No. 04-18-00008-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

ATLAS, HALL & RODRIGUEZ, 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, 2018 

ACCEPTED

04-18-00008-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

1/22/2018 10:29 AM

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 1/22/2018 10:29:59 AM KEITH E. HOTTLE CLERK
2

Table of Contents

Index of Authorities...................................................................................................4

Statement of the Case.................................................................................................7

Issues Presented .........................................................................................................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

Mandamus 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 coexecutors’ 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

Certificate 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 Area 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. proceeding) (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.—Amarillo 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. 2010) (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 1995, 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, 23

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 

Issues Presented

1. The independent co-executors of an estate 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. 

This Court should reject an executor’s mandamus challenge that fails 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. Mandamus should be denied concerning this order. See 

Argument § 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. Her mandamus petition is barred by laches. See Argument § 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 be 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 “Suppl. 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 language 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 in 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 deleting 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 18 § II

(Ex. A – 1st Codicil). Her children decided otherwise and agreed that all six children 
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 

$1,000.00 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, § 10(a), 2009 Tex. Gen. Laws 1512, 1731; App. 

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, all executors (including 

Martinez) sought the court’s guidance in the passing decade. See id. at 130–31 ¶ 3 

(Ex. I-3) (listing Martinez’s numerous motions). Co-Executors Maria Iris Trevino 

and Maria Del Rosario G. Pope have recently asked the trial court to exercise its 

statutory authority to permit the two of them to sign deeds distributing the portions

of the estate left 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. The 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 amid disputes concerning the final distribution of the 

estate2 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 113–16 (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 proposed 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 be 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 has 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 

that 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, Rigney 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 trial court thanked the 

parties for their settlement efforts and asked, without objection, that an order be 

prepared concerning the agreement. See id. at 31–32.

4. The trial court entered an order in January 2017 expressly based on that

agreement, and a majority of the executors approved the order.

The trial court entered the January 2017 Order expressly according to the 

agreement announced at the November 2016 hearing. M.R. at 113 (Ex. H).

3

 In 

accordance with the co-executors’ majority-rule agreement described 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 some 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 motion, 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 order . . . .

M.R. at 113 (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 plea to the 

jurisdiction in May 2017 and planned to hear other motions.

Two months after the January 2017 Order 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 120 (Ex. I-1).

4

 The trial court then signed the May 2017 Order 

denying Martinez’s plea to the jurisdiction but has not yet ruled on several other 

motions before it. M.R. at 138 (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 123 (Ex. I-2). Unlike Martinez’s plea, that 

plea attacked specific motions filed by Trevino and Pope. See id. at 123. 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. Suppl. 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 property 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 

clear 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 Argument § 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 Argument § 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 remedy 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 533, 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. Increased cost or delay involved in a trial and appeal generally does 

not render an appeal an inadequate remedy justifying mandamus review. See id. at 

840–42. Denials of pleas to the jurisdiction are generally not subject to mandamus 

review because they have an adequate appellate remedy. See 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 infra §§ I.A., D.

A. Martinez failed to 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 Order is expressly 

based on a settlement agreement announced and presented at that hearing. M.R. at 

113 (Ex. H). Martinez’s only statement concerning a hearing pertains to a later 

hearing that resulted in the May 2017 Order. Pet. 8 n.4.

A relator must strictly comply with Rule 52’s provisions concerning the 

appendix and record. In re Hunting, No. 05-15-00200-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 deny 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, the 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 coexecutors 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 settlement 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, 

606–07 (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 pet.) (holding court had 

jurisdiction to enforce such an agreement). This Court should not make an exception 

here, which would allow Martinez to 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.

The 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 and 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 enacted former Section 5A6 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.” Id.

(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 commenced 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). The 

estate proceeding here was commenced 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 County Court at Law—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. 

For 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, repealed 

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 reflects a partial settlement among the 

co-executors, also does not interfere with the independent administration. As a 

result, the Court should hold that the 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, 605–07 (Tex. Civ. App.—Eastland 1958, writ ref’d) (per curiam) (involving 

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 disputes 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 related 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. 

This 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 (incorrectly) 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 cannot enforce the majority-rule 

agreement either.

Additionally, 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 January 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 long 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 diligent 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.

Delays 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. 

As an excuse, she suggests in a footnote that it was unclear to her what the trial court 

was doing. See Pet. 16 n.7. She 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 

Mandamus Standard. The trial court entered an order based on the agreement 

Martinez’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. at 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); App. 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. proceeding) (four months after 

oral ruling and one month after written order). 

11 While the Pope affidavit was not before the trial court, parties 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 challenging 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 $25,000. 

Id.12 Moreover, the long-awaited distribution of the estate has now been 

unnecessarily delayed by Martinez’s late attempt to seek mandamus.

Finally, this Court should reject Martinez’s argument that laches does not 

apply because the order is allegedly void. See Pet. 16 n.7. The trial court had the 

ability to enter the January 2017 Order. See supra § I.B. Any mandamus complaint 

involving that enforcement would nonetheless be barred by laches. 

