IN RE: SAM T. HAHS--Appeal from County Court at Law No 1 of Cameron County

NUMBER 13-06-092-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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IN RE SAM T. HAHS, Relator.

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On Relator=s Petition for Writ of Mandamus

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MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Garza

Memorandum Opinion[1] Per Curiam

On March 3, 2006, relator, Sam T. Hahs, filed a petition for writ of mandamus with this Court in which he alleges that on February 3, 2006, respondent, the Honorable Janet Leal, Presiding Judge of the County Court at Law No. 1 of Cameron County, Texas, abused her discretion by denying relator=s motion to dismiss. Relator=s petition for writ of mandamus asks this Court to order the respondent to vacate her order dated February 3, 2006, and to issue an order granting relator=s motion to dismiss with costs taxed against real party in interest, Nancy Lee Childs Valliere.

On March 3, 2006, this Court issued an order requesting any response from the real party in interest to be filed in this Court on or before March 17, 2006. On March 17, 2006, real party in interest complied with the order and filed a response to the mandamus. On March 20, 2006, the relator filed a reply to the real party in interest=s response.

In addition to the petition for writ of mandamus, relator filed a motion for emergency relief on April 6, 2006, asking this Court to order a stay of the proceedings in the trial court. Real party in interest filed a response to the motion for emergency relief on April 7, 2006. That same day, the Court granted relator=s request for emergency relief and ordered all proceedings in cause no. 03-CPC-256-A stayed until further order of this Court.

We now address the merits of the petition for writ of mandamus. The last will and testament of James B. Childs was admitted to probate as a muniment of title on September 2, 2003. On February 26, 2004, a will contest was filed in the same court in the same cause number. Relator filed a motion to dismiss the will contest on the grounds that the trial court lacked jurisdiction. Relying on In re Estate of Kurtz, 54 S.W.3d 353 (Tex. App.BWaco 2001, no pet.), relator argued that because the court=s order admitting the will to probate became final on October 2, 2003, the trial court=s jurisdiction over the case terminated on that date. The trial court denied the motion to dismiss and this original proceeding ensued. Relator requests that we direct respondent to vacate her order denying dismissal of the case and issue an order granting relator=s motion to dismiss, or alternatively, that this Court dismiss the will contest case.

We deny relator=s requested relief. We note there is authority supporting the proposition that the will contest was correctly filed in the county court, even under the same cause number. First, an action to undo an incorrect former judgment must be brought in the court rendering the judgment or in a higher court. Garza v. Rodriguez, 18 S.W.3d 694, 699 (Tex. App.BSan Antonio 2000, pet. denied); Pursley v. Ussery, 937 S.W.2d 566, 568 (Tex. App.BSan Antonio 1996, no writ). That is because a court is not permitted to interfere with the final judgment of another court of equal jurisdiction. Garcia, 18 S.W.3d at 699; Pursley, 937 S.W.2d at 567.

Second, section 93 of the probate code permits an interested party to contest, by the institution of suit, a will admitted to probate. Crawford v. Williams, 797 S.W.2d 184, 186 (Tex. App.BCorpus Christi 1990, writ denied). A section 93 attack on a probate decree is a direct attack upon the order admitting the will to probate. Id.; Estate of Devitt, 758 S.W.2d 601, 606 (Tex. App.BAmarillo 1988, writ denied). Because a probate decree is voidable and subject to attack, a section 93 direct attack is part of the original probate proceeding. Crawford, 797 S.W.2d at 186; Devitt, 758 S.W.2d at 606.

Based on the foregoing, we conclude the trial court acted within its discretion in exercising jurisdiction over the will contest at issue.

The Court, having examined and fully considered relator=s petition for writ of mandamus and the response thereto, is of the opinion that relator has not shown himself entitled to the relief sought. Accordingly, we lift the stay which this Court previously granted and deny the petition for writ of mandamus. See Tex. R. App. P. 52.8.

PER CURIAM

Memorandum Opinion delivered and filed

this 2nd day of May, 2006.

[1] See Tex. R. App. P. 52.8(d) (AWhen denying relief, the court may hand down an opinion but is not required to do so.@); Tex. R. App. P. 47.4 (distinguishing opinions and memorandum opinions).