

........................ 28

### 6 Kanan v. Plantation Homeowner’s Ass’n , 407 S.W.3d 320 (Tex. App.

— Corpus Christi 2013, no pet.)

............................... 21 Marshall v. Hobert Estate , 315 S.W.2d 604 (Tex. Civ. App.

— Eastland 1958, writ ref’d) (per curiam)

....... 24 Rivercenter Assocs. v. Rivera , 858 S.W.2d 366 (Tex. 1993) (orig. proceeding)

................................ ............ 27

– 28 Seay v. Hall , 677 S.W.2d 19 (Tex. 1984)

................................ ................................ .................. 22 Shepherd v. Ledford , 962 S.W.2d 28 (Tex. 1998)

................................ ................................ .................. 21 Walker v. Packer , 827 S.W.2d 833 (Tex. 1992) (orig. proceeding)

................................ ........... 18, 26 Statutes and Rules Act of May 17, 1979, 66th Leg., R.S., ch. 713, § 3, sec. 5A, 1979 Tex. Gen. Laws 1740

................................ ................................ ................................ ............. 22 Act of May 17, 1985, 69th Leg., R.S., ch. 875, § 1, 1985 Tex. Gen. Laws 2995

................................ ................................ ................................ ................ 22

– 23 Act of May 31, 2009, 81st Leg., R.S., ch. 1351, 2009 Tex. Gen. Laws 4273

... 22, 2 3 Tex. Est. Code Ann. § 307.002 (LexisNexis, Lexis Advance through 2017 r.s. & 1st c.s.)

................................ ................................ ................................ .. 11, 12 Tex. Est. Code Ann. § 31.001 (LexisNexis, Lexis Advance through 2017 r.s. & 1st c.s.)

................................ ................................ ................................ .............. 24 Tex. Est. Code Ann. § 32.001 (LexisNexis, Lexis Advance through 2017 r. s. & 1st c.s.)

................................ ................................ ................................ .............. 24 Tex. R. App. P. 52

................................ ................................ ................................ .... 19 Tex. R. Civ. P. 11

................................ ................................ ................................ ..... 21 Texas Probate Code, 54th Leg., R.S., ch. 55, 1955 Tex. Gen. Laws 88

.......... 11, 23

### 7 Statement of the Case
Nature of the case Probate administration. Respondent Hon. Romero Molina, County Court at Law, Starr County, Texas Orders from which relator seeks relief January 26, 2017 Pre

- Trial Order. M.R. at 113 (Ex. H). May 22, 2017 Order Denying Plea to Jurisdiction. M.R. at 138 (Ex. J).

### 8 Issue s Presented
1. The independent co

- executors of an est ate announced a unanimous partial settlement of the next steps of the administration in open court through counsel . The probate court entered an order expressly according to that agreement.
T his Court should reject an executor’s mandamus challenge that f ails to acknowledge the open court agreement underlying this order. See Argument § I.

a. The co

- executors had previously entered an agreement that required a majority vote to approve some decisions. This Court should reject an executor’s mandamus petition when counsel for five of the six co

- executors approved the above

- mentioned order as to form and substance.
2. An independent co

- executor filed a “plea to the jurisdiction” asserting that the probate court “should exercise no further jurisdiction ” in the administration

. The probate court denied this plea and intends to rule on the motions before it but has not yet done so. M andamus should be denied concerning this order

. See
A rgument § II

. Cross
- Issue Presented
1. Concerning Issue 1 above, the relator waited four months after the order was issued and six months after the underlying agreement to file her petition for writ of mandamus. H er mandamus petition is barred by laches

. See A rgument § I.D

.

### 9 Record and Party References Real Parties in Interest Maria Iris Trevino and Maria Del Rosario G. Pope file
this Response pursuant to Rule 52 of the Texas Rules of Appellate Procedure. Parties will be referred to as in the trial court or by name.
For ease of reference, Relator Maria Cecilia Martinez’s Exhibits in Support of Petition for Writ of Mandamus will be cited according to the PDF page number and will be referred to as “M.R. at {page} (Ex. {letter}).” For example, the first page of Exhibit A would b e cited as “M.R. at 4 (Ex. A).” The transcript filed by Martinez on January 18, 2018, will be cited as “1/9/18 R.R. at {page}.” The appendices attached to this response will be referred to as “App. Tab {letter}.” Trevino and Pope have also filed a First Supplemental Record on Mandamus Volume, which will be cited as “Supp l . M.R. at {page}” according to the bates stamped page number for that volume.

### 10 Statement of Facts This mandamus action returns to this Court after the Court dismissed the previous version for want of jurisdiction in appellate cause number 04

- 17

- 00333

- CV ( Martinez I ). While Relator Maria Cecilia Martinez’s mandamus petition is virtually the same as in Martinez I , the trial court has since amended one of the orders at issue to remove langua ge that arguably “converted” the underlying probate administration from independent to dependent. Three trial court orders are pertinent to this mandamus:
1. the January 2017 Order signed January 26, 2017, according to a partial settlement agreement entered i n open court in November 2016 (M.R. at 113 (Ex. H)); 2. the May 2017 Order signed May 22, 2017, which denied Martinez’s plea to the jurisdiction (M.R. at 138 (Ex. J)); and 3. the January 2018 Order signed January 9, 2018, which amended the May 2017 Order by dele ting the alleged “conversion” language (Suppl. M.R. at 80 (App. Tab H)). With the alleged conversion issue resolved, this Court should deny Martinez’s petition for writ of mandamus as to all issues

. 1. The six independent co
- executors entered an agreement that required majority agreement as to some decisions . Ignacia Gutierrez died testate on January 4, 2006. M.R. at 57 ¶ 2 (Ex. E

- 1)

. Through a codicil, Ignacia appointed four of her six children to serve as independent

co - executors with the four to be chosen by a majority vote of the six. Id. at 1 8 § II (Ex. A

– 1st Codicil )

. Her children decided otherwise and agreed that all six chil dren

### 11 would serve as co

- executors. Id. at 28 (Ex. C -1). The trial court obliged and ordered that letters be issued to all six in March 2006

. Id. at 26 (Ex. B)

. The six co

- executors are Maria Celeste G. Narro, Maria Del Rosario G. Pope ( a/k/a Maria Rosario G. Pope) , Jose Ignacio Gutierrez, Maria Minerva G. Guerra, Maria Cecilia G. Martinez, and Maria Iris Trevino ( a/k/a Maria Iris G. Trevino)

. See id. The children also agreed “that any significant decisions involving more than $1,00 0.00 will be taken by a majority of the six, instead of any individual executors.” Id. at 38 (Ex. C

- 2)

. This agreement implicitly purports to modify the Estates Code ’s default rule, which permits each independent co - executor to act on behalf of the estate in any decision without requiring the agreement of other co

- executors except for the conveyance of real estate

. See Tex. Est

. Code Ann. § 307.002 (LexisNexis, Lexis Advance through 2017 r.s. & 1st c.s. ) ( App. Tab C). 1

1 As discussed below, the 2006 Probate Code applies to the pertinent jurisdictional analysis. See infra Argument § I.B. & n. 5 . That said, the outcome of this mandamus should be the same under the Estates Code as well. Copies of pertinent statutes from the 2006 Probate Code are included in the appendix. The copies are taken from the 2006 edition of Prof. Stanley M. Johanson’s Texas Probate Code Annotated

. See App. Tabs D

– F. The 2006 Probate Code’s Section 240 was similar to the current Estates Code Section 307.002

. Texas Probate Code, 54th Leg., R.S., ch. 55, § 1, sec. 240, 1955 Tex. Gen. Laws 88, 160, repealed by Act of May 30, 2009, 81st Leg., R.S., ch. 680, § 1 0(a) , 2009 Tex. Gen. Laws 1512, 1731; A pp. Tab D. The original session law for Section 240 is available here: http://www.lrl.texas.gov/scanned/sessionLaws/54-0/SB_97_CH_55.pdf . The repealing session law is available here: http://www.lrl.texas.gov/scanned/sessionLaws/81- 0/HB_2502_CH__680.pdf

.