Because Trevino and Pope have established both elements, laches bars 

mandamus as to the January 2017 Order.

II. Martinez is not entitled 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 an 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. The 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.

The 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). This Court should permit the 

trial court to determine for itself in the first instance whether 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 probate 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 authority 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 Mandamus Standard. This is true in the probate context as 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 where “the very act of proceeding to trial [(or in the 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). Even if this Court accepts the speculative premise (and it should not) 

that the trial court is going to issue rulings adverse to Martinez, Martinez 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,

ATLAS, HALL & RODRIGUEZ, 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. Joseph Vale

State Bar No. 24084003

jvale@atlashall.com

O.C. Hamilton, Jr.

State Bar No. 08847000

och@atlashall.com

Attorneys 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 number of words in this Response to Petition for Writ of Mandamus, excluding 

those matters listed in Rule 9.4(i)(1), is 6,215 words per the word processing 

program used for its preparation (Microsoft Word).

/s/ J. Joseph Vale

J. Joseph Vale
Certification of Appendix 

ST ATE OF TEXAS § 

§ 

COUNTY OF HIDALGO § 

Pursuant to Texas Civil Practice & Remedies Code § 132.001 , on this day 

personally appeared J. Joseph Vale and declares under penalty of perjury that the 

following is true and correct: 

1. My name is J. Joseph 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, have never 

been convicted of a felony or a crime of moral turpitude, and am 

competent to make this declaration. The facts stated herein are within 

my personal 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 is 818 W. Pecan Blvd., McAllen, Texas 78501, United 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

Certificate 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. Joseph Vale

 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, 2018 as follows:

Recipient: Attorney for: Served by:

Keith C. Livesay

(rgvappellatelaw@yandex.com)

LIVESAY LAW OFFICE

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)

THE NOTZON LAW FIRM

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. Joseph Vale

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
81st LEGISLATURE-REGULAR SESSION Ch. 1351, § 5

CHAPTER 1351

S.B. No. 408

AN ACT

relating to jurisdiction, venue, and appeals in certain matters, including the jurisdiction of and appeals

from certain courts and administrative decisions and the appointment of counsel in certain appeals.

Be it enacted by the Legislature of the State of Texas:

SECTION 1. Section 51.012, Civil Practice and Remedies Code, is amended to read as

follows:

Sec. 51.012. APPEAL OR WRIT OF ERROR TO COURT OF APPEALS. In a civil case

in which the judgment or amount in controversy exceeds $250 [$"0], exclusive of interest and

costs, a person may take an appeal or writ of error to the court of appeals from a final

judgment of the district or county court.

SECTION 2. (a) Section 82.003, Civil Practice and Remedies Code, is amended by adding

Subsection (c) to read as follows:

(c) If after service on a nonresident manufacturer through the secretary of state in the

manner prescribed by Subchapter C, Chapter 17, the manufacturer fails to answer or

otherwise make an appearance in the time required by law, it is conclusively presumed for

the purposes of Subsection (a) (7) (B) that the manufacturer is not subject to the jurisdiction

of the court unless the seller is able to secure personal jurisdiction over the manufacturer in

the action.

(b) The change in law made by this section applies to an action filed on or after the

effective date of this Act or pending on the effective date of this Act.

SECTION 3. Subsection (a), Section 22.220, Government Code, is amended to read as

follows:

(a) Each court of appeals has appellate jurisdiction of all civil cases within its district of

which the district courts or county courts have jurisdiction when the amount in controversy or

the judgment rendered exceeds $250 [$10], exclusive of interest and costs.

SECTION 4. Subchapter A, Chapter 25, Government Code, is amended by adding Section

25.0020 to read as follows:

Sec. 25.0020. APPOINTMENT OF COUNSEL IN CERTAIN APPEALS. (a) On a

written application of any party to an eviction suit, the county court or county court at law

in which an appeal of the suit is filed may appoint any qualified attorney who is willing to

provide pro bono services in the matter or counsel from a list provided by a pro bono legal

services program of counsel willing to be appointed to handle appeals under this section to

attend to the cause of a party who:

(1) was in possession of the residence at the time the eviction suit was filed in the

justice court; and

(2) has perfected the appeal on a pauper's affidavit approved in accordance with Rule

749a, Texas Rules of Civil Procedure.

(b) The appointed counsel shall represent the individual in the proceedings of the suit in

the county court or county court at law. At the conclusion of those proceedings, the

appointment terminates.

(c) The court may terminate representation appointed under this section for cause.

(d) Appointed counsel may not receive attorney's fees unless the recovery of attorney's fees

is provided for by contract, statute, common law, court rules, or other regulations. The

county is not responsible for payment of attorney's fees to appointed counsel.

(e) The court shall provide for a method of service of written notice on the parties to an

eviction suit of the right to request an appointment of counsel on perfection of appeal on

approval of a pauper's affidavit.

