Affirmed and Opinion filed February 23, 2023.

In The

Fourteenth Court of Appeals

NO. 14-22-00272-CV

ANNA MARIE HERZFELD ALLEBACH, Appellant

V.

JULIE ELIZABETH SCHMIDT GOLLUB, Appellee

On Appeal from the Probate Court

Galveston County, Texas

Trial Court Cause No. PR-0079599-A

OPINION

In this appeal from a summary judgment, the nonmovant argues that the

judgment should be reversed because the movant’s suit is barred by limitations, 

because the movant lacks both capacity and standing, and because the movant is not

entitled to attorney’s fees. For the reasons given below, we overrule all of these 

arguments and affirm the trial court’s judgment.
2

BACKGROUND

This case arises out of a probate proceeding.

The decedent fathered three children: Paul, Deborah, and Julie. Their mother 

was the decedent’s first wife, Carole, who predeceased him. After Carole’s passing, 

the decedent married his second wife, Anna. The ceremony for this second marriage 

was performed in another state, and the children did not become aware of the 

marriage until after the decedent’s death.

Upon his passing, Anna tried to probate a will that had been executed shortly 

before the decedent’s death. In that will, the decedent left very little of his belongings 

to his children. He left a ring to Paul and some coins to Deborah. He left nothing for 

Julie. The lion’s share of the estate went instead to Anna, whom the decedent also 

named as the executor.

Julie filed a will contest, alleging among other things that the decedent had 

been suffering from memory declines and that he lacked testamentary capacity. Julie 

also asserted several causes of action against Anna. And among them, Julie sought 

a declaratory judgment that the marriage between Anna and the decedent was void 

as a matter of law because Anna was the daughter of the decedent’s biological 

sister—which made her the niece of the decedent and the cousin of his children.

Julie moved for a partial summary judgment as to her claim that the marriage 

between Anna and the decedent was void. Anna filed a response, and the trial court 

granted a partial summary judgment in Julie’s favor.

Anna now appeals from that judgment. See Estate of Durrill, 570 S.W.3d 945, 

957 (Tex. App.—Corpus Christi 2019, pet. denied) (a judgment voiding a marriage 

is appealable).
3

ANALYSIS

I. Julie proved that the marriage was void.

Texas law presumes that every marriage is valid “unless expressly made void 

by Chapter 6 [of the Texas Family Code] or unless expressly made voidable by 

Chapter 6 and as annulled as provided by that chapter.” See Tex. Fam. Code § 1.101. 

This presumption applies to the marriage between Anna and the decedent because, 

even though their marriage was performed in another state, they were domiciled here 

in Texas. See Tex. Fam. Code § 1.103 (“The law of this state applies to persons 

married elsewhere who are domiciled in this state.”).

To overcome this presumption, Julie had the burden of proving that the 

marriage between Anna and the decedent was either void or voidable. There are 

significant differences between these two types of invalid marriages.

Voidable marriages are identified in Subchapter B of Chapter 6, which is 

entitled “Grounds for Annulment,” and they include marriages that are founded on 

such grounds as fraud and mental incapacity. See Tex. Fam. Code §§ 6.102–.110. 

To challenge a voidable marriage, a party must bring a suit for annulment. See Tex. 

Fam. Code § 6.401(a). And this suit must be brought before the death of either party 

to the marriage, except as provided by the Texas Estates Code. See Tex. Fam. Code 

§ 6.111.

Void marriages, on the other hand, are identified in Subchapter C of Chapter 

6, which is entitled “Declaring a Marriage Void,” and they include marriages 

founded on grounds such as consanguinity. See Tex. Fam. Code § 6.201–.206. To 

challenge a void marriage, a party must bring a suit to declare the marriage void. See 

Tex. Fam. Code § 6.401(b). And under our common law, such suits may be brought 
4

“by anyone, at any time, directly or collaterally.” See Simpson v. Neely, 221 S.W.2d 

303, 308 (Tex. App.—Waco 1949, writ ref’d).

