By: Carona S.R. No. 1089
SENATE RESOLUTION
BE IT RESOLVED by the Senate of the State of Texas, 81st
Legislature, Regular Session, 2009, That Senate Rule 12.03 be
suspended in part as provided by Senate Rule 12.08 to enable the
conference committee appointed to resolve the differences on
Senate Bill No. 408 (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) to consider and take action on the
following matters:
(1) Senate Rule 12.03(4) is suspended to permit the
committee to add text not included in either the house or senate
version of the bill by adding the following SECTIONs to the bill:
SECTION 12. (a) Section 3(bb), Texas Probate Code, is
amended to read as follows:
(bb) "Probate proceeding" is synonymous with the
terms "Probate matter," ["Probate proceedings,"] "Proceeding in
probate," and "Proceedings for probate." The term means a matter
or proceeding related to the estate of a decedent [are
synonymous] 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 estate of a decedent].
(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 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 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 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.
(f) 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 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. 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, 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 agent's rights, powers, or duties
under a power of attorney.
(c) Section 5B(a), 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 incident 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) Section 25.0022(i), Government Code, is amended to
read as follows:
(i) A judge assigned under this section has the
jurisdiction, powers, and duties given by Sections 4A, 4C, 4F,
4G, 4H [5, 5A], 5B, 606, 607, and 608, Texas Probate Code, to
statutory probate court judges by general law.
(e) Section 25.1132(c), 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;
(3) contested probate matters under Section 4D(a)
[5(b)], Texas Probate Code; and
(4) contested guardianship matters under Section
606(b), Texas Probate Code.
(f) Section 25.1863(b), 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 [Subsection
(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) Section 123.005(a), 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;
(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 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, 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 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) 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.
(f) 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 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 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 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. 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 agent's 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.
Explanation: This addition is necessary to amend
provisions relating to jurisdiction and venue of probate
proceedings and proceedings regarding powers of attorney and
certain trusts and to add corresponding provisions to the Estates
Code if legislation creating that code is enacted and becomes
law.
(2) Senate Rule 12.03(1) is suspended to permit the
committee to change, alter, or amend text not in disagreement by
substituting the following for the effective date provision of
the bill:
SECTION 15. Except as otherwise provided by this Act,
this Act takes effect September 1, 2009.
Explanation: The change in the effective date provision
is a technical change made necessary by the addition of SECTION
13 to the bill, as explained in Item (1) of this resolution. The
changes in law made by that SECTION take effect January 1, 2014,
if certain circumstances are met.
_______________________________
President of the Senate
I hereby certify that the
above Resolution was adopted by
the Senate on June 1, 2009.
_______________________________
Secretary of the Senate