SECTION 5. Subchapter A, Chapter 26, Government Code, is amended by adding Section

26.010 to read as follows:

4273
Ch. 1351, § 5 81st LEGISLATURE-REGULAR SESSION

Sec. 26.010. APPOINTMENT OF COUNSEL IN CERTAIN APPEALS. (a) On a

written application of any party to an eviction suit, the county court or county court at law

in which an appeal of the suit is filed may appoint any qualified attorney who is willing to

provide pro bono services in the matter or counsel from a list provided by a pro bono legal

services program of counsel willing to be appointed to handle appeals under this section to

attend to the cause of a party who:

(1) was in possession of the residence at the time the eviction suit was filed in the

justice court; and

(2) has perfected the appeal on a pauper's affidavit approved in accordance with Rule

749a, Texas Rules of Civil Procedure.

(b) The appointed counsel shall represent the individual in the proceedings of the suit in

the county court or county court at law. At the conclusion of those proceedings, the

appointment terminates.

(c) The court may terminate representation appointed under this section for cause.

(d) Appointed counsel may not receive attorney's fees unless the recovery of attorney's fees

is provided for by contract, statute, common law, court rules, or other regulations. The

county is not responsible for payment of attorney's fees to appointed counsel.

(e) The court shall provide for a method of service of written notice on the parties to an

eviction suit of the right to request an appointment of counsel on perfection of appeal on

approval of a pauper's affidavit.

SECTION 6. Subsection (c), Section 26.042, Government Code, is amended to read as

follows:

(c) If under Subchapter E a county court has original concurrent jurisdiction with the

justice courts in all civil matters in which the justice courts have jurisdiction, an appeal or

writ of error may not be taken to the court of appeals from a final judgment of the county

court in a civil case in which:

(1) the county court has appellate or original concurrent jurisdiction with the justice

courts; and

(2) the judgment or amount in controversy does not exceed $250 [$-10], exclusive of

interest and costs.

SECTION 7. Subsection (b), Section 28.052, Government Code, is amended to read as

follows:

(b) Except to the extent of any conflict with this subchapter, appeal [Appeai] is in the

manner provided by law for appeals [appeal] from justice courts [court to county cour].

SECTION 8. The heading to Section 28.053, Government Code, is amended to read as

follows:

Sec. 28.053. DE NOVO TRIAL [HE A RING] ON APPEAL.

SECTION 9. Subsections (b) and (d), Section 28.053, Government Code, are amended to

read as follows:

(b) Trial on appeal to the county court or county court at law is de novo. No further

pleadings are required [and the prced-re is the same as in small @!aims court].

(d) A person may appeal the final judgment [Judgqet] of the county court or county

court at law on the appeal to the court of appeals [is-TfpAl].

SECTION 10. (a) Subsections (a) and (e), Section 531.019, Government Code, as added by

Chapter 1161 (H.B. 75), Acts of the 80th Legislature, Regular Session, 2007, are amended to

read as follows:

(a) In this section, "public assistance benefits" means benefits provided under a public

assistance program under Chapter 31, 3, or 33, Human Resources Code.

(e) For purposes of Section 2001.171, an applicant for or recipient of public assistance

benefits has exhausted all available administrative remedies and a decision, including a

decision under Section 31.034 or 32.035, Human Resources Code, is final and appealable on

the date that, after a hearing:

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81st LEGISLATURE-REGULAR SESSION Ch. 1351, § 12(b)

(1) the hearing officer for the commission or a health and human services agency reaches

a final decision related to the benefits; and

(2) the appropriate attorney completes an administrative review of the decision and

notifies the applicant or recipient in writing of the results of that review.

(b) The changes in law made by this section apply only to an appeal of a final decision by

the Health and Human Services Commission related to financial assistance benefits under

Chapter 31, Human Resources Code, that is rendered on or after the effective date of this

Act. A final decision rendered by the commission before the effective date of this Act is

governed by the law in effect on the date the decision was rendered, and the former law is

continued in effect for that purpose.

SECTION 11. (a) Subsection (a), Section 821.025, Health and Safety Code, is amended to

read as follows:

(a) An owner divested of ownership of an animal under Section 821.023 [ordered Sold at

public auction as proAvdd in this subchapter] may appeal the order to a county court or

county court at law in the county in which the justice or municipal court is located. As a

condition of perfecting an appeal, not later than the loth calendar day after the date the order

is issued, the owner must file a notice of appeal and an appeal bond in an amount determined

by the [justice or municipal] courtfrom which the appeal is taken to be adequate to cover the

estimated expenses incurred in housing and caring for the impounded animal during the

appeal process. Not later than the fifth calendar day after the date the notice of appeal and

appeal bond is filed, the court from which the appeal is taken shall deliver a copy of the

court's transcript to the county court or county court at law to which the appeal is made.

Not later than the loth calendar day after the date the county court or county court at law,

as appropriate, receives the transcript, the court shall dispose of the appeal. The decision of

the county court or county court at law under this section is final and may not be further

appealed. [A4 o er m not appeal .ay an order:

[(1) to give the animal4 to a4 nonprofit animal sholter, pound, or society for the protection

of an4imals; orP

[(2) to humanely destroy the" animal.]

