In re Terex Corp., 123 S.W.3d 673 (Tex. App.—El Paso 2003, orig. proceeding), mand. granted 159 S.W.3d 630 (Tex. 2005).
Click here for summary of Texas Supreme Court opinion summary.
District Court transferred a wrongful death case to Probate Court
under Probate Code § 5B and Civil Practice and Remedies Code § 15.007.
The appellate court reviewed prior cases and decided to follow the
majority view that § 5B is a jurisdictional statute and not a venue
provision. Accordingly, the court denied mandamus.
Moral: Proper venue for an action by or against a personal
representative for personal injury, death, or property damages is
determined under Civil Practice & Remedies Code § 15.007. Probate Code §
5B as amended in 2003 applicable only to actions filed on or after
September 1, 2003. This change may be a codification of the holding in
Reliant Energy, Inc. v. Gonzalez, 102 S.W.3d 868 (Tex. App.—Houston [1st
Dist.] 2003 pet. filed), which explained that § 15.007 would be rendered
meaningless if probate courts had the power to transfer these actions to
themselves. Because the amendment only discusses venue, however,
uncertainty still remains regarding jurisdiction. Whether the
application of the amendment would have changed the result in In re
Terex Corp. is unclear.