### 12 2. Administration languished without distribution for over a decade . Despite those initial agreements, the estate remains undistributed. See M.R.
at 57 ¶ 2 (Ex. E

- 1)

. Contrary to Martinez’s depiction , a ll executors (including Martinez) sought the court’s guidance in the passing decade. See id. at 1 30

– 31 ¶ 3 (Ex. I

- 3) (listing Martinez’s numerous motions ). Co- Executors Maria Iris Trevino
and Maria Del Rosario G. Pope have recently ask ed the trial court to exercise its statutory authority to permit the two of them to sign deeds distributing the portions of the estate l eft to them as beneficiaries

. See id. at 57

– 59 (Ex. E

- 1) (citing Tex. Est. Code Ann. § 307.002 (b) ( App. Tab C)). Trevino and Pope have also sought distribution and approval of their accounting

. See id. at 131 ¶ 4 (Ex. I -3). 3. T he co
- executors reached a unanimous agreement in open court in November 2016 to take steps to distribute the estate . The record does not support Martinez’s claim that the co

- executors are divided into majority and minority factions with Martinez in the majority and Trevino and Pope in the minority. See Pet. 6. To the contrary, as recited in the January 2017 Order, attorneys for all six co

- executors announced a unanimous agreement concerning the next steps in the administration in a November 2016 hearing

. See M.R. at 113 (Ex. H); Suppl. M.R. at 11

– 34. Indeed, counsel for five
of the six co

- executors (all except Martinez) signed and approved the January 2017

### 13 Order as to form and substance. M.R. at 116 (Ex. H). So with regard to the January 2017 Order at least, only Martinez alone arguably constitutes the “minority faction.” Martinez does not mention this agreement or provide a transcript of that hearing to this Court

. Trevino and Pope (the co

- executors filing this response) have filed an authenticated transcript of that proceeding. See Suppl. M.R. at 11

– 34. The agreement arose a mid disputes concerning the final distr ibution of the
esta te 2 

### and concerned surveys, necessary correction deeds, funds from related litigation with third parties, a review of the books and records of the estate, an inventory of cattle on estate ranches, and preparations for the sale of the decedent’s home. See M.R. at 1 13

– 16 (Ex. H) ; Suppl. M.R. at 11

– 34

. Rigney made no objection to the agreement in the hearing , and he expressly agreed to terms at the

2 The nature of these disputes is not relevant to this Court’s analysis in this mandamus. That said, Trevino and Pope disagree with Martinez’s presentation of these disputes in her mandamus petition. They note two of these disagreements here. First , Martinez repeatedly emphasizes the year 1925 as the alleged year of origin for Trevino and Pope’s propose d property descriptions. E.g. , Pet. 5

– 7, 17 n.8. The exact year or years of origin are irrelevant to this mandamus. Moreover, Trevino and Pope’s point is simply that the estate can only convey (and must only convey) what the decedent owned, which must b e based on the property descriptions in her chain of title. New surveys will not change what title is in the decedent’s estate. If a beneficiary wants to re

- survey her property line, then the beneficiary should do so after distribution, but the estate ha s no justifiable reason to pay for these costly surveys. See M.R. at 78 (Ex. E

- 6). Trevino and Pope have acted to prevent this waste as is their duty as executors and right as beneficiaries. Trevino and Pope accordingly object to the characterization th at their position is “absolutely ridiculous.” See Pet. 7. In any event, the trial court has not ruled on this issue. Second , Martinez states that Trevino and Pope “sought to waive the statutorily required accounting.” Pet. 6. Trevino and Pope deny this allegation, and Martinez cites no record or statutory authority to support it.

### 14 trial court’s request. See, e.g. , Suppl. M.R. at 20

– 22, 31

. For example, at the trial court’s request, Rigney verbally agreed with the plan to conduct the surveys first to see if there was any real disagreement over property descriptions and who should sign the distribution deeds. See id. at 20

– 22 . Similarly, Rig ney also agreed that the executors should pay the costs of an accountant to review the records of the estate and that reimbursement by the estate could be addressed later if the records show any problems. See id. at 31

. At the end of the hearing, the tri al court thanked the parties for their settlement efforts and asked, without objection, that an order be prepared concerning the agreement. See id. at 31

– 3 2

. 4. The trial court entered an order in January 2017 expressly based on th at agreement , and a majority of the executors approved the order . T he trial court entered the January 2017 Order expressly according to the agreement announced at the November 2016 hearing. M.R. at 1 13 (Ex. H)

. 3 

### In accordance with the co

- executors’ majority

- rule agreement d escribed above ( see

3 Specifically, the January 2017 Order states: On the 17th day of November 2016, there came on before the Court in the above

- styled and numbered cause, a pretrial hearing on so me pending motions, and came the parties by and through their attorneys of record, Marcel Notzon, appearing for [Narro, Gutierrez, and Guerra], John Rigney for [ Martinez ] , and O.C. Hamilton, Jr. for [Trevino and Pope] . Prior to considering any pending mot ion, the attorneys announced that they had reached a settlement on some of the disputes which may dispose of most of the issues in the case whereupon the Court proceeded to hear the agreements of counsel, and based on such agreements, makes the following o rder

. . . . M.R. at 1 13 (Ex. H)

.

### 15 supra § 1), a majority of the six co

- executors approved the January 2017 Order “as to form and substance” through counsel. M.R. at 116 (Ex. H)

. Martinez did not file her mandamus petition in Martinez I until late May 2017, which was roughly four months after this order and more than six months after the underlying agreement. 5. The trial court denied Co
- Executrix Maria Cecilia Martinez’s p lea to the j urisdiction in May 2017 and planned to hear other mot ions. Two months after the January 2017 O rder was signed, Martinez filed a plea to the jurisdiction arguing that the trial court lacked jurisdiction to “tak[e] further steps in the administration of the Estate” and “should exercise no further jurisdiction. ” M.R. at 1 20 (Ex. I

- 1)

. 4 

### T he trial court then signed the May 2017 Order denying Martinez’s plea to the jurisdiction but ha s not yet ruled on several other motions before it. M.R. at 1 38 (Ex. J)

. 6. This Court dismissed Martinez’s first attempt at mandamus for want of jurisdiction, and the trial court then amended the May 2017 Order.
In Martinez I , the parties disagreed as to whether the trial court had “converted” the administration from independent to dependent by stating in the May

4 The other three executors besides Pope , Trevino , and Martinez had filed a plea to the jurisdiction before the November 2016 settlement hearing. M.R. at 1 23 (Ex. I

- 2) . Unlike Martinez’s plea, that plea attacked specific motions filed by Trevino and Pope

. See id. at 1 23 . The trial court has not ruled on that plea.

### 16 2017 Order that “the administration of the Estate will be treated as dependent administration.” See M.R. at 138 (Ex. J). No party had requested such a conversion.
After Martinez I , Trevino and Pope asked the trial court to clarify whether it intended to convert the administration from independent to dependent and requested that the trial court amend the May 2017 Order to remove the “treated as dependent” language. Supp l. M.R. at 36

– 37. The trial court granted Trevino and Pope’s request and signed the January 2018 Order after this Court permitted the trial court to rule on Trevino and Pope’s motion. Suppl. M.R. at 80 ( App. Tab H).
7. What remains to be done in the probate administration from Trevino and Pope’s perspective. While several motions are pending in the trial court, Trevino and Pope primarily seek to accomplish the goals listed in this section. In short, Trevino and Pope want the portion of the estate devised to them to be distributed to them. Specifically, they want to receive deeds to the real prope rty devised to them using the proper legal descriptions the decedent received, not using new surveyed descriptions. Trevino and Pope are not seeking to sign other beneficiaries’ deeds. They also want their portion of the estate funds (including royalties from oil and gas interests) to be distributed to them. Before distribution can occur, however, the trial court must approve the accounting Trevino and Pope filed.

### 17 Summary of the Argument This Court should deny mandamus as to both orders challenged by Martinez. The trial court based its January 2017 Order on a unanimous agreement of the parties entered in open court. Moreover, the co

- executors agreed that majority vote controls, and a majority of the co

- executors approved the January 2017 Order. No cl ear abuse of discretion exists as a result, and none of Martinez’s authorities overcome the policy favoring settlement agreements. The trial court had jurisdiction to enter the January 2017 Order because it pertained to the settlement and distribution of this estate and did not interfere with the independent administration. Mandamus as to the January 2017 Order is also barred due to Martinez’s failure to strictly comply with Rule 52 and under the doctrine of laches. See A rgument § I. The trial court also had discretion to deny Martinez’s plea to the jurisdiction. The trial court’s January 2018 Order removed the alleged sua sponte “conversion” of the administration from independent to dependent. Martinez’s claim that the trial court lacks jurisdiction to take further steps in the administration lacks merit

. The probate court has jurisdiction to determine its authority to rule on pending motions , and this Court should permit the probate court to do so. See A rgument § II. This estate has taken too long to be distributed. This Court should quickly deny mandamus so that this administration can finally be closed.