(b) Subsection (a), Section 821.025, Health and Safety Code, as amended by this section,

applies only to an appeal of a court order issued on or after the effective date of this Act. An

appeal of a court order issued before the effective date of this Act is covered by the law in

effect when the appeal was issued, and the former law is continued in effect for that purpose.

SECTION 12. (a) Subsection (bb), Section 3, Texas Probate Code, is amended to read as

follows:

(bb) "Probate proceeding" is synonymous with the terms "Probate matter," ["Prbte

proceedings ,

' ] "Proceeding in probate," and "Proceedings for probate." The term means a

matter or proceeding related to the estate of a decedent [are synon-ym u] and includes:

(1) the probate of a will, with or without administration of the estate;

(2) the issuance of letters testamentary and of administration;

(3) an heirship determination or small estate affidavit, community property administration, and homestead and family allowances;

(4) an application, petition, motion, or action regarding the probate of a will or an

estate administration, including a claim for money owed by the decedent;

(5) a claim arising from an estate administration and any action brought on the claim;

(6) the settling of a personal representative's account of an estate and any other matter

related to the settlement, partition, or distribution of an estate; and

(7) a will construction suit [include A matter or proceeding relating to the cstate

deeedenit].

(b) Chapter I, Texas Probate Code, is amended by adding Sections 4A, 4B, 4C, 4D, 4E, 4F,

4G, and 4H to read as follows:

Sec. 4A GENERAL PROBATE COURT JURISDICTION; APPEALS. (a) All probate

proceedings must be filed and heard in a court exercising original probate jurisdiction. The

4275
Ch. 1351, § 12(b) 81st LEGISLATURE-REGULAR SESSION

court exercising original probate jurisdiction also has jurisdiction of all matters related to

the probate proceeding as specified in Section 4B of this code for that type of court.

(b) A probate court may exercise pendent and ancillary jurisdiction as necessary to

promote judicial efficiency and economy.

(c) A final order issued by a probate court is appealable to the court of appeals.

Sec. 4B. MATTERS RELATED TO PROBATE PROCEEDING. (a) For purposes of

this code, in a county in which there is no statutory probate court or county court at law

exercising original probate jurisdiction, a matter related to a probate proceeding includes:

(1) an action against a personal representative or former personal representative

arising out of the representative's performance of the duties of a personal representative;

(2) an action against a surety of a personal representative or former personal representative;

(3) a claim brought by a personal representative on behalf of an estate;

(4) an action brought against a personal representative in the representative's capacity

as personal representative;

(5) an action for trial of title to real property that is estate property, including the

enforcement of a lien against the property; and

(6) an action for trial of the right of property that is estate property.

(b) For purposes of this code, in a county in which there is no statutory probate court, but

in which there is a county court at law exercising original probate jurisdiction, a matter

related to a probate proceeding includes:

(1) all matters and actions described in Subsection (a) of this section;

(2) the interpretation and administration of a testamentary trust if the will creating the

trust has been admitted to probate in the court; and

(3) the interpretation and administration of an inter vivos trust created by a decedent

whose will has been admitted to probate in the court.

(c) For purposes of this code, in a county in which there is a statutory probate court, a

matter related to a probate proceeding includes:

(1) all matters and actions described in Subsections (a) and (b) of this section; and

(2) any cause of action in which a personal representative of an estate pending in the

statutory probate court is a party in the representative's capacity as personal representative.

Sec. 4C. ORIGINAL JURISDICTION FOR PROBATE PROCEEDINGS. (a) In a

county in which there is no statutory probate court or county court at law exercising

original probate jurisdiction, the county court has original jurisdiction of probate proceedings.

(b) In a county in which there is no statutory probate court, but in which there is a county

court at law exercising original probate jurisdiction, the county court at law exercising

original probate jurisdiction and the county court have concurrent original jurisdiction of

probate proceedings, unless otherwise provided by law. The judge of a county court may

hear probate proceedings while sitting for the judge of any other county court.

(c) In a county in which there is a statutory probate court, the statutory probate court has

original jurisdiction of probate proceedings.

Sec. 4D. JURISDICTION OF CONTESTED PROBATE PROCEEDING IN COUNTY

WITH NO STATUTORY PROBATE COURT OR STATUTORY COUNTY COURT. (a) In

a county in which there is no statutory probate court or county court at law exercising

original probate jurisdiction, when a matter in a probate proceeding is contested, the judge

of the county court may, on the judge's own motion, or shal4 on the motion of any party to

the proceeding, according to the motion:

(1) request the assignment of a statutory probate court judge to hear the contested

matter, as provided by Section 25.0022, Government Code; or

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81st LEGISLATURE-REGULAR SESSION Ch. 1351, § 12(b)

(2) transfer the contested matter to the district court, which may then hear the contested

matter as if originally filed in the district court.

(b) If a party to a probate proceeding files a motion for the assignment of a statutory

probate court judge to hear a contested matter in the proceeding before the judge of the

county court transfers the contested matter to a district court under this section, the county

judge shall grant the motion for the assignment of a statutory probate court judge and may

not transfer the matter to the district court unless the party withdraws the motion.