Relying on Subchapter C, Julie argued in her motion for summary judgment 

that the marriage between Anna and the decedent was void on the basis of 

consanguinity. See Tex. Fam. Code § 6.201. This argument presented a traditional 

ground for summary judgment, which meant that Julie had the initial burden of 

proving that there was no genuine issue of material fact and that she was entitled to 

judgment as a matter of law. See Tex. R. Civ. P. 166a(c).

To satisfy her burden, Julie attached an affidavit to her motion, in which she 

attested that Anna is the daughter of the decedent’s biological sister, which makes 

Anna the decedent’s biological niece. This evidence was clear, positive, and direct, 

and it conclusively established that the marriage between Anna and the decedent is 

void. See Tex. Fam. Code § 6.201(4) (“A marriage is void if one party to the 

marriage is related to the other as . . . a son or daughter of a brother or sister, of the 

whole or half blood or by adoption.”). The burden accordingly shifted to Anna, as 

the nonmovant, to raise a fact issue on the question of consanguinity or otherwise 

show that summary judgment was improper. See Katy Venture, Ltd. v. Cremona 

Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015) (per curiam).

II. Anna did not establish that Julie’s suit is barred by limitations.

When she filed her response in the trial court, Anna did not contest that she 

was the decedent’s niece. Instead of raising a fact issue as to the question of 

consanguinity, Anna presented several legal arguments for showing that Julie was 

not entitled to summary judgment. The trial court implicitly rejected those arguments

when it rendered a summary judgment in Julie’s favor. Anna reasserts those 

arguments in her brief on appeal, and we review the trial court’s rejection of those 
5

arguments de novo. See Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 579 (Tex. 

2017).

Anna begins by arguing that Julie’s challenge to the marriage was barred by 

a statute of limitations. Anna relies specifically on Section 123.102 of the Texas 

Estates Code, which provides in material part that “if a proceeding described by 

Section 123.101(a) is not pending on the date of a decedent’s death, an interested 

person may file an application with the court requesting that the court void the 

marriage of the decedent if . . . the marriage commenced not earlier than three years 

before the date of the decedent’s death.” Anna then refers to Julie’s own summaryjudgment evidence to prove the application of this statute, because Julie attested in 

her affidavit that the decedent married Anna more than four years before his death.

By advocating for the application of this statute of limitations, Anna implicitly 

suggests that Section 123.102 has supplanted the common law rule that a void 

marriage may be challenged “at any time.”

Julie disputes Anna’s reading of Section 123.102, essentially countering that 

the statute cannot apply when, as here, a person has challenged a marriage on the 

basis that it is void, as opposed to voidable. This dispute presents a question of 

statutory interpretation, which we also consider de novo. See Lippincott v. 

Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam).

When interpreting a statute, our primary objective is to determine and give 

effect to the Legislature’s intent. See In re Mem’l Hermann Hosp. Sys., 464 S.W.3d 

686, 701 (Tex. 2015) (orig. proceeding). We identify that intent by looking first to 

the statute’s plain language, and we presume that the Legislature purposefully chose 

which words to include in the statute and which to omit. Id. We read the statute as a 

whole, rather than look at individual provisions in isolation. Id. We also consider the 

object sought to be attained by the statute, the circumstances under which the statute 
6

was enacted, and the consequences of a particular construction. See Tex. Gov’t Code 

§ 311.023(1), (2), (5).

Section 123.102 begins with a cross-reference to Section 123.101. See Tex. 

Est. Code § 123.102(a) (“[I]f a proceeding described by Section 123.101(a) is not 

pending on the date of a decedent’s death . . . .”). Both of these statutes are organized 

under Subchapter C of Chapter 123 of the Texas Estates Code. The text and structure 

of that subchapter plainly indicate that the limitations provision of Section 123.102 

was not intended to apply to challenges of void marriages.

The first reflection of that intent is the title of the subchapter: “Certain 

Marriages Voidable After Death.” The title references “voidable” marriages, not 

“void” marriages. The restrictive word “certain” also reflects that the subchapter is 

only concerned with a narrow scope of voidable marriages.

