In re Azle Manor, Inc., 83 S.W.3d 410 (Tex. App.—Fort Worth 2002, orig. proceeding [mand. denied]).
While a will contest was pending in a statutory probate court,
Executor filed a survival action in district court. Defendants in the
district court action requested that the probate court transfer the
survival action to itself under Probate Code § 5B. The probate court
refused. Defendants then asked the appellate court to grant a writ of
mandamus to force the probate court to transfer the action.
The appellate court refused to grant the writ and rejected Defendants’
argument that the probate court had exclusive, mandatory jurisdiction
over the survival action because the probate court proceedings pre-dated
the survival action and were still pending. The court examined Probate
Code § 5B and concluded that the probate court’s ability to transfer is
purely discretionary. The section provides that the statutory probate
court judge “may” transfer a case pending in the district court when it
is appertaining to or incident to an estate pending in the statutory
probate court. The appellate court found that there was no evidence that
the probate judge’s refusal to transfer the case was an abuse of
discretion.
The court rejected the argument that the part of Probate Code § 5B which
provides that a cause of action appertaining to or incident to an estate
“shall” be brought in the statutory probate court limits or restricts
the discretionary language with regard to the probate court’s ability to
transfer the case. The court held “that the intent of this language is
to direct parties with a cause of action appertaining to estates or
incident to an estate to bring such actions in statutory probate court
in the first instance rather than district court.” Id. at 414.
Moral: If an action appertaining to or incident to an estate which is
pending in a statutory probate court is brought in district court, the
person unhappy with the district court hearing the case should have the
district court abate the case under Probate Code § 5B because it was
brought in the wrong court, rather than relying on the probate court’s
permissive ability to transfer the case to itself.