(c) A party to a probate proceeding may file a motion for the assignment of a statutory

probate court judge under this section before a matter in the proceeding becomes contested,

and the motion is given effect as a motion for assignment of a statutory probate court judge

under Subsection (a) of this section if the matter later becomes contested.

(d) Notwithstanding any other law, a transfer of a contested matter in a probate

proceeding to a district court under any authority other than the authority provided by this

section:

(1) is disregarded for purposes of this section; and

(2) does not defeat the right of a party to the proceeding to have the matter assigned to a

statutory probate court judge in accordance with this section.

(e) A statutory probate court judge assigned to a contested matter under this section has

the jurisdiction and authority granted to a statutory probate court by this code. On

resolution of a contested matter for which a statutory probate court judge is assigned under

this section, including any appeal of the matter, the statutory probate court judge shall

return the matter to the county court for further proceedings not inconsistent with the orders

of the statutory probate court or court of appeals, as applicable.

(0 A district court to which a contested matter is transferred under this section has the

jurisdiction and authority granted to a statutory probate court by this code. On resolution

of a contested matter transferred to the district court under this section, including any

appeal of the matter, the district court shall return the matter to the county court for further

proceedings not inconsistent with the orders of the district court or court of appeals, as

applicable.

(g) The county court shall continue to exercise jurisdiction over the management of the

estate, other than a contested matter, until final disposition of the contested matter is made

in accordance with this section. After a contested matter is transferred to a district court,

any matter related to the probate proceeding may be brought in the district court. The

district court in which a matter related to the probate proceeding is filed may, on its own

motion or on the motion of any party, find that the matter is not a contested matter and

transfer the matter to the county court with jurisdiction of the management of the estate.

(h) If a contested matter in a probate proceeding is transferred to a district court under

this section, the district court has jurisdiction of any contested matter in the proceeding that

is subsequently filed, and the county court shall transfer those contested matters to the

district court. If a statutory probate court judge is assigned under this section to hear a

contested matter in a probate proceeding, the statutory probate court judge shall be assigned

to hear any contested matter in the proceeding that is subsequently filed.

(i) The clerk of a district court to which a contested matter in a probate proceeding is

transferred under this section may perform in relation to the contested matter any function

a county clerk may perform with respect to that type of matter.

Sec. 4E. JURISDICTION OF CONTESTED PROBATE PROCEEDING IN COUNTY

WITH NO STATUTORY PROBATE COURT. (a) In a county in which there is no

statutory probate court, but in which there is a county court at law exercising original

probate jurisdiction, when a matter in a probate proceeding is contested, the judge of the

county court may, on the judge's own motion, or shal4 on the motion of any party to the

proceeding, transfer the contested matter to the county court at law. In addition, the judge

of the county court, on the judge's own motion or on the motion of a party to the proceeding,

may transfer the entire proceeding to the county court at law.

(b) A county court at law to which a proceeding is transferred under this section may

hear the proceeding as if originally filed in that court. If only a contested matter in the

4277
Ch. 1351, § 12(b) 81st LEGISLATURE-REGULAR SESSION

proceeding is transferred, on the resolution of the matter, the matter shall be returned to the

county court for further proceedings not inconsistent with the orders of the county court at

law.

Sec. 4F. EXCLUSIVE JURISDICTION OF PROBATE PROCEEDING IN COUNTY

WITH STATUTORY PROBATE COURT. (a) In a county in which there is a statutory

probate court, the statutory probate court has exclusive jurisdiction of all probate proceedings, regardless of whether contested or uncontested. A cause of action related to the probate

proceeding must be brought in a statutory probate court unless the jurisdiction of the

statutory probate court is concurrent with the jurisdiction of a district court as provided by

Section 4H of this code or with the jurisdiction of any other court.

(b) This section shall be construed in conjunction and in harmony with Section 145 of this

code and all other sections of this code relating to independent executors, but may not be

construed to expand the court's control over an independent executor,

Sec. 4G. JURISDICTION OF STATUTORY PROBATE COURT WITH RESPECT TO

TRUSTS AND POWERS OF ATTORNEY In a county in which there is a statutory

probate court, the statutory probate court has jurisdiction of-

(1) an action by or against a trustee;

(2) an action involving an inter vivos trust, testamentary trust, or charitable trust;

(3) an action against an agent or former agent under a power of attorney arising out of

the agent's performance of the duties of an agent; and

(4) an action to determine the validity of a power of attorney or to determine an agent's

rights, powers, or duties under a power of attorney.

Sec. 4H. CONCURRENT JURISDICTION WITH DISTRICT COURT. A statutory

probate court has concurrent jurisdiction with the district court in:

(1) a personal injury, surviva4 or wrongful death action by or against a person in the

person's capacity as a personal representative;

(2) an action by or against a trustee;

(3) an action involving an inter vivos trust, testamentary trust, or charitable trust;

(4) an action involving a personal representative of an estate in which each other party

aligned with the personal representative is not an interested person in that estate;

(5) an action against an agent or former agent under a power of attorney arising out of

the agent's performance of the duties of an agent; and

(6) an action to determine the validity of a power of attorney or to determine au agent's

rights, powers, or duties under a power of attorney.