### 18 Mandamus Standard Mandamus will not issue unless: (1) the trial judge has committed a clear
abuse of discretion , and (2) there is no adequate rem edy on appeal

. In re Olshan Found. Repair Co. , 328 S.W.3d 883, 887

– 88 (Tex. 2010) (orig. proceeding)

. A clear abuse of discretion occurs only when a trial court “reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Walker v. Packer , 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)

. The Texas Supreme Court has held that trial court interference with independent administration without statutory authority is subject to mandamus. D’Unger v. De Pena , 931 S.W.2d 5 33, 535 (Tex. 1996) (orig. proceeding) (per curiam) . That ruling, however, must be read in light of the fact that mandamus is an extraordinary remedy not available for incidental pre - trial rulings. See Walker , 827 S.W.2d at 842

. I ncreased cost or delay involved in a trial a nd appeal generally does not render an appeal an inadequate remedy justify ing mandamus review. See id. at 840

– 42 . Denials of pleas to the jurisdiction are generally not subject to mandamus review because they have an adequat e appellate remedy. S ee e.g. , In re Bay Area Citizens Against Lawsuit Abuse , 982 S.W.2d 371, 375 (Tex. 1998) (orig. proceeding) ; Bell Helicopter Textron, Inc. v. Walker , 787 S.W.2d 954, 955 (Tex. 1990) (orig. proceeding) (per curiam) ; Brown v. Herman , 852 S.W.2d 91, 93 (Tex. App.

— Austin 1993, orig. proceeding) ( applying rule in probate court).

### 19 Argument
I. Martinez is not entitled to mandamus as to the January 2017 Order. {Response to Martinez ’s § § [A] , [C] }. This Court should deny Martinez’s request that the January 2017 Order be set aside . The trial court did not abuse its discretion by entering an order according to
the executors’ unanimous ( and later, majority approved) partial settlement of this administration, and that order does not constitute interference that would give rise to mandamus. See infra §§ I .B., C. Additionally, Martinez’s petition fails to strictly comply with Rule 52 and is barred by laches. See infr a §§ I.A., D. A. M artinez failed t o strictly comply with Rule 52 . As in Martinez I , Martinez again erroneously failed to file a transcript of the hearing held on November 17, 2016, or a statement that no testimony was adduced at that hearing. See Tex. R. App. P. 52.7(a)( 2). The January 2017 O rder is expressly based on a settlement agreement announced and presented at that hearing. M.R. at
1 13 (Ex. H). Martinez’s only statement concerning a hearing pertains to a later hearing that resulted in the May 2017 O rder. Pet. 8 n.4. A relator must strictly comply with Rule 52’s provisions concerning the appendix and record. In re Hunting , No. 05

- 15 -0 0200

- CV, 2015 Tex. App. LEXIS 1684, at *1

– 2, 2015 WL 737408 (Tex. App.

— Dallas Feb. 20, 2015, orig. proceeding) (mem. op.)

. Chief among Rule 52’s requirements is “the critical

### 20 obligation to provide the reviewing court with a complete and adequate record.” In
re Le , 335 S.W.3d 808, 813 (Tex. App.

— Houston [14th Dist.] 2011, orig. proceeding)

. Because Martinez failed to strictly comply with Rule 52’s requirements, this Court should den y mandamus as to the January 2017 Order. See,
e.g. , In re Hunting , 2015 Tex. App. LEXIS 1684, at *1

– 2

. Trevino and Pope have filed a copy of that transcript for the Court’s convenience, but Martinez’s failure should nonetheless result in mandamus being denied.
B. The trial court had the discretion to enforce the co
- executors’ unanimous ( and later , majority approved) agreement . To the extent the Court reviews the January 2017 Order, th e Court should rule that the trial court did not clearly abuse its discretion. The trial court had discretion
to enter the January 2017 Order according to the unanimous agreement the co executors entered in open court. Additionally, a majority of the co

- executors approved the January 2017 Order through counsel in accordance with the earlier majority

- rule agreement. The order pertained to the distribution and settlement of the estate and was thus within the court’s jurisdiction. The probate court has the power to enforce se ttlement agreements even in independent administrations. See, e.g. , Dodson v. Seymour , 664 S.W.2d 158, 160

– 62 (Tex. App.

— San Antonio 1983, no writ) (affirming order made pursuant to Rule 11 agreement entered in unreported telephone conference with judge). The law

### 21 favors settlement, and that is no less true in the probate context. See Shepherd v. Ledford , 962 S.W.2d 28, 32 (Tex. 1998) (explaining that a settlement agreement in probate administration “is a favorite of the law”); Gregory v. Rice , 678 S.W.2d 603,
60 6–0 7 (Tex. App.

— Houston [14th Dist.] 1984, writ ref’d n.r.e.) (enforcing agreement to disregard testator’s intent). Appellate courts have affirmed court orders to enforce agreements concerning distribution and administration of the estate among contentious independent co

- executors. See, e.g. , Crossley v. Staley , 988 S.W.2d 791, 792 –97 (Tex. App.

— Amarillo 1999, no p et.) (holding court had jurisdiction to enforce such an agreement)

. This Court should not make an exception
here , which would allow Martinez t o back out of the November 2016 agreement and to override the majority

- approved January 2017 Order

. Such a ruling would undermine parties’ ability to settle probate disputes.
T he January 2017 Order complied with Rule 11 and the majority

- rule agreement. Rule 11 provides that agreements between attorneys or parties made in open court and entered of record are enforceable. Tex. R. Civ. P. 11 (App. Tab G). When an agreement is made in open court an d entered of record, it is not necessary that the parties each sign off on a written agreement or agreed order

. See Kanan v. Plantation Homeowner’s Ass’n , 407 S.W.3d 320, 328 (Tex. App.

— Corpus Christi 2013, no pet.)

. Here, the parties agreed in open court through counsel , and a majority approved the January 2017 Order.

### 22 The jurisdictional statutes governing this proceeding provide authority for the January 2017 Order. This administration is subject to the former Probate Code’s jurisdictional statutes (Sections 4, 5, and 5A) as they existed in 2006. 5 

### The Legislature enac ted former Section 5A 6 

### to expand probate jurisdiction

. Estate of
Lee , 981 S.W.2d 288, 291 (Tex. App.

— Amarillo 1998, pet. denied) . While Texas law had long limited judicial interference with independent administration, the Legislature later added former Section 5A in part to grant the courts’ new authority
to take actions even in independent administrations. See id. “By [former Section 5A] , the Legislature intended to expand probate jurisdiction to matters in which the controlling issue was the settlement, partition, or distribution of an estate. ” I d. (citing Seay v. Hall , 677 S.W.2d 19, 22 (Tex. 1984) , superseded by statute on other grounds , Act of May 17, 1985, 69th Leg., R.S., ch. 875, § 1, 1985 Tex. Gen. Laws

5 The session law that repealed the pertinent 2006 statutes stated, “The changes in law made by this section apply only to an action filed or a proceeding com menced on or after the effective date [September 1, 2009] of this Act.” Act of May 31, 2009, 81st Leg., R.S., ch. 1351, §§ 12(i), 15, 2009 Tex. Gen. Laws 4273, 4279, 4282 , available at http://www.lrl.texas.gov/scanned/sessionLaws/81-0/SB_408_CH_1351.pdf ( App. Tab A)

. Th e estate proceeding here was c ommenced in 2006. See M.R. at 26 (Ex. B ). The result here is the same if the current jurisdictional statutes apply, too. See infra n. 9

. 6 Act of May 17, 1979, 66th Leg., R.S., ch. 713, § 3, sec. 5A, 1979 Tex. Gen. Laws 1740, 1741, repealed by Act of May 31, 2009, 81st Leg., R.S., ch. 1351, § 12(h), 2009 Tex. Gen. Laws 4273, 4279 . The original act contained the language discussed in this response and is available at: http://www.lrl.texas.gov/scanned/sessionLaws/66-0/HB_329_CH_713.pdf . Section 5A was also amended several times before 2006, and the full list of amending session laws through 2006 is included with the copy of the 2006 statute in the appendix. App. Tab F.

