Estate of John David Harris

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-18-00414-CV ___________________________

ESTATE OF JOHN DAVID HARRIS, DECEASED

On Appeal from Probate Court No. 2 Tarrant County, Texas Trial Court No. 2011-PR00903-1-2

Before Birdwell, Bassel, and Womack, JJ. Per Curiam Memorandum Opinion MEMORANDUM OPINION

David Glen Harris, the petitioner in an ongoing proceeding to determine

heirship, attempts to appeal from the probate court’s order denying his motion to

vacate a September 28, 2018 order reinstating Monika Cooper as attorney ad litem for

unknown heirs. Harris initially filed the heirship proceeding in 2011, and the trial

court has not yet issued a final ruling.

We questioned our jurisdiction over the appeal because the trial court’s order

appears to be a nonappealable interlocutory order. Appellant responded that the order

re-appointing Cooper––the subject of appellant’s motion to vacate––is void because

the trial court signed it outside its plenary power; therefore, he contends that the trial

court’s ruling on his motion to vacate is appealable because he can challenge a void

order at any time.

We have jurisdiction only over final judgments that dispose of all parties and

issues in a case unless a statute authorizes review of a particular type of interlocutory

order. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). An exception

applies in certain probate proceedings when a statute provides that a particular type of

order is final and appealable, but in the absence of statutory authority, an order in a

probate proceeding is interlocutory and not subject to immediate appeal unless it

satisfies the final judgment rule. Estate of Harris, No. 02-17-00108-CV, 2017 WL

2590574, at *2 (Tex. App.––Fort Worth June 15, 2017, pet. denied) (mem. op.) (citing

De Ayala v. Mackie, 193 S.W.3d 575, 578–79 (Tex. 2006) (op. on reh’g)). 2 Although section 202.202 of the estates code provides that the judgment in a

proceeding to declare heirship is final, there has been no such judgment here, so the

trial court’s order is interlocutory. See Tex. Estates Code Ann. § 202.202; Crowson v.

Wakeham, 897 S.W.2d 779, 782–83 (Tex. 1995). For that reason, the trial court’s

plenary power has not yet run. See Tex. R. Civ. P. 329b(d); Alexander Dubose Jefferson &

Townsend LLP v. Chevron Phillips Chem. Co., 540 S.W.3d 577, 581 (Tex. 2018) (noting

that plenary power “generally only lasts for thirty days after final judgment”). And no

statute expressly authorizes an appeal from an order refusing to vacate a prior order

re-appointing an ad litem during an heirship proceeding.

Accordingly, we dismiss this appeal for want of jurisdiction. See Tex. R. App. P.

43.2(f).

Per Curiam

Delivered: February 28, 2019