NO. 12-09-00261-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN RE: SANDRA BURNS, '

INDEPENDENT EXECUTRIX

OF THE ESTATE OF ' ORIGINAL PROCEEDING

KENNETH WALKER, DECEASED,

RELATOR '

MEMORANDUM OPINION

Relator Sandra Burns, independent executrix of the estate of Kenneth Walker, 

deceased, filed a motion to dismiss the underlying proceeding for want of jurisdiction and 

a motion to quash a subpoena duces tecum served by the real party in interest. The 

respondent denied each motion by written order.1 In this original proceeding, Burns 

seeks a writ of mandamus directing the respondent to vacate these orders and issue an 

order granting both motions. We deny the petition.

BACKGROUND

Kenneth S. Walker was a beneficiary of the Kenneth S. Walker Special Trust, 

which was administered by the real party in interest, Bank of America, N.A., trustee 

(BOA). On June 7, 2004, Walker executed a promissory note in the original principal 

sum of $73,365.54, payable 180 days after its date to BOA as trustee of the Kenneth S. 

Walker Special Trust. Walker died on October 21, 2004, prior to the maturity of the note. 

Sandra Burns was appointed as independent executrix of his estate approximately one 

month later. 

After the note matured, BOA filed an authenticated unsecured claim in the 

probate proceeding and presented the claim to Burns. Burns took no action on the claim 

and stated in a deposition that she had no intention of paying the claim. BOA sued Burns 

in the district court to collect the amounts owed under the note. The relief BOA sought 

 

1 The respondent is the Honorable Charles Mitchell, Judge of the 273rd Judicial District Court, 

San Augustine County, Texas. 
2

included a constructive trust on the estate assets to which Burns had obtained title. Burns 

filed a motion to dismiss the suit for lack of jurisdiction, which the respondent denied. 

BOA prevailed in the suit and was awarded a judgment for $79,691.72, attorney’s 

fees, and postjudgment interest. Later, BOA served Burns with a subpoena duces tecum 

requiring that she appear and produce certain documents related to Walker’s estate. 

Burns filed a motion to quash the subpoena, which the respondent denied. Burns then

filed this original proceeding. Burns also filed a motion for temporary relief pending the 

disposition of her mandamus petition. We granted the motion.

PREREQUISITES TO MANDAMUS

A writ of mandamus will issue to correct a clear abuse of discretion when there is 

no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-

36 (Tex.2004); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). A trial court abuses 

its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear 

and prejudicial error of law or if it clearly fails to correctly analyze or apply the law.

Walker, 827 S.W.2d at 839-40. If the challenged judgment or order is void, the relator 

need not show that she had no adequate remedy by appeal. See In re Sw. Bell. Tel. Co., 

35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding). 

JURISDICTION

Burns contends that the County Court of San Augustine County has general 

jurisdiction of probate matters, except those contested matters that are transferred to the 

district court. She points out that BOA’s suit was originally filed in the district court, and 

therefore is not a contested matter that was transferred from the county court to the 

district court. Consequently, she maintains, the respondent trial court lacked jurisdiction 

of the suit, and so the challenged orders are void. We disagree.

Probate Jurisdiction

District courts are courts of general jurisdiction. Dubai Petroleum Co. v. Kazi, 12 

S.W.3d 71, 75 (Tex. 2000). Their jurisdiction “consists of exclusive, appellate, and 

original jurisdiction of all actions, proceedings, and remedies, except in cases where 

exclusive, appellate, or original jurisdiction may be conferred by [the Texas] Constitution 

or other law on some other court, tribunal, or administrative body.” TEX. CONST. art. 

V, § 8. Texas Probate Code section 4 limits the general jurisdiction of the district court 
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by granting the county court the general jurisdiction of a probate court. See TEX. PROB.

CODE ANN. § 4 (Vernon 2003).2

Section 4 provides that the county court “shall . . . transact all business 

appertaining to estates subject to administration, including the settlement, partition, and 

distribution of estates.” Id. In county court probate proceedings, the phrases 

“appertaining to estates” and “incident to an estate” include generally all matters relating 

to the settlement, partition, and distribution of decedent’s estates. Id. § 5A(a) (Vernon 

2003). In counties, such as San Augustine County, in which there is no statutory court 

exercising the jurisdiction of a probate court, all applications, petitions, and motions 

regarding probate and administration must be filed and heard in the county court. Id.

§ 5(b) (Vernon 2003). 

The District Court

Where, as in San Augustine County, no statutory court exercises the jurisdiction 

of a probate court, the contested portion of a probate proceeding may be transferred to the 

district court if the statutory procedure is followed. TEX. PROB. CODE ANN. § 5(b). When 

a contested matter is transferred under section 5(b), the district court has the general 

jurisdiction of a probate court. Id. § 5(b-3) (Vernon Supp. 2008). On resolution of the 

contested matter, the district court must transfer the resolved portion of the case to the 

county court for further proceedings not inconsistent with the district court’s orders. Id. 