### 23 2995, 2996 (codified at Tex. Prob. Code § 5A (repealed)), as recognized in In re Graham , 971 S.W.2d 56, 59

– 60 (Tex. 1998) (orig. proceeding) ). 7 

### Specifically, under former Probate Code Section 5(f) , 8 

### the court exercising original probate jurisdiction

— here, the Starr C ounty C ourt at L aw

— has “the power to hear all matters incident to an estate.” App. Tab E

. As applicable to county courts at law, former Section 5A(a) defines “incident to an estate” to cover several items including “generally all matters, relating to the settlement, partition, and distribution of estates of deceased persons.” App. Tab F.
F or example, under former Section 5A , a court of appeals upheld a county court at law’s order determining the dollar amount each beneficiary of an estate was entitled to receive as a distribution

. See Estate of Lee , 981 S.W.2d at 289

– 92

. The independent executor had requested this order after a beneficiary refused to account for estate property. Id. at 290

. The court of appeals affirmed the order. See id. at 289

– 92

. As the court of appeals explained, the order did not interfere with the

7 The session law that superseded Seay in part on other grounds is available at http://www.lrl.texas.gov/scanned/sessionLaws/69-0/HB_479_CH_875.pdf

. 8 Texas Probate Code, 54th Leg., R.S., ch. 55, § 1, sec. 5, 1955 Tex. Gen. Laws 88, 91 , r epealed by Act of May 31, 2009, 81st Leg., R.S., ch. 1351, § 12(h), 2009 Tex. Gen. Laws 4273, 4279. The quoted language was added by later amendments. Section 5 was amended several times before 2006, and the full list of amending session laws through 2006 is included with the copy of the 2006 statute in the appendix. App. Tab E.

### 24 independent administration , and the order pertained to settlement and distribution of the estate, which is expressly permitted by former Section 5A. See id. at 291

– 92

. The present case’ s January 2017 Order also pertains to settlement and distribution of the estate. The order, which re flects a partial settlement among the

co - executors, also does not interfere with the independent administration. As a result, the Court should hold that t he January 2017 Order was authorized by statute. 9


### Martinez’s cited cases do not involve court approval of a settlement. Instead, her cases analyze situations where a single independent executor sought court approval of a contested action. See, e.g. , Marshall v. Hobert Estate , 315 S.W.2d 604, 60 5

– 07 (Tex. Civ. App.

— Eastland 1958, writ ref’d) (per curiam) (involvin g independent executor’s attempt to enter lease over beneficiary ’s objection ). The Marshall opinion cited by Martinez also pre

- dates the enactment of Section 5A, which expanded probate jurisdiction as described above. She does not cite cases involving di sputes among independent co

- executors or, more specifically, cases addressing a majority

- vote agreement like the one in this administration. Her cases are thus distinguishable , and this Court should reject her arguments based on them.

9 The same result would hold under the current jurisdictional statutes, which provide authority for jurisdiction over “any other matter relate d to the settlement, partition, or distribution of the estate

. ” See Tex. Est. Code Ann. §§ 31.001(6), 32.001(a) (LexisNexis, Lexis Advance through 2017 r.s. & 1st c.s.)

.

### 25 Moreover, for the majority

- rule agreement to work, executors must be able to agree and must be able to rely on the court to construe and enforce those agreements.
T his particular administration needs the court to have the ability to enforce agreements. The Estates Code does not directly address what the options are for resolving disagreements among multiple independent executors. Its sole apparent guidance

— Section 307.002’s statement that each executor may generally act on behalf of the estate without joinder of the other executors

— largely does not apply here due to the majority

- rule agreement

. To the extent the parties overrode the Estates Code in this regard, the probate court be able to at least enforce agreements of the executors. Curiously, Martinez (incorrect ly) characterizes this mandamus record as one where a minority of co

- executors convinced the trial court to prevent a majority from managing the estate

. See supra Statement of Facts § 4. But her mandamus petition effectively asks the Court to rule that the trial court has no jurisdiction to sign an order approved by a majority of the co

- executors. If the trial court could not sign the January 2017 Order, the trial court effectively can not enforce the majority

- rule agreement either. Ad ditionally, in Martinez I , Martinez never argued that a unanimous agreement would not be enforceable and never offered a response to Trevino and Pope’s point that a majority approved the January 2017 Order. She only argued that

### 26 her former counsel did not agree to the terms presented in the November 2016 hearing. Trevino and Pope disagree with that reading of the transcript. Parties generally cannot seek appellate review of an agreed trial court order. See, e.g. , In re Brent W. Coon, P.C. , No. 09

- 09

- 00263

- CV, 2009 Tex. App. LEXIS 7434, at *3

– 4, 2009 WL 3030355 (Tex. App.

— Beaumont Sep. 24, 2009, orig. proceeding) (mem. op.); see also In re BP Prods. N. Am. , Inc. , 244 S.W.3d 840,
845

– 46 (Tex. 2008) (orig. proceeding) (emphasizing courts should be particularly reluctant to set aside party agreements). This Court should not make an exception here and should deny mandamus as to the J anuary 2017 Order. C. Martinez has an adequate appellate remedy. Because the January 2017 Order is based on the executors’ agreement, it does not raise the problem of interfering with independent administration. See supra § I .B. As a result, this case does not fall within the Texas Supreme Court’s ruling that unauthorized interference with an independent administration is subject to mandamus. See D’Unger v. De Pena , 931 S.W.2d 533, 535 (Tex. 1996) (orig. proceeding) (per curiam) ; see also Estate of Lee , 981 S.W.2d 288, 291

– 92 (Tex. App.

— Amarillo 1998, pet. denied) (finding order described above not to be interference)

. The January 2017 Order is an incidental pretrial ruling which is not subject to mandamus review. See Walker v. Packer , 827 S.W.2d 833, 842 (Tex. 1992) (orig. proceeding); Brown v. Herman , 852 S.W.2d 91, 93 (Tex. App.

— Austin

### 27 1993, orig. proceeding) (refusing mandamus as to probate court’s determination that it had jurisdiction). This Court should deny mandamus on this prong as well.
D. Laches bars Martinez’s petition as to this order. Additionally, Martinez waited too l ong to complain about the January 2017 Order by mandamus

. Her mandamus petition in Martinez I came about four months after the order and more than six months after the open court agreement. Writs of mandamus are largely controlled by equitable principles. In re Int’l Profit Assocs. , 274 S.W.3d 672, 676 (Tex. 2009) (orig. proceeding) (per curiam)

. As a result, the doctrine of laches can bar mandamus. Callahan v. Giles , 155 S.W.2d 793, 795 (Tex. 1941) (orig. proceeding)

. “[ E ] quity aids the di ligent and not those who slumber on their rights. ” Rivercenter Assocs. v. Rivera , 858 S.W.2d 366, 367 (Tex. 1993) (orig. proceeding)

. The party asserting laches must show (1) an unreasonable delay by the relator and (2) good faith change in position by another to his or her detriment because of the delay. In re Laibe Corp. , 307 S.W.3d 314 , 318 (Tex. 2010 ) (orig. proceeding) (per curiam)

. Both elements are established here.
D elays like Martinez’s are regularly held to be unreasonable. “A delay of only a few months can constitute laches.” In re Jindal Saw Ltd. , 264 S.W.3d 755, 760 (Tex. App.

— Houston [1st Dist.] 2008, orig. proceeding) (citing cases involving four month delays ) , mand. granted on other grounds , 289 S.W.3d 827, 828 (Tex. 2009) (orig. proceeding) (per curiam)

. Examples abound. See, e.g. , Rivercenter

### 28 Assocs. , 858 S.W.2d at 367

– 68 (waiting over four months after jury demand before asserting jury waiver rights in contract). 10 

### Martinez thus unreasonably delayed her mandamus by waiting four months.
A s an excuse, she suggests in a footnote that it was unclear to her what the trial court was doing. See Pet. 1 6 n. 7

. S he does not , however, indicate that the January 2017 Order was somehow ambiguous or opaque. To the contrary, as relator she must show that the January 2017 Order constitutes a clear abuse of discretion. See supra
Ma ndamus Standard. The trial court entered an order based on the agreement
M artinez’s attorney entered on her behalf. This Court should reject her excuse. As to the second element, Trevino and Pope changed their position in good faith to their detriment because of Martinez’s delay. The order required Trevino and Pope to prepare deeds and send them to the other executors’ counsel , which they did.
See M.R. a t 114 ¶ 3 (Ex. H); M.R. at 57 ¶ 1 (Ex. E

- 1)

. Trevino and Pope complied with the order in other ways as well and sought sanctions to enforce the order. See id. at 90

– 93 (Ex. F

- 1) ; A pp. Tab. B ( Pope affid.). 11 

### Trevino and Pope also had

10 See also, e.g. , In re Salinas , No. 13 -09-00599- CV, 2010 Tex. App. LEXIS 395, at *4

– 5, 2010 WL 196887 (Tex. App.

