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Estate Administration

Court/Judge Assignment

    In re Denison, 145 S.W.3d 803 (Tex. App.—Eastland 2004, mandamus filed).

    Beneficiary requested an accounting under Probate Code § 149A in county court and requested the assignment of a statutory probate court judge to hear the case under Probate Code § 5(b).  The county court denied the motion.  Beneficiary then brought a mandamus proceeding.

    The appellate court denied the writ.  Probate Code § 5(b-1) provides that the county court must grant a motion for the assignment of a statutory probate court judge to hear a contested case unless the county court judge has already transferred the matter to the district court.  The county court judge had transferred the case to district court under Probate Code § 5(b) many years before Beneficiary requested the assignment of a statutory probate court judge.  Consequently, mandamus was not appropriate.

    Moral:  Once a county court transfers a contested case to a district court, it is too late to request the assignment of a statutory probate court judge to hear the case.

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