(c) Subsection (a), Section 5B, Texas Probate Code, is amended to read as follows:

(a) A judge of a statutory probate court, on the motion of a party to the action or on the

motion of a person interested in an estate, may transfer to the judge's [his] court from a

district, county, or statutory court a cause of action related to a probate proceeding

[appertaining to or inciden to an estate] pending in the statutory probate court or a cause of

action in which a personal representative of an estate pending in the statutory probate court

is a party and may consolidate the transferred cause of action with the other proceedings in

the statutory probate court relating to that estate.

(d) Subsection (i), Section 25.0022, Government Code, is amended to read as follows:

(i) A judge assigned under this section has the jurisdiction, powers, and duties given by

Sections 44 4C, 4F, 4G, 4H [ 5], 5B, 606, 607, and 608, Texas Probate Code, to statutory

probate court judges by general law.

(e) Subsection (c), Section 25.1132, Government Code, is amended to read as follows:

(c) A county court at law in Hood County has concurrent jurisdiction with the district court

in:

(1) civil cases in which the matter in controversy exceeds $500 but does not exceed

$250,000, excluding interest;

(2) family law cases and related proceedings;

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81st LEGISLATURE-REGULAR SESSION Ch. 1351, § 13(a)

(3) contested probate matters under Section 4D(a) [5()], Texas Probate Code; and

(4) contested guardianship matters under Section 606(b), Texas Probate Code.

(f) Subsection (b), Section 25.1863, Government Code, is amended to read as follows:

(b) A county court at law has concurrent jurisdiction with the district court over contested

probate matters. Notwithstanding the requirement in [Subsection](b)] Section 4D(a) [5],

Texas Probate Code, that the judge of the constitutional county court transfer a contested

probate proceeding to the district court, the judge of the constitutional county court shall

transfer the proceeding under that section to either a county court at law in Parker County or

a district court in Parker County. A county court at law has the jurisdiction, powers, and

duties that a district court has under [ubseetion (b),] Section 4D(a) [5], Texas Probate Code,

for the transferred proceeding, and the county clerk acts as clerk for the proceeding. The

contested proceeding may be transferred between a county court at law in Parker County and

a district court in Parker County as provided by local rules of administration.

(g) Subsection (a), Section 123.005, Property Code, is amended to read as follows:

(a) Venue in a proceeding brought by the attorney general alleging breach of a fiduciary

duty by a fiduciary or managerial agent of a charitable trust shall be a court of competent

jurisdiction in Travis County or in the county where the defendant resides or has its principal

office. To the extent of a conflict between this subsection and any provision of the Texas

Probate Code providing for venue of a proceeding brought with respect to a charitable trust

created by a will that has been admitted to probate, this subsection controls.

(h) Sections 4, 5, and 5A, Texas Probate Code, are repealed.

(i) The changes in law made by this section apply only to an action filed or a proceeding

commenced on or after the effective date of this Act. An action filed or proceeding

commenced before the effective date of this Act is governed by the law in effect on the date

the action was filed or the proceeding was commenced, and the former law is continued in

effect for that purpose.

SECTION 13. (a) Effective January 1, 2014, Subtitle A, Title 2, Estates Code, as adopted

by H.B. No. 2502, Acts of the 81st Legislature, Regular Session, 2009, if that Act is enacted

and becomes law, is amended by adding Chapters 31 and 32 to read as follows:

CHAPTER 31. GENERAL PROVISIONS

Sec. 31.001. SCOPE OF "PROBATE PROCEEDING" FOR PURPOSES OF CODE.

The term "probate proceeding," as used in this code, includes:

(1) the probate of a will, with or without administration of the estate;

(2) the issuance of letters testamentary and of administration;

(3) an heirship determination or small estate affidavit, community property administration, and homestead and family allowances;

(4) an application, petition, motion, or action regarding the probate of a will or an

estate administration, including a claim for money owed by the decedent;

(5) a claim arising from an estate administration and any action brought on the claim;

(6) the settling of a personal representative's account of an estate and any other matter

related to the settlement, partition, or distribution of an estate; and

(7) a will construction suit.

Sec. 31.002. MATTERS RELATED TO PROBATE PROCEEDING. (a) For purposes

of this code, in a county in which there is no statutory probate court or county court at law

exercising original probate jurisdiction, a matter related to a probate proceeding includes:

(1) an action against a personal representative or former personal representative

arising out of the representative's performance of the duties of a personal representative;

(2) an action against a surety of a personal representative or former personal representative;

(3) a claim brought by a personal representative on behalf of an estate;

4279
Ch. 1351, § 13(a) 81st LEGISLATURE-REGULAR SESSION

(4) an action brought against a personal representative in the representative's capacity

as personal representative;

(5) an action for trial of title to real property that is estate property, including the

enforcement of a lien against the property; and

(6) an action for trial of the right of property that is estate property.