— Corpus Christi Jan. 20, 2010, orig. proceeding) (mem. op.) (per curiam) (between three and four months); Int’l Awards, Inc. v. Medina , 900 S.W.2d 934, 935 –36 (Tex. App.— Amarillo 1995, orig. proceeding) ( just over four months); Furr’s Supermarkets, Inc. v. Mulanax , 897 S.W.2d 442, 443 (Tex. App.

— El Paso 1995, orig. proc eeding) (four months after oral ruling and one month after written order).

11 While th e Pope affidavit was not before the trial court, p arties can submit affidavits to the court of appeals in an original proceeding to establish elements of laches, which is a doctrine necessarily asserted for the first time in an appellate court when challen ging a mandamus petition. See, e.g. , In re Melcher , No. 14

- 16 -00130- CV, 2017 Tex. App. LEXIS 2490, at *7 –8 , 2017 WL 1103549

### 29 agreed to forego their claim for compensation in the administration as part of agreeing to the order. M.R. at 134

– 36 (Ex. I

- 4)

. That claim is more than $2 5 ,000. Id. 12 

### Moreover, the long

- awaited distribution of the estate has now been unnecessarily delayed by Martinez’s late attempt to seek mandamus. Finally, t hi s Court should reject Martinez’s argument that laches does not apply because the order is allegedly void. See Pet. 1 6 n. 7

. T he trial court had the ability to enter the January 2017 Order

. See supra § I.B. Any m andamus complaint involving that enforcement would nonetheless be barred by laches.
Be cause Trevino and Pope have established both elements, laches bars mandamus as to the January 2017 Order.
II. Martinez is not entitl ed to mandamus as to the May 2017 Order . {Response to Martinez ’s § § [B], [ C]} The Court should deny mandamus as to Martinez’s plea to the jurisdiction. There is no longer a n order arguably “converting” the estate administration from independent to dependent. See infra § II.A. Additionally , the trial court had discretion to deny her plea to the jurisdiction because her plea sought broad relief

(Tex . App.

— Houston [14th Dist.] Mar. 23, 2017, orig. proceeding) (mem. op.) (allowing relator to show lack of unreasonable delay through an affidavit attached to a reply brief ).

12 Trevino and Pope have since rescinded their assent to the November 2016 hearing agreement due to lack of compliance with the January 2017 Order. See M.R. at 135–36 ¶ 4 (I- 4).

### 30 unsupported by law. See infra § II.B

. Also, Martinez has an adequate appellate remedy. See infra § II. C. A. T he trial court has fixed the “conversion” issue by signing the January 2018 Order. The “conversion” controversy related to the May 2017 Order’s language is now gone as a result of the January 2018 Order. The trial court explained that it believed the May 2017 Order’s “treated as dependent” language was erroneously included. 1/9/18 R.R. at 5. All that remains at issue is whether the Court should issue mandamus granting Martinez’s plea to the jurisdiction.
B. The trial court had discretion to deny Martinez’s plea to the jurisdiction.
T he Court should deny mandamus as to Martinez’s plea to the jurisdiction

. The trial court had discretion to reject Martinez’s request that it “exercise no further jurisdiction” in this case. See M.R. at 120 (Ex. I -1 ). T his Court should permit the trial court to determine for itself in the first instance w hether it has the authority to grant the relief requested in any pending motions. And when the trial court rules on those motions, the parties can seek appellate or mandamus relief if it is available. This Court should not enter an order preemptively barring the trial court from considering the motions first

. The probate court has the jurisdiction to determine its own authority

. See Brown v. Herman , 852 S.W.2d 91, 93 (Tex. App.

— Austin 1993,

### 31 orig. proceeding) . Until the prob ate court makes those rulings , mandamus in this Court is premature and unripe. See In re Kuster , 363 S.W.3d 287, 290 (Tex. App.

— Amarillo 2012, orig. proceeding [habeas denied]) (“[T]o the extent that her petition seeks mandamus relief based upon events that have not yet occurred and remain merely hypothetical, we conclude that we are without jurisdiction to render advisory opinions on factual situations that may or may not arise in the future.”).
Moreover , Trevino and Pope’s pending motions have cited to valid statutory bases for the trial court’s action in an independent administration. The trial court has author ity to allow less than all of the executors to sign distribution deeds (Estates Code § 307.002(b)) , to remove executors or require them to give bond (Estates Code §§ 404.002, .003, .0035), to issue sanctions, and to force a distribution after an accounting (Estates Code § 405.001)

. See also Suppl. M.R. at 7 –9 (explaining statutory bases for motions); M.R. at 130 ¶¶ 2– 3 (Ex. I

- 3) (incorporating earlier explanation by reference in response to Martinez’s plea to the jurisdiction). C. Mandamus is not the proper remedy for this ruling . This Court should also deny mandamus as to the January 2018 Order because denials of pleas to the jurisdiction are generally not subject to mandamus review.
See supra M andamus Standard. This is true in the probate context a s well. See
Brown , 852 S.W.2d at 93

.

### 32 This is especially true in this case, however, where Martinez seeks to bar the trial court from ruling on the motions before it and future proceedings . The trial court might rule in Martinez’s favor either on the merits or by deciding it lacks authority to rule on the motions at all. Martinez presents no basis for this Court to conclude that the mere hearing of these pending motions will deprive her of rights. This is not a case whe re “the very act of proceeding to trial [(or in th e present case, a hearing)]

— regardless of the outcome

— would defeat the substantive right involved.” In re McAllen Med. Ctr., Inc. , 275 S.W.3d 458, 465 (Tex. 2008) (orig. proceeding)

. E ven if this Court accepts the speculative premise (and it should not) that the trial court is going to issue rulings adverse to Martinez, Mar tinez has not explained why she lacks adequate appellate remedies from these hypothetical rulings or why she could not bring mandamus, if necessary and available , at that time when those issues are ripe

.

### 33 Prayer Trevino and Pope request that this Court deny Martinez’s Petition for Writ of Mandamus. Trevino and Pope request such other and further relief at law and in equity to which they may be entitled. Respectfully submitted,
A TLAS 

### , H ALL 

### & R ODRIGUEZ 

### , LLP 818 Pecan/P.O. Box 3725 McAllen, Texas 78501/78502 (956) 682

- 5501 (phone) (956) 686

- 6109 (facsimile)
By: /s/ J. Joseph Vale J. J oseph V ale State B ar No

. 24084003 jvale@atlashall.com O.C. Hamilton, Jr . State B ar N o. 0884 70 00 o ch @atlashall.com
A ttorneys for Maria Iris G. Trevino and Maria Del Rosario G. Pope

### 34 Certificate of Rule 9.4(i) Compliance In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I certify that
the nu mber of words in this Response to Petition for Writ of Mandamus , excluding those matters listed in Rule 9.4(i)(1), is 6 , 2 1 5 words per the word processing program used for its preparation (Microsoft Word)

.

/ s / J

. J o s e p h V a l e J

. Joseph ValeCertification of Appendix
ST ATE OF TEXAS § § COUNTY OF HIDALGO §
Pur s uant to Texas Civil Practice & Remedies Code § 132.001 , on this da y personally appeared J. Jo se ph Vale and declares under penalty of perjury that the following is true and correct: 1. My name is J. Jo sep h Vale. I am one of the attorneys for Maria Iris Trevino and Maria Del Rosario G. Pope, real parties in interest the above-referenced cause . I am above the age of eighteen, ha ve never be e n convicted of a felony or a crime of moral turpitude, and am competent to make thi s declaration. The facts stated herein are within my per sona l knowledge and are true and correct.
2. The order contained in Tab H of the Appendices to the Response to Petition for Writ of Mandamus is a true and correct copy of the original appearing in the trial court ' s record.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on: January 22, 2018.