That narrow scope is apparent from Section 123.101, the first statute 

organized under the subchapter, which is titled “Proceeding to Void Marriage Based 

on Mental Capacity Pending at Time of Death.” The text of the statute refers 

exclusively to mental incapacity, and as we mentioned earlier in this opinion, mental 

incapacity was identified by the Legislature as a ground that made a marriage 

voidable, not void. See Tex. Fam. Code § 6.108 (providing that mental incapacity is 

a ground for annulment).

The next statute in the subchapter is Section 123.102. The title of this statute 

is “Application to Void Marriage After Death,” and the word “void” in this title is 

part of an infinitive (“to void”), rather than an adjective modifying “marriage.” The 

body of this statute—which contains the limitations provision cited by Anna—does 

not contain any express reference to mental incapacity, but that narrow scope is still 

apparent from the statute’s other language. The statute begins with the crossreference to Section 123.101, which demonstrates that the statute is still concerned 
7

with mental incapacity. The statute also draws a contrast to Section 123.101: 

whereas Section 123.101 only concerns proceedings that are pending at the time of 

a decedent’s death, Section 123.102 only concerns proceedings that are commenced 

after a decedent’s death.

The third statute in the subchapter is Section 123.103, which is titled “Action 

on Application to Void Marriage after Death.” This statute contains an express crossreference to Section 123.102—which again is the same statute cited by Anna as the 

basis for her limitations argument—but the statute provides that a marriage may only 

be invalidated under Section 123.102 upon a finding of mental incapacity.

The fourth and final statute of the subchapter is Section 123.104, which is 

titled “Effect of Voided Marriage.” This statute does not contain any express 

mention of mental incapacity. It merely provides that if a court declares a marriage 

void in a proceeding under either Section 123.101 or Section 123.102, then the other 

party to the marriage is not considered the decedent’s surviving spouse for purposes 

of any law of this state.

Altogether, the text and structure of Subchapter C of Chapter 123 reflect a 

singular focus of invalidating a marriage on the ground of mental incapacity, which 

makes a marriage voidable, not void. Thus, the limitations provision contained 

within Section 123.102 should only be understood to apply to a challenge to a 

marriage made voidable on the ground of mental incapacity. This understanding 

comports with the plain language of the statute, and it also preserves the 

longstanding common law rule that challenges to void marriages are not subject to 

limitations. See Simpson v. Neely, 221 S.W.2d 303, 308 (Tex. App.—Waco 1949, 

writ ref’d) (“A void marriage is one that is absolutely null, having no force or effect 

for any purpose, at any place or time, and whose invalidity may be asserted by 

anyone, at any time, directly or collaterally.”); Hovious v. Hovious, No. 2-04-169-
8

CV, 2005 WL 555219, at *6 (Tex. App.—Fort Worth Mar. 10, 2005, pet. denied) 

(mem. op.) (same).

Because Julie sought a declaration that the marriage between Anna and the 

decedent was void on the ground of consanguinity, rather than voidable on the 

ground of mental incapacity, we conclude that the limitations provision contained 

within Section 123.102 has no application to this case. Anna accordingly failed to 

demonstrate that Julie’s suit was barred by a statute of limitations.

III. Anna did not establish that Julie lacks capacity.

Anna argues next that Julie lacks capacity to sue because she is not an 

“interested person” for purposes of Section 123.102. This capacity argument 

represents a continuation of Anna’s limitations argument, which also depended on 

Section 123.102. Because we just explained in the immediately preceding discussion

that Section 123.102 does not apply to Julie’s suit, we conclude that Anna’s capacity 

argument lacks merit.

IV. Anna did not establish that Julie lacks standing.

Anna’s next argument focuses on Julie’s standing—an issue that does not 

concern whether Julie has the legal authority to act (as in capacity), but rather 

whether Julie has a justiciable interest in the controversy. See Nootsie, Ltd. v. 

Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996) (explaining the 

difference between standing and capacity).

The general test for standing requires a satisfaction of two elements: first, that 

there is a real controversy between the parties; and second, that the controversy will 

actually be determined by the judicial declaration sought. See Tex. Ass’n of Bus. v. 

Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).
9

Anna argues that Julie cannot satisfy this test because her interest in the 

decedent’s estate would not change even if she obtained a judicial declaration that 

the marriage between Anna and the decedent is void. The effect of such a declaration 

is that Anna would be treated in the will as having predeceased the decedent. See 

Tex. Est. Code § 123.001(b)(1) (“If, after the testator makes a will, the testator’s 

marriage is dissolved by . . . a declaration that the marriage is void . . . all provisions 

in the will, including all fiduciary appointments, shall be read as if the former spouse 

and each relative of the former spouse who is not a relative of the testator had failed 

to survive the testator.”). And under the remaining terms of the will, if Anna 

predeceases the decedent, then her interest in the estate is left to Julie’s sister, 

Deborah. Thus, Anna argues that Julie has nothing of value to gain by challenging 

the marriage.

Anna neglects to mention a separate provision in the will, which states that if 

the decedent’s beneficiaries were to die before the full distribution of the estate, then 

the remaining portion of the estate must be distributed to his heirs according to the 

laws of intestate succession. Because a full distribution of the estate has not yet 

occurred and Julie is the decedent’s daughter, she could still be treated as an heir 

under this provision, which means that Julie has a justiciable interest in the will 

(apart from her separate will contest), as well as a reason for challenging the 

marriage between Anna and the decedent.

Based on the foregoing, we conclude that Julie had standing to challenge the 

marriage.

V. Anna did not establish that Julie was not entitled to attorney’s fees.

Julie requested an award of attorney’s fees in her motion for summary 

judgment. As authority for the requested award, Julie cited Section 37.009 of the 

Texas Civil Practice and Remedies Code, which provides for reasonable and 
10

necessary attorney’s fees in connection with a declaratory judgment. She also 

supported her requested award with an attorney’s affidavit and billing records from 

the attorney’s law firm. The trial court granted Julie her requested award in its 

summary-judgment order.

Now on appeal, Anna does not contend that the evidence is legally insufficient 

to support the award. Rather, Anna argues that attorney’s fees were not recoverable 

under Section 37.009—also known as the Uniform Declaratory Judgments Act 

(UDJA)—because even though that statute is remedial, the Legislature did not intend 

for the UDJA to supplant all other statutes and remedies, or for it to be used “as a 

vehicle to obtain otherwise impermissible attorney’s fees.” See MBM Fin. Corp. v. 

Woodlands Operating Co., 292 S.W.3d 660, 669 (Tex. 2009). And Anna contends 

that attorney’s fees are “otherwise impermissible” in this case because they are not 

specifically authorized by Section 123.102 of the Texas Estates Code.

Once again, Anna’s argument depends on the faulty premise that Julie’s suit 

is governed by Section 123.102. As we have already explained elsewhere in this 

opinion, Section 123.102 is not applicable here. Therefore, the absence of any 

language in Section 123.102 specifically authorizing an award of attorney’s fees is 

not determinative.

A different statute is applicable, and it specifically authorizes an award of 

attorney’s fees: “In a suit for dissolution of a marriage, the court may award 

reasonable attorney’s fees and expenses.” Tex. Fam. Code § 6.708(c). Julie’s suit is 

a suit for dissolution of a marriage because it seeks a declaration that the marriage 

between Anna and the decedent is void. See Tex. Est. Code § 123.001(b)(1) 

(recognizing that a marriage can be dissolved by a declaration that the marriage is 

void). Accordingly, Julie’s award of attorney’s fees under the UDJA was not 

otherwise impermissible. See Chandler v. Chandler, 991 S.W.2d 367, 405 n.28 (Tex. 
11

App.—El Paso 1999, pet. denied) (recognizing in a suit to declare a marriage void 

that a party could have obtained attorney’s fees under the UDJA or the statutory 

predecessor to Section 6.708(c)), overruled on other grounds by Agar Corp. v. 

Electro Circuits Int’l, LLC, 580 S.W.3d 136 (Tex. 2019).

CONCLUSION

The trial court’s judgment is affirmed.

/s/ Tracy Christopher

Chief Justice

Panel consists of Chief Justice Christopher and Justices Bourliot and Wilson.