Burns asserts that because BOA’s suit against her cannot be considered a contested 

portion of the probate proceeding, the county court has exclusive jurisdiction of the suit

under section 5(b). 

BOA points out, however, that a part of the relief it sought in the district court 

was the imposition of a constructive trust. Several courts have concluded that a county 

court does not have jurisdiction to impose a constructive trust in a probate proceeding. 

See, e.g., In re Estate of Alexander, 188 S.W.3d 327, 331 (Tex. App.–Waco 2006, no 

pet.); Mejorada v. Gonzalez, 663 S.W.2d 891, 893 (Tex. App.–San Antonio 1983, no 

writ). These courts noted that the statute defining what matters are “appertaining to an 

 

2

In 2009, the Texas Legislature repealed the statutes prescribing the jurisdictional scheme for 

probate cases and enacted new legislation. See Act of June 19, 2009, 81st Leg., R.S., ch. 1351, § 12, 2009 

Tex. Gen. Laws 4275-78. The new legislation was effective on September 1, 2009. See id., 2009 Tex. 

Gen. Laws at 4282. But the changes apply only to an action filed or a proceeding commenced on or after 

the effective date. See id., 2009 Tex. Gen. Laws at 4279. Here, the underlying probate proceeding was 

commenced on November 3, 2004. Therefore, the former law applies. See id. For simplicity, all probate 

code references will be to the section as it was numbered before repeal.
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estate” and “incident to an estate” provides different definitions for probate proceedings 

in statutory probate courts and district courts than for probate proceedings in 

constitutional and statutory county courts. See, e.g., Estate of Alexander, 188 S.W.3d at 

331-32; Mejorada, 663 S.W.2d at 892-93. For statutory probate courts and district 

courts, the definition includes “the interpretation and administration of testamentary 

trusts and the applying of constructive trusts”; for constitutional and statutory county 

courts, it does not. Compare TEX. PROB. CODE ANN. § 5A(a) with TEX. PROB. CODE ANN.

§ 5A(b). We agree with the reasoning of these courts. 

It has long been the rule that when the powers of a county court exercising 

probate jurisdiction are inadequate to grant full relief, the district court has jurisdiction 

and may grant relief. See Gregory v. Ward, 118 Tex. 526, 533, 18 S.W.2d 1049, 1051 

(1929). Despite the mandatory language of section 5(b), this rule has not changed. See 

Gaynier v. Ginsberg, 763 S.W.2d 461, 463 (Tex. App.–Dallas 1988, no writ). Therefore, 

where the pleadings show the jurisdiction of the county court is inadequate to grant the

relief sought, the district court should exercise its probate jurisdiction. Id. This rule 

applies when a party seeks the imposition of a constructive trust. Id. But the mere 

request for a constructive trust is insufficient if the county court can grant adequate relief 

for all claims asserted. See In re Stark, 126 S.W.3d 635, 640 (Tex. App.–Beaumont 

2004, orig. proceeding [mand. denied]) (holding that district court did not abuse its 

discretion by transferring claims to county court at law where claimant pleaded for 

constructive trust but damage award would provide adequate relief).

The Trial Court’s Orders

In its original petition, BOA alleged in part that 

Walker executed the note, a copy of which was attached as an exhibit to the 

petition; 

BOA timely presented its duly authenticated claim to Burns; 

Burns failed to allow the claim and stated in a deposition that she had no 

intention of paying the claim; 

Burns obtained the actual use and possession of estate assets that should have 

been used to pay BOA’s claim; 

Burns used these assets for her personal benefit at the expense of those 

entitled to the estate, including BOA; 
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it is likely that there will be insufficient assets in the estate to satisfy BOA’s 

claim against it; 

Burns had obtained title to certain property of the estate and would be unjustly 

enriched at BOA’s expense if allowed to retain it; and 

BOA filed suit to collect the amounts due and owing under the note. 

BOA sought a judgment for various relief including an order for payment of the claim 

and the imposition of a constructive trust. 

By their petition, BOA sought two types of relief. One, the order for payment of 

the claim, would authorize execution on estate assets; the other, imposition of a 

constructive trust, would affect estate assets to which Burns had obtained title. The 

district court reasonably could have concluded that because the county court could not 

impose a constructive trust, its jurisdiction was inadequate to grant adequate relief for 

BOA’s claims. Therefore, the trial court did not abuse its discretion in denying Burns’s 

motion to dismiss BOA’s suit for want of jurisdiction and her motion to quash the 

subpoena duces tecum served by BOA. Consequently, the trial court’s orders are not 

void.

DISPOSITION

Because Burns has not shown any abuse of discretion by the trial court, she has 

not shown that she is entitled to mandamus relief. Accordingly, Burns’s petition for writ 

of mandamus is denied, and our stay is lifted.

SAM GRIFFITH 

Justice

Opinion delivered July 30, 2010.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)