(b) For purposes of this code, in a county in which there is no statutory probate court, but

in which there is a county court at law exercising original probate jurisdiction, a matter

related to a probate proceeding includes:

(1) all matters and actions described in Subsection (a);

(2) the interpretation and administration of a testamentary trust if the will creating the

trust has been admitted to probate in the court; and

(3) the interpretation and administration of an inter vivos trust created by a decedent

whose will has been admitted to probate in the court.

(c) For purposes of this code, in a county in which there is a statutory probate court, a

matter related to a probate proceeding includes:

(1) all matters and actions described in Subsections (a) and (b); and

(2) any cause of action in which a personal representative of an estate pending in the

statutory probate court is a party in the representative's capacity as personal representative.

CHAPTER 32. JURISDICTION

Sec. 32.001. GENERAL PROBATE COURT JURISDICTION; APPEALS. (a) All

probate proceedings must be filed and heard in a court exercising original probate jurisdiction. The court exercising original probate jurisdiction also has jurisdiction of all matters

related to the probate proceeding as specified in Section 31.002 for that type of court.

(b) A probate court may exercise pendent and ancillary jurisdiction as necessary to

promote judicial efficiency and economy.

(c) A final order issued by a probate court is appealable to the court of appeals.

Sec. 32.002. ORIGINAL JURISDICTION FOR PROBATE PROCEEDINGS. (a) In a

county in which there is no statutory probate court or county court at law exercising

original probate jurisdiction, the county court has original jurisdiction of probate proceedings.

(b) In a county in which there is no statutory probate court, but in which there is a county

court at law exercising original probate jurisdiction, the county court at law exercising

original probate jurisdiction and the county court have concurrent original jurisdiction of

probate proceedings, unless otherwise provided by law. The judge of a county court may

hear probate proceedings while sitting for the judge of any other county court.

(c) In a county in which there is a statutory probate court, the statutory probate court has

original jurisdiction of probate proceedings.

Sec. 32.003. JURISDICTION OF CONTESTED PROBATE PROCEEDING IN COUNTY WITH NO STATUTORY PROBATE COURT OR STATUTORY COUNTY COURT. (a)

In a county in which there is no statutory probate court or county court at law exercisinig

original probate jurisdiction, when a matter in a probate proceeding is contested, the judge

of the county court may, on the judge's own motion, or shall, on the motion of any party to

the proceeding, according to the motion:

(1) request the assignment of a statutory probate court judge to hear the contested

matter, as provided by Section 25.0022, Government Code; or

(2) transfer the contested matter to the district court, which may then hear the contested

matter as if originally filed in the district court.

(b) If a party to a probate proceeding files a motion for the assignment of a statutory

probate court judge to hear a contested matter in the proceeding before the judge of the

county court transfers the contested matter to a district court under this section, the county

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81st LEGISLATURE-REGULAR SESSION Ch. 1351, § 13(a)

judge shall grant the motion for the assignment of a statutory probate court judge and may

not transfer the natter to the district court unless the party withdraws the motion.

(c) A party to a probate proceeding may file a motion .for the assignment of a statutory

probate court judge under this section before a matter in the proceeding becomes contested,

a nd the motion is given effect as a motion for assignment of a statutory probate court judge

under Subsection (a) if the matter later becomes contested.

(d) Notwithstanding any other law, a transfer of a contested matter in a probate

proceeding to a district court under any authority other than the authority provided by this

section:

(1) is disregarded for purposes of this section; and

(2) does not defeat the right of a party to the proceeding to have the matter assigned to a

statutory probate court judge in accordance with this section.

(e) A statutory probate court judge assigned to a contested matter under this section has

the jurisdiction and authority granted to a statutory probate court by this subtitle. On

resolution of a contested matter for which a statutory probate court judge is assigned under

this section, including any appeal of the matter, the statutory probate court judge shall

return the matter to the county court for further proceedings not inconsistent with the orders

of the statutory probate court or court of appeals, as applicable.

(/l A district court to which a contested matter is transferred under this section has the

jtrisdiction and authority granted to a statutory probate court by this subtitle. On

resolution of a contested matter transferred to the district court under this section, including

any appeal of the matter, the district court shall return the matter to the county court for

further proceedings not inconsistent with the orders of the district court or court of appeals,

as applicable.

(g) The county court shall continue to exercise jurisdiction over the management of the

estate, other than a contested matter, until final disposition of the contested matter is made

in accordance with this section. After a contested matter is transferred to a district court,

any matter related to the probate proceeding may be brought in the district court. The

district court in which a matter related to the probate proceeding is filed may, on its own

motion or on the motion of any party, find that the matter is not a contested matter and

transfer the matter to the county court with jurisdiction of the management of the estate.

(h) If a contested matter in a probate proceeding is transferred to a district court under

this section, the district court has jurisdiction of any contested matter in the proceeding that

is subsequently filed, and the county court shall transfer those contested matters to the

district court. If a statutory probate court judge is assigned under this section to hear a

contested matter in a probate proceeding, the statutory probate court judge shall be assigned

to hear any contested matter in the proceeding that is subsequently filed.

(i) The clerk of a district court to which a contested matter in a probate proceeding is

transferred under this section may perform in relation to the contested matter any function

a county clerk may perform with respect to that type of matter.