Ju rat My name is J. Joseph Vale, my date of birth is December 19, 1986 , and my address i s 818 W. Pecan Blvd ., McAllen, Texas 78501, Un i ted States of America

. I declare under penalty of perjury that the foregoing is true and correct. Executed in Hidalgo County, State of Texas, on the 22nd day of Janua 18.

35

### 36 Certificat e of Rule 52.3(j) Compliance This certifies that the undersigned has reviewed this Response and concluded that every factual statement in it is supported by competent evidence included in the appendix or record, as required by Appellate Rule 52.3(j). This certificate is signed subject to Trevino and Pope ’s objection to the missing transcript noted above. See
supra Argument § I.A.

/ s / J

. J o s e p h V a l e J. Joseph Vale

### 37 Certificate of Service I certify that the foregoing document was electronically filed with the Clerk of the Court using the electronic case filing system of the Court. I also certify that a true and correct copy of the foregoing was served on the following counsel of record

on January 22 , 201 8 as follows : Recipient: Attorney for: Served by: Keith C. Livesay ( rgvappellatelaw@yandex.com ) L IVESAY 

### L AW 

### O FFICE 

### 517 West Nolana McAllen, Texas 78504 Executrix/relator Maria Cecilia G. Martinez Electronically if available, or by email
Marcel C. Notzon, III ( mcn@notzonlawfirm.com ) T HE 

### N OTZON 

### L AW 

### F IRM 

### Northtown Professional Plaza 6999 McPherson, Suite 325 Laredo, Texas 78041 Executors/real parties in interest Maria Celeste G. Narro, Ignacio Gutierrez, and Maria Minerva G. Guerra Electronically if available, or by email

Hon. Romero Molina Starr County Courthouse 401 N. Britton Avenue Rio Grande City, Texas 78582 Respondent Certified mail, return receipt requested

/ s / J

. J o s e p h V a l e J

. Joseph Vale

### 38 Appendices
Tab Document

A Act of May 31 , 2009 session law that repealed former Probate Code’s jurisdictional statutes B Affidavit of Maria del Rosario G. Pope C Tex. Est. Code Ann. § 307.002 D Tex. Prob. Code Ann. § 240 (2006 version) (repealed 2009) E Tex. Prob. Code Ann. § 5 (2006 version) (repealed 2009) F Tex. Prob. Code Ann. § 5A (2006 version) (repealed 2009) G Tex. R. Civ. P. 11 H Amended Order Denying Plea to the Jurisdiction (the January 2018 Order)

### TAB A
OF THE APPENDIX

### TAB B OF THE APPENDIX

### STATE OF 

### TEXAS No. 04-17-00333-CV
Court of Appeals, Fourth District San Antonio, Texas

In re Maria Cecilia Martinez

Relating to Cause No. PR-06-004 in the County Court Starr County, Texas

COUNTY OF HIDALGO 

### § § § AFFIDAVIT OF 

### MARIA DEL 

### ROSARIO G. POPE
Before me, the undersigned authority, on this day personally appeared MARIA DEL ROSARIO G. POPE, who after being duly sworn by me, deposed and stated as follows:
1. I am over the age of 18. I am competent to make this affidavit. I have never been convicted of a crime involving moral turpitude. I have personal knowledge of all facts stated herein, and they are true and correct.
2. I am one of the independent co-executors in the above-styled cause. I am also a daughter of Ignacia Gutierrez who is the decedent in that cause. This affidavit is submitted in support of my Response to First Amended Petition for Writ of Mandamus, which is joined by my sister Maria Iris Trevino. Iris is also one of the independent co-executors in this cause. 3. On January 26, 2017, Hon. Romero Molina signed an order (the January Order) based on an agreement that the attorneys had entered in November 2016 on behalf of the six co-executors in this case. My and Iris's attorney, O.C. Hamilton Jr., had attended that hearing and

Affidavit of Maria Del Rosario G. Pope Page 1 of2entered the agreement on our behalf. He also approved the January Order as to form and substance on our behalf.
4. Iris and I took several actions to comply with the terms of the November agreement and the January Order. These actions required substantial investment of time and money. We understood that the other executors had agreed to the terms of the agreement and that they were working to comply as well, and we acted in good faith. In May 

### 2017, our sister Maria Cecilia Martinez (who is also an independent co-executor) filed her petition for writ of mandamus challenging the January Order. By that time, we had already completed the actions described below in this affidavit.
5

. Paragraph I of the January Order requires the estate to reimburse me $3,000.00 for the survey that I paid for to survey property I am to receive from the estate. It requires me to pay for anything above that amount. Before November, I paid about $6 , 000.00 for the survey in question, but as a compromise, I agreed to waive part of that amount as a term of the November agreement.
6

. Paragraph 3 of the January Order requires each attorney to prepare correction distribution deeds on behalf of his clients. To comply with this order, Iris and I authorized 0.C. Hamilton Jr

. to prepare these deeds, and the deeds were prepared. We incurred substantial legal fees and expenses to compensate Mr. Hamilton's firm for these services.
7

. Paragraph 4 of the January Order requires the executors to inventory cattle on ranches owned by the estate. Iris and I inventoried the cattle according to the order , and this required a substantial investment of time and expense.

# ~,4~.-,,**.& ~**  Maria Del Rosario G. Pope
SUBSCRIBED AND SWORN T

## day of



### _**_....,~ ~-** **~,2017. ~"'""** **"'**

### {(**~~~~\** NotarY Public .:**:.~** STAT C O F TEXAS**;:;;_~} Not~** **:-;** ID# 12 4 25472-4 My Camm. Exp. 06-24-2018 Affidavit of Maria Del Rosario G. Pope Public, State My commission expires:
Page 2 of2

### TAB C
OF THE APPENDIX

### Tex. Estates Code § 307.002 This document is current through the 2017 Regular Session and 1st C.S., 85th Legislature Texas Statutes & Codes Annotated by LexisNexis® > Estates Code > Title 2 Estate of Decedents; Durable Powers of Attorney > Subtitle G Initial Appointment of Personal Representative and Opening of Administration > Chapter 307 Validity of Certain Acts of Executors and Administrators



### Sec. 307.002. Joint Executors or Administrators.
(a) Except as provided by Subsection (b), if there is more than one executor or administrator of an estate at the same time, the acts of one of the executors or administrators in that capacity are valid as if all the executors or administrators had acted jointly. If one of the executors or administrators dies, resigns, or is removed, a co-executor or co-administrator of the estate shall proceed with the administration as if the death, resignation, or removal had not occurred. (b) If there is more than one executor or administrator of an estate at the same time, all of the qualified executors or administrators who are acting in that capacity must join in the conveyance of real estate unless the court, after due hearing, authorizes fewer than all to act. History Enacted by Acts 2009, 81st Leg., ch. 680 (H.B. 2502), § 1, effective January 1, 2014.

Texas Statutes & Codes Annotated by LexisNexis® Copyright © 2018 Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.

End of Document

### TAB D OF THE APPENDIX

### § 

### 240:' 

## 'Jomt 

## Execut6is 

# or'4aministrators J''.,, .,, ·,;·· q.,.**J;£~** .'.• ' {, : ''') .' tJ •• J' ·**~!** ·**.dv~~--·r ~,** **~** ··**~-****("*'·~,~** 1·**~.'"** ·t {**,~./?(?** -.,,. Yf'.' .;· ,i,**~;** 1'f-z. 1 :;..**.....~t** .. -a!**i~'~,; -~**  f' _,J**~;'•tJ~_gtil** i'; ¥ Should there be more than one executor or**admini~trator** of. the same estate**:at!.t~e i;;ame·tim~,**  

### .. the,**~ct!)** 

### of**on~ of** **the~.** as 'IDl<!h- 

### exec\lit9il". o:r,**~OJninistratqr** 

## ,,J:iatl**}:>~p.N,!)lli,g** ,as if all had acted jointly; and, in case of the death,.**J"esign~tio~** or**r.~,mgvpl** 

### qf 

### .a.n.**~~fJ®tJ2P** Qr**11uim~~tt,'l1-t~r** '· if:**tlte~e** he ,,**c:o ~xe'N~9F,** **~f: co-.~~s~atps,** **·qi~ sue:.~.~~~'-~~~'** **~ll~** shall proceed with**~e** administration

