Bill of Review
In re John G. Kenedy Memorial Foundation, 159 S.W.3d 133 (Tex. App.—Corpus Christi-Edinburg 2004, no pet. h.).
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.).