In re Lewis, 185 S.W.3d 615 (Tex. App.—Waco 2006, mandamus denied).
The judge of a constitutional county court in a county with no other
court exercising probate jurisdiction transferred the lawsuit to
district court. Executrix claims that the transfer was improper and that
a statutory probate court judge should be assigned to hear the case
because Executrix filed her request first. Probate Code § 5(b-1)
provides that once a party requests the assignment of a statutory
probate court judge, the county judge may not transfer the case to
district court. The other party admits that Executrix filed her request
first, but she did not pay the filing fee until after the transfer
motion was filed and signed.
The appellate court agreed with Executrix and conditionally granted a
writ of mandamus. The court explained that although Executrix did not
pay the filing fee until after the judge signed the transfer order, it
was nonetheless “conditionally” filed first and thus has priority
because once the clerk received the filing fee, Executrix’s motion was
deemed to have been properly filed before the transfer motion.
Note: A dissenting justice explained that the court should not have
granted mandamus because at the time the county judge signed the
transfer order, Executrix had not paid the filing fee and thus the
filing was not yet effective.
Moral: A person filing a pleading or other document should pay the
filing fee at the time of filing.