In re John G. Kenedy Memorial Foundation, 159 S.W.3d 133 (Tex. App.—Corpus Christi-Edinburg 2004), mand. granted, 315 S.W.3d 519 (Tex. 2010).
The underlying estates involved in this case have a long history in
Texas law arising out of the administration of the estates of several
members of the wealthy Kenedy family, that is, John, Jr., his wife,
Elena, and his sister, Sarita, by a person claiming to be John, Jr.’s
biological child. This alleged child filed numerous bills of review
seeking to reopen the Kenedy estates which have been closed for many
decades. A statutory probate judge who was assigned to the County Court
of Kenedy County transferred to his court under Probate Code § 5B the
alleged child’s bills of review pending in other courts. The appellate
court determined that the judge had no authority to issue these transfer
orders.
The court began its analysis by explaining that a bill of review is a
direct attack on a prior judgment, must be brought in the court
rendering the judgment, and only that court has jurisdiction over the
bill. However, once the bill of review is filed in the proper court, it
may then be transferred to another court if a procedure to do so exists
and is properly followed.
The court then examined Probate Code § 5B with great care and determined
that it provided no authority for the statutory probate court judge to
effectuate a transfer. The court explained that the transfer power
granted in § 5B only applies if an estate is currently pending in the
probate court. In this case, the decedents’ estates had been closed for
many years. Thus, § 5B did not provide the judge with authority to make
the transfer. The court rejected the argument that the filing of a bill
of review regarding an estate closed for decades causes the estate to
regain a pending status.
Note: Justice Castillo filed a lengthy dissent arguing that the
existence of a contested probate matter was sufficient to trigger § 5B’s
transfer power despite the statute’s requirement of a “pending” estate.
Moral: The ability of a probate court to effectuate a transfer under
Probate Code § 5B exists only if an estate is still pending in the
probate court.
See also: State v. Fernandez, 159 S.W.3d 678
(Tex. App.—Corpus Christi-Edinburg 2004, no pet. h.).