Fernandez v. Bustamante, 305 S.W.3d 333 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

Estate Administration


Venue Determination


The appellate court was faced with the issue of whether a venue determination in a probate proceeding is a final or an interlocutory order. The court began its analysis by examining the Probate Code and found that it contained no statute on point. Thus, the court applied the Crowson v. Wakeham, 897 S.W.2d 779 (Tex. 1995) standard which provides that “if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.” The court then pointed to Texas Civil Practice & Remedies Code § 15.064(a) and Rule 87 of the Texas Rules of Civil Procedure which provide that a venue determination in general is not a final judgment which is ripe for appeal. The court found no reason to deviate from the general rule that venue determinations are interlocutory. Accordingly, the court dismissed the appeal for want of jurisdiction.

Moral: A party unhappy with a venue determination will need to wait until the case is concluded to appeal.


Estate Administration




Applicant One filed applications for the appointment as a temporary administrator in County One and although granted, Applicant One never qualified because she failed to post bond. Applicant Two then filed an application in County Two. The appellate court determined that County One had jurisdiction to transfer venue to County Two. The court explained that the probate court in County One obtained jurisdiction when the administration was opened even though Applicant One did not pay the required bond. When venue is proper in more than one court, it is the court in which the application is first filed that has jurisdiction to the exclusion of the other courts under Probate Code § 8(a). A probate proceeding does not terminate because bond was not paid. Instead, the court has jurisdiction until the administration is closed.

Moral: Failure of a personal representative to qualify (take the oath and/or post the bond) does not deprive a court of jurisdiction over the administration.