Estate Administration


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).


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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.