. as. if nq. such death, resignation or remov:ai.**)i~g** QCCUrred._**.Pr~Vlde~,** qil!.ever,**t~~~,this Se~on** **shall, ~?}**  be**~9~ed}o, ~**  _pp.e Of St?\l'.erlμ**exe~t<)~** 

### .or**'i{~sttatPrs ~·** **cdnv~y** rea.J,.**esta~·, ·~ut**  .in 

### sucq . l'the

### ~tOi;fo.o~**a9~fnj~trator$.'Whp ha~e'quaμfied** **as,~cli an4ja\:~** **actliig.~)il~"~** I

### ·j,8~ in tne. 

### CollVe 

## ance "ullJ.ess the 'courl; after 

### due hearin 

### au'ihotGes' }eSs 'tli

... ' · 

### {&U ai!t: Y ' · ·'·'' ''',. ·" ·····**,,...,,J~1** , ..t>·•.' ·'· 1··**"·1~·'** ;·nr• ·.-'**.~** : , '**~).** , ,! "·' }**~-** .... \,,,..,. ' • "' ,;,.
.. «
.. j

.. .t**~** t**'~** (, "**,~('J."' ~$'**  .•**~cts** 1955,

..**~tP ~eg.,**  p. 88,**.~,'._55, eft.~ar~**  .. 1,**1~5~,** . ! ,,. ·r'"i ,.,. ·' \ i' i**,.;;·;r~**
• [**.•~~** , J**~c~~. ~**  _t

__**~** __**~...** -· r{ .I .: ! ,:**~,~J;~** .. ""'" , ',..**-~j** t'\**~ ~~,** **~~p**

### TAB E OF THE APPENDIX§ 

### 5. Juiisdiction 

### With**Re§p~ct'to** Probate Proceedings , ' 1 ·, • 1 '

### (~)_**R~pe~ed** hy,Acts

### 200~, 7Bth

### ~~g::. i;:h. 1060, §. 

## 1s. , 1 1 · · · • (b) In those counties in which there is no statutory: proba,te**~ourt,** county court at·law,**~r** other statutqry. cgurt**~exercising** t.h&.**juri~~ctio;n** of**.~ 'Pn~b~te1**  .court, 

### a1J**aP,pll~tioi:is,, p~titions** **1** and**motion~ ,:re~cijng**  probate**an~** administrationfl**sh~J~e** filed and**he~9-Jn,** the 1 county.**c~urt.** . In**cpntest~d** prpoate matters, the judge of**tI:t~** county court**iy~y.** on thejudge'sc?wn motion 

## o.r shall.on the:,niotion of.any party

..**~'the,prq~eeding, E,LCCO~ding,**  to the motion: ;; · , - , , ' , · '. , . r ., 1 ,.,**~** • · , . , (1) request the assignment 0£ a statutory probate**court,iju.~ge** to hear the contested portion of the**proc~edit1g,,** as. provided by Section**25.002~, Governm~nt**  Code; or

,**~-;** , - --. i**~** 4..)**~'·** , • ··:.,:.r .;.. . ..,. ·" , t**1"''~ ~.'** **-~),,** .• · .!.i

..... ·

. (2)

..**~r~s~~r** the**cont~sted** portion,· 9( 

### tb.e pro.ceeding**~o th~** **dis~rict** coUI1? which·**~~Y:** then hear the contested matter as if originally filed in district**~outj;.** , , ,· . . , 1

. (q--1) If the judge of the coμnty**~ourt** has. not**.tr~sferr~d. ~**  contested probate matter to' the district court under this 1 i;ection**~y** the time 'a 

## pSrtY''**fil~s** a motion 

### f 

## o;**~~igiμD,~nt of~a**  .stEltUtocy**probat~ co~tjudge,**  the' ,Counfy judge shallgr:?Ut**~h~** motion!ill,d**~f'qot tran~er** **~h~ :m~tter**  .to**di~fi{~f ~qun**  rinJess· the party**witlidra":~. ~~.e** **motio~-.** . A 

## parcy to a proceeding may file a motiqn for assignment of a statutory probate' court judge. under this' seCtion 

## "6-eforJ tiie niatter 'becomes 

## a c6ntested 'probate**niatt~r,** 

### aiid the ID:otion is 

### given ''"effe&**~ ~**  

### iD:otion' for; aasigtlment c of ' 

## a stafutory 

## proliate**~ourt** jttdge ! lfuder Subsection (b) 'Of this :section ·if the matter later becemea;contested';! -Artransfer of a contested probate matter to' district court under anycauthority other. than the authority provi9ed

.. bythissection:•·. ·,.:,, · .H· • • ;· ,,,r. ,,:J' :, :i (1) is**disregard~d** for purJ)oses oftliis section; fuid ' ', c " ' ' 'q**~'** ,·**/~, ·~2)•dbes**  not' defeat the;fight of a party to.the matter to have·the matter assigned to a statutory. probate court judge in accordance with this section.· 11:**~,~** •**'~** ". • • >·(b:;..2)/,A statutory probate/·Court Judge assigned to a cQntested·.probate· matte:r .as provided by Subsection. (b). of this section 

### .lias.**~he** jurisdiction 'and1authority· granted to a

·**statutory~ prob~te**  · 

### .coun by. 1this section and·· Sectfoms 5.A, 

### .and .5B · of '1thil:ll**~code.:** 0I}**~** . 

# .

. ,..... ,. '. ·9§5 Johanson's. Texruf Probate' Code ·Annotated resolution of a contested matter, incl'\iding 

## an appeal of a matter, to which a statutory probate court judge, has been assigned, the statutory prob1:1te court judge shall transfer the resolved portion .of the· caae to the county court for·"further proceedings; not inconsistent with the orders of the statutory probate court judge. (b-3) In contested matters transferred to the district: coUrt, 

### the district 'court has the general jurisdiction ofa probate.court. On resolution of a**~ontested** matter, including 0(

c l. '.**~** ' ·. . ,<
. " an appeal of a matter, the district court shall transfer**~the** re.solved portion of the case to the county court for furlher'pJ ro'heedings not iriconsistent'W:ith the orders of the district "' court.

<**~** <**~** q 1 °;·**~** v

{b-4) The county court shall continue to exercise jurisdiction.over the management of the estate with the exception of, the contested matter until final disposition of the contested matter is ,made; by**th~** assigned statutory probate court judge or the district court. ' f., l ' (b-5) If a contested portion of the proceeding is transferred to a district court undef Subsection (b-3) of this section, the clerk of the district court may perform in relation to the transferred portion of the proceeding any function a county clerk may perform in that type of contested proceeding, n (c) In those counties in which there is no statutory probate court, but in which there is a county court at law 

## or other**s~atutory** court**e~ercising** the jurisdiction. of a probate court, all applications, petitions, 

## and motions regarding probate and administrations shall be filed and heard in those courts and the constitutional county court, unless otherwise provided by law. J The judge of a county court may hear any of those matters regarding 1 probate ot administrations sitting for the judge of any other county court. In contested probate matters; th'e judge of the constitutional county court may on the judge's own motion, and shall on the'.motion of a'party to the proceeding, transfer the proceeding to the county co:urt at law 

### or a statutory' cotirt exercising the jurisdiction of 

### a; probate court other than a statutory probate court. The court to which the proceeding is transferred may hear the proceeding as if originally filed in the court.

< .: •• •**-·~** (>**,'~t** .., h • : I (d) In those counties ih which there is a statutory probate court, all applications, petitions, and motibns regarding probate or administrations shall be filed and heard in the statutory probate court. · l· ·**~** (e) 'A statutory probate c9urt has concurrent jurisdiction With the district court in all persona} injury, survivitl, 

### br \vrongful death actions by or against a person,, in the person's capacity' as a personal representative, in all actions by or against a trustee, in all actions**invol~g** an inter vivos trust, testamentary trust, or charitable trust, arid ih all '{1cti01;1s involvμig a personal representative of an estate in which each other party**aligh~d '~th**  the ''persona], ,representative is, not an interested person iri that estate. '

. ;,,.

