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In re Lewis, 185 S.W.3d 615 (Tex. App.—Waco 2006, mandamus denied).

Estate Administration

Transfer

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.

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