in the Estate of Jessie Gray

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-13-00271-CV ________________________

IN THE ESTATE OF JESSIE GRAY, DECEASED

On Appeal from the County Court Bailey County, Texas Trial Court No. 2556; Honorable Sherri Harrison, Presiding

June 10, 2014

CONCURRING OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

I concur with the opinion of the majority. I write separately, however, to express

my opinion that, while the trial court’s judgment, entitled Order for Delivery of

Homestead Property to Surviving Spouse might be construed as determining that

Appellee, Celia Gray, has a life-time possessory interest in the property the subject of

this dispute, this Court’s opinion should not be read as reaching that conclusion.

As the majority correctly states, we are faced with a situation where the record

was not sufficiently developed to allow this Court, or the trial court, to determine whether

the disputed property was “among the decedent’s effects” and therefore, subject to an order of delivery pursuant to section 272, or an allowance in lieu of exempt property

pursuant to section 273 of the Texas Probate Code. See TEX. PROB. CODE ANN. §§ 272,

273 (West Supp. 2013).1 However, as stated by the majority, in the absence of

evidence to the contrary, we must assume the record supports the trial court’s implied

decision that the property was a part of the decedent’s estate. Accordingly, I believe the

opinion of this Court should be construed no further than saying the trial court did not err

in ordering that Celia Gray holds a possessory homestead interest in whatever property

interest the Estate of Jessie Gray might have owned upon his death.

Patrick A. Pirtle Justice

1 In 2009, the Texas Legislature repealed the Texas Probate Code with an effective date of January 1, 2014, and recodified the statutes as the Estates Code. See Act of May 26, 2009, 81st Leg., R.S., ch. 680, §§ 1, 10(a), 2009 Tex. Gen. Laws 1512, 1731-32. Section 272 is now section 353.052, and section 273 is now section 353.053. See TEXAS ESTATES CODE ANN. §§ 353.052 & 353.053 (West Pamphlet 2013).