in the Estate of John Clifford Montez

• Court: Court of Appeals of Texas
• Decided: June 12, 2013
• Docket: 05-13-00520-CV
• Status: Published

Opinion

DISMISS and Opinion Filed June 12, 2013.

S In The Court of Appeals Fifth District of Texas at Dallas

No. 05-13-00520-CV

IN RE: THE ESTATE OF JOHN CLIFFORD MONTEZ, DECEASED

On Appeal from the Probate Court No. 2 Dallas County, Texas Trial Court Cause No. PR-04-1091-2

MEMORANDUM OPINION Before Justices Lang, Myers, and Evans Opinion by Justice Myers In a jurisdictional letter dated April 23, 2013, the Court questioned its jurisdiction over

the appeal. Specifically, it appeared the order appellant was appealing was interlocutory. The

Court requested that appellant file a jurisdictional brief and gave appellee an opportunity to

respond. Appellant filed a jurisdictional brief but appellee did not respond.

Appellant is appealing the trial court’s order requiring genetic testing in an heirship

proceeding. Except in certain circumstances, this Court has jurisdiction only over final

judgments. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A final judgment

is one that disposes of all pending parties and claims. Id.

In the context of a probate case, if there is an express statute declaring a phase of the

probate proceeding to be final and appealable, that statute controls. See Crowson v. Wakeham,

897 S.W.2d 779, 883 (Tex. 1995). The probate code does provide for a complete heirship

judgment. Section 54 of the probate code requires that a judgment in a proceeding to determine heirship declare the names and places of residence of the decedent’s heirs and their respective

shares and interests in the real and personal property of the decedent. See TEX. PROB. CODE

ANN. § 54 (West 2003). Such a judgment is final and may be appealed within the same time

limits and in the same manner as other judgments in probate matters. See TEX. PROB. CODE

ANN. § 55 (West 2003).

In a proceeding to determine heirship, a court may order genetic testing. See TEX. PROB.

CODE ANN. § 53A(a) (West Supp. 2012). On February 15, 2013, the probate court ordered

genetic testing of both appellant and another potential heir. It is this order that appellant appeals.

In her jurisdictional brief, appellant argues that this Court has jurisdiction pursuant to a federal

law and a federal rule of appellate procedure. Appellant cites to section 636(c)(3) of the United

States Code. This provision concerns appeals from federal magistrate judges to United States

courts of appeals. See 28 U.S.C.A. § 636(c)(3) (West Supp. 2012). Rule 4(a)(3) of the federal

rules of appellate procedure concerns multiple appeals from a judgment of a magistrate judge in

a civil case. FED. R. APP. P. 4(a)(3). Neither of these provisions supports appellant’s argument.

The order appellant is appealing is part of the heirship proceeding but it does not finally

determine heirship. For this reason, it is an interlocutory order and not appealable. Because this

Court does not have jurisdiction, we dismiss the appeal. See TEX. R. APP. P. 42.3(a).

/Lana Myers/ LANA MYERS 130520F.P05 JUSTICE

–2– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN RE: THE ESTATE OF JOHN On Appeal from the Probate Court No. 2, CLIFFORD MONTEZ, DECEASED Dallas County, Texas. Trial Court Cause No. PR-04-1091-2. No. 05-13-00520-CV Opinion delivered by Justice Myers. Justices Lang and Evans, participating.

In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

It is ORDERED that appellee, Victoria E. Montez, recover her costs of this appeal from appellant, Delores Trimble.

Judgment entered this 12th day of June, 2013.

/Lana Myers/ LANA MYERS JUSTICE

–3–