Sec. 32.004. JURISDICTION OF CONTESTED PROBATE PROCEEDING IN COUNTY WITH NO STATUTORY PROBATE COURT. (a) In a county in which there is no

statutory probate court, but in which there is a county court at law exercising original

probate jurisdiction, when a matter in a probate proceeding is contested, the judge of the

county court may, on the judge's own motion, or shall, on the motion of any party to the

proceeding, transfer the contested matter to the county court at law. In addition, the judge

of the county court, on the judge's own motion or on the motion of a party to the proceeding,

may transfer the entire proceeding to the county court at law.

(b) A county court at law to which a proceeding is transferred under this section may

hear the proceeding as if originally filed in that court. If only a contested matter in the

proceeding is transferred, on the resolution of the matter, the matter shall be returned to the

county court for further proceedings not inconsistent with the orders of the county court at

law.

Sec. 32.005. EXCLUSIVE JURISDICTION OF PROBATE PROCEEDING IN COUNTY WITH STATUTORY PROBATE COURT. (a) In a county in which there is a statutory

4281
Ch. 1351, § 13(a) 81st LEGISLATURE-REGULAR SESSION

probate court, the statutory probate court has exclusive jurisdiction of all probate proceedings, regardless of whether contested or uncontested. A cause of action related to the probate

proceeding must be brought in a statutory probate court unless the jurisdiction of the

statutory probate court is concurrent with the jurisdiction of a district court as provided by

Section 32.007 or with the jurisdiction of any other court.

(b) This section shall be construed in conjunction and in harmony with Section 145 and

all other sections of this title relating to independent executors, but may not be construed to

expand the court's control over an independent executor.

Sec. 32.006. JURISDICTION OF STATUTORY PROBATE COURT WITH RESPECT

TO TRUSTS AND POWERS OF ATTORNEY In a county in which there is a statutory

probate court, the statutory probate court has jurisdiction of-

(1) an action by or against a trustee;

(2) an action involving an inter vivos trust, testamentary trust, or charitable trust;

(3) an action against an agent orformer agent under a power of attorney arising out of

the agent's performance of the duties of an agent; and

(4) an action to determine the validity of a power of attorney or to determine an agent's

rights, powers, or duties under a power of attorney.

Sec. 32.007. CONCURRENT JURISDICTION WITH DISTRICT COURT. A statutory

probate court has concurrent jurisdiction with the district court in:

(1) a personal injury, survival, or wrongful death action by or against a person in the

person's capacity as a personal representative;

(2) an action by or against a trustee;

(3) an action involving an inter vivos trust, testamentary trust, or charitable trust;

(4) an action involving a personal representative of an estate in which each other party

aligned with the personal representative is not an interested person in that estate;

(5) an action against an agent or former agent under a power of attorney arising out of

the agent's performance of the duties of an agent; and

(6) an action to determine the validity of a power of attorney or to determine an agents

rights, powers, or duties under a power of attorney.

(b) Sections 4A, 4B, 4C, 4D, 4E, 4F, 4G, and 4H, Texas Probate Code, as added by Section

12 of this Act, are repealed.

(c) Except as otherwise provided by this subsection, this section takes effect January 1,

2014. The changes in law made by this section take effect only if H.B. No. 2502, Acts of the

81st Legislature, Regular Session, 2009, is enacted and becomes law. If that bill does not

become law, this section has no effect.

SECTION 14. Except as otherwise provided by this Act, the changes in law made by this

Act apply only to an action filed on or after the effective date of this Act. An action filed

before the effective date of this Act is governed by the law applicable to the action

immediately before the effective date of this Act, and the former law is continued in effect for

that purpose.

SECTION 15. Except as otherwise provided by this Act, this Act takes effect September

1, 2009.

Passed the Senate on April 2, 2009: Yeas 31, Nays 0; May 28, 2009, Senate refused to

concur in House amendments and requested appointment of Conference Committee; May 29, 2009, House granted request of the Senate; June 1, 2009, Senate

adopted Conference Committee Report by the following vote: Yeas 31, Nays 0;

passed the House, with amendments, on May 20, 2009: Yeas 139, Nays 0, one

present not voting; May 29, 2009, House granted request of the Senate for

appointment of Conference Committee; May 31, 2009, House adopted Conference

Committee Report by the following vote: Yeas 146, Nays 0, two present not voting.

Approved June 19, 2009.

Effective September 1, 2009, except § 13, which take effect January 1, 2014.

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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 of2 
entered 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. 

Maria Del 

~,4~.-,, Rosario G. Pope .& ~ 

SUBSCRIBED AND SWORN T day of 

_ _....,~~-~,2017. 

~"'"""' {(~~~~\ NotarY Public 

.: :.~ STATC OF TEXAS 

;:;;_~} Not~ :-; ID# 12425472-4 

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~titions1 and motion~ ,:re~cijng probate an~ administrationfl sh~J~e filed and he~9-Jn, 

the1 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 this1 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 1probate 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. 

10 
r • 

) 

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:.11oa5, § 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~mrts 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, 161 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 APPENDIX
IN 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