. ' '**~,·** 

### . "- : '

. . .**~.,** (f) All courts exercising original probate jurisdiction shall have the power to hear all matters incident to an estate. When a surety is called on to perform in place of an administrator, all courts exercising original probate jurisdiction may award judgment against the personal representative in favor of his**~urety** in the same suit. {g) All final orders ··of any court exercising original probate jurisdiction shall be appealable to the courts of appeals. (h) A statutory probate ·court has jurisdiction· over any matter appertaining to an estate or incident to an: estate and has jurisdiction over any cause of action in which a personal representative of an estate pending in the statutory probate court is a party. 10r • ) t
f

.... Probate Code-General Provisions §;5
(i) A statutory probate court may exercise the pendent· tl!ld ancillary·· jurisdictibn necessary to promote judicial effiCiency and econo:nly. '' .'.; 

### '>.

. '"' • ' V ,, fC ' '· · ·, •
..**~** '· 1 ' '· " ':**~** ·'**;~_," ~**  "·**r~** ik ';, · · Acts 1955,**54th~J:.eg.,** p. 88, ch.' 55, eff.<Jan. 1, 195i;i. «Am.ended by Acts:l973,'63rd Leg,fp. ·1684; ch: 610, § 1;**~cts** 1975, 64th<Lleg.,'p. 2195,,.ch. 701, § 2, eff. Jtine 21;•1975; Aets11977·,**65tlH,~g:,** p. 1170, ·ch. 448i § 1, eff. Aug. 29,i 1977; Acts 1979, 66th Leg;, p" 1740; ch.' 713, § 2;•effl'Aug.'•27, 1979;**A~s** 1983, 68th Leg., p.**4~22,** ch. 647, § 2, eff

..**~e~t. 1,**  1983;**.Act~ 198~;** **68th:L~gr;'p. 543~:**  ·ch. 1015, § 1, eff. Aug. 29, 1983, Acts 1985, 69th Leg.,· 

### cp. 159, § 3i**effA3ept~** 1, 1985,··Acts**~98'1,** 70th**Leg~.** ch. 459; § 4, eff. Sept. l,' 1987; Acts 1989, 7lst·Leg./ch:. 1 1oa5, § 2,-eff. Sept::1,tl989; Acts 1993, 73rd**Leg~,** ch. 957, § 5; eff. Sept. l, 1993; Acts' l997p75th 

### ·Leg;, ch. 1435;-§ fl.,reff.,Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1389, § 1, eff. Aug. 30, 1999; Acts 2001:/ 77th Leg,, clt.' 63, §, li eff. Sept. , 1, 2001; Acts 2003, 78th Leg., ch. 1060, §· '1, eff. Sept. 1, 2003; Acts 2003, .78tb; Leg.; ch. 1060, §, 16, eff. Sept. 1, 2003; Acts 2003,•78th Leg., ch,,1060,,,§ 2, eff. Sept. l,.,2003;;4cts 2003, 78th Leg., ch

.. ;1060, § 2, eff. Sept;·l, 2003; Acts,2005,,79th,·Leg.,,ch.-•551, §.;:Ji'"eff. Sept.:;1, 2005

.

### TAB F OF THE APPENDIX

### § 

### 5A. Matters**Apperta~pin, _** **an~ W.~ident**  to an Estat! (a) In**proce~clings** in the**constitutio~** county**c~mrt s**  and statutory**c~unty** courts at law, the phrases "appertaining to estates" and "incident to an . estate" in this Code include the probate of wills, the issuance of letters testamentary and of administration, the determination of heirship, and also include, but are not limited to, all claims by or against an estate, all actions for trial of title to land incident to 

# an estate and for the enf orcemeht of liens thereo
· n incident to an estate, all actions for trial**~f** the right of property incident to an estate; and · actions to co'iistnii! wills, and gerierally all matters relating to the settlement, p . artition, and diatribtition of estates

. of deceB;Sed persons.

. (b) In proceedings in the statutory probate courts, the phrases "appertaining to ·**estat~s"** and ' · 'incident tQ an estate" in this Code include the probate of wills, the issuance of letters testamentary and of administration, and the · determination of heirshlp, and also include, but are not limited to, all claiins liy or amllilst an estate, ' all actions for trial of title to land 

# and for the enforcement 

# of**li~ns** thereon, all actions for trial of tlie right of property, all actions td construe wiUs, the interpretation and administration of testamentary trμsts and the applY\ng of constructive mists, and generally aii matters relating to

. the coUectfon, settlement, partiiion, and distril>ution of estates of deceased persons. All statutory probate cow-ts · may, in the exertjse of their jurisdiction, notwithstanding any other provisions of this Code, hear all suits, actions, and applications filed against or on behalf of any beirship proceeding ' or decedent's estate, including estates administered by an independent executor;
. all such suits, actions, and applications are appertaining to and

. incident to an estate. This subsection shall be constnied in conjunction with 

### and in 

### 'harrrio.tiy With Section , 145 ajld all other**~ctions** of**~his C~e**  dealing with independent executors,**b~t** shall not be construed so as to**incre~e** permissible judicial control over indepe)lde'nt executors.**E~cept** for situations 

## m which the jurisdiction of a statutory prob1;1te 

## court is concurrent with tliat of a district court as provided by Section 5(e) of this Code or any other co\lrl, any cause of action appertaining to estates or incident to an estate shall be brought in a statutory probate court. , , (c) to (e) Repealed by Acts 2003, 78th Leg., ch. 1060, § 16. (0 Notwithstanding any other ,P!Qyision of this**ch~pter,** the proper venue for an action by qr**a~st** a**person~ repi;esentat~~e**  fo}" personal injury, d

_ e.ath, or property deiQages is**de.t~imin.ed** under Section 15.007, Civil Practice and Remedies Code. , Aiided by Acts 1979, 66th Leg., p. 1741, ch. 713, § 3, eff. 1 Aug. ' 27, 1979. Ameoded by Acts 1985, 69th Leg., ch. 876, § 1, eff. Aug. 26, 1985; Acts 1987, 70th Leg., ch. 459, § 1, eff. Sept 1, 1987; Acts 1989, 7lst Leg., ch. 1035, § 3, eff. Sept. 1, 1989; Acts 1993, 73rd Leg., ch. 957, § 6, eff. Sept. 1, 1993; Acts 1997, 75th Leg., ch. 1302,**~** 1, eff. Sept. l, 1997;

. Act's :t999, 76th Leg., ch. 64, § 1, etr. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 204, § 3.05, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1060, §§ 3, 4, 16 1 eff. Sept. l, 2003.

### TAB G
OF THE APPENDIX

### Tex. R. Civ. P. 11 This document is current through October 1, 2017.
Texas Court Rules > STATE RULES > TEXAS RULES OF CIVIL PROCEDURE > PART I. GENERAL RULES


### Rule 11 Agreements to Be in Writing Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.

Texas Rules Copyright © 2018 by Matthew Bender & Company, Inc. a member of the LexisNexis Group. All rights reserved.

End of Document

### TAB H OF THE APPENDIXIN THE ESTATE OF IGNACIA G. GUTIERREZ, DECEASED CAUSE NO. PR-06-004 § § § § § IN THE COUNTY COURT OF STARR COUNTY, TEXAS
AMENDED ORDER DENYING PLEA TO THE JURISDICTION Came on to be heard Cecilia Martinez's Plea to the Jurisdiction, and the Court, having considered the motion, any response thereto, along with the arguments and authorities of counsel, finds that such plea is not well taken; and accordingly, it is hereby
DENIED. This Order amends and replaces the Court's Order Denying Plea to Jurisdiction signed on or about May 22, 2017. SIGNED this

__ day of

_________ , 2018.

JUDGE PRESIDING

cc: O.C. Hamilton Jr., Atlas, Hall & Rodriguez, LLP, 818 W. Pecan Blvd, P.O. Box 3725 (78502-3725), McAllen, Texas 78501

- Email: och@atlashall.com Marcel C. Notzon, Ill, The Notzon Law Firm, Northtown Professional Plaza, 6999 McPherson, Suite 325, Laredo, Texas 78041

- Email: mcn@notzonlawfirm.com Keith C. Livesay, Livesay Law Office, Brazos Suites No. 9,517 West Nolana, McAllen, Texas 78504

- Email: RGVAppellateLaw@yandex.com Dalinda B. Garcia, Law Office of Dalinda B. Garcia, P.C., 4847 S. Jackson Rd., Suite E, Edinburg, Texas 78539

- Email: dalindabgarcialawoffice@yahoo.com Filed: 1/9/2018 4:10 PM Dennis D. Gonzalez County Clerk Starr County, Texas Jose Beliz

9 January