in the Estate of Martha Jane Valdez

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00854-CV

IN THE ESTATE OF MARTHA JANE VALDEZ, Deceased

From the Probate Court No. 1, Bexar County, Texas Trial Court No. 2008-PC-3026 The Honorable John D. Hutchinson, Judge Presiding

PER CURIAM

Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: March 26, 2014

DISMISSED FOR LACK OF JURISDICTION

On December 4, 2013, Jerry Valdez filed a notice of appeal stating that he intends to appeal

the trial court’s September 9, 2013 “Order Requiring Joinder of the Heirs of the Decedent As

Parties to This Cause.” The order provides that “in the event Jerry Valdez fails to join as parties

to this case the heirs of Martha Jane Valdez, his application for probate of her will shall be

dismissed.” The record before us, however, contains no order of dismissal. Because the order

requiring joinder of the heirs did not appear to be appealable, we ordered appellant to show cause

why this appeal should not be dismissed for lack of jurisdiction. After considering the response

filed by appellant, we nevertheless conclude that we lack jurisdiction over this appeal.

Generally, appeals may be taken only from final judgments. De Ayala v. Mackie, 193

S.W.3d 575, 578 (Tex. 2006). Probate proceedings are an exception to the “one final judgment” 04-13-00854-CV

rule. Id. In probate cases, “multiple judgments final for purposes of appeal can be rendered on

certain discrete issues.” Id. (citation omitted). However, not every interlocutory order in a probate

case is appealable. Id. In De Ayala, the Texas Supreme Court adopted the following test to

determine whether appellate jurisdiction exists over an order arising from a probate proceeding:

If there is an express statute, such as the one for the complete heirship judgment, declaring the phase of the probate proceedings to be final and appealable, that statute controls. Otherwise, if there is a proceeding of which the order in question may logically be considered a part, but one or more pleadings also part of that proceeding raise issues or parties not disposed of, then the probate order is interlocutory.

Id. (quoting Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995)). Thus, if there is no express

statute, a probate court order is final and appealable only if it disposes of all parties or issues in a

particular phase of the proceedings. De Ayala, 193 S.W.3d at 579. An order that does not end a

phase of the proceedings, but “sets the stage” for the resolution of all proceedings, is interlocutory.

Id.

Here, there is no relevant rule or statute that declares the type of order challenged in this

appeal to be final and appealable. Applying the De Ayala test, we conclude that the trial court’s

order, which threatens to dismiss appellant’s application for probate of Martha Jane Valdez’s will

if appellant does not join the heirs as parties, “is more like a prelude than a finale.” Id. at 578.

Thus, the order is interlocutory and not appealable. See id. at 579.

Because the trial court’s order is not final, we dismiss this appeal for lack of jurisdiction.

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