In the Estate of Claralyn Brooks Trickett, Deceased Appeal from Probate Court No 1 of Bexar County (memorandum opinion)

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NUMBER 13-19-00154-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG IN THE ESTATE OF CLARALYN BROOKS TRICKETT, DECEASED On appeal from the Probate Court No. 1 of Bexar County, Texas. MEMORANDUM OPINION Before Chief Justice Contreras and Justices Longoria and Hinojosa Memorandum Opinion by Justice Longoria Appellees Marcelle Winifred Swearingen (a/k/a Marcelle Brannen) and Nancy Lee Woodmansee initiated an heirship proceeding on behalf of the blood relatives of the late Claralyn Brooks Trickett to establish their status as Claralyn’s sole heirs and rightful owners of an undivided 1/32 non-participating royalty interest in lands located in Bexar and La Salle Counties in Texas. Appellants Richard Howard Bowerman, Steven Robert Bowerman, Esther Michele Daugherty, and Bruce E. White opposed the action and claimed an interest in the estate through Robert Bowerman, whom they claimed was married to Claralyn before she passed away.1 A jury found that Robert Bowerman’s marriage to Claralyn was void, and the probate court entered a final judgment in favor of appellees, declaring that appellants had no claim to the royalty interests. Appellants raise eleven issues on appeal: (1) the appellees’ claim is barred by the statute of limitations; (2) appellees waived their heirship claim by not presenting it to the jury; (3) the trial court improperly received and considered additional evidence after the jury had reached its verdict; (4) the trial court did not have jurisdiction to declare a marriage void; (5) the trial court erred by failing to enter judgment on the verdict; (6) the trial court failed to properly instruct the jury on the presumption of validity of the most recent marriage; (7) the trial court failed to instruct the jury concerning the presumption that a foreign government complied with all formalities when it issued a marriage certificate; (8) there was insufficient evidence to support a finding that no divorce occurred; (9) the trial court improperly excluded portions of an affidavit from Jane Bowerman; (10) the trial court failed to exclude improperly disclosed witnesses and evidence; and (11) the relief sought by appellees is barred by laches. Because we conclude that appellees’ claim is barred by the statute of limitations, we reverse and render. I. BACKGROUND2 1 Richard Howard Bowerman, Steven Robert Bowerman, and Esther Michele Daugherty are children of Robert Bowerman. Bruce E. White was Esther’s attorney in the will contest she filed against Richard after Richard reneged on his promise not to probate Robert’s holographic will—which excluded Esther and Steven. As payment, Bruce took a quarter of Esther’s interest in Robert’s estate. 2 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. Because this is a transfer case, we apply the precedent of the San Antonio Court of Appeals to the extent it differs from our own. See TEX. R. APP. P. 41.3. 2 Robert Bowerman and Claralyn Trickett were married in Tijuana, Mexico on August 30, 1963. Several months later, Claralyn turned forty. Under the terms of Claralyn’s mother’s will, Claralyn inherited several mineral interests in Bexar and La Salle Counties; these interests remained in a trust until Claralyn turned forty. Claralyn’s cousin, P.H. Swearingen, served as the executor of Claralyn’s mother’s estate. The affidavit filed by P.H. in the Bexar County deed records on December 18, 1963 stated: Clara May Brooks Trickett died on January 14, 1951 . . . her daughter, Claralyn Brooks Trickett (now Claralyn T. Bowerman) was [the] sole residuary beneficiary under the will . . . . That said beneficiary is now 40 years of age and said Trust has terminated and the assets of said Estate delivered to said beneficiary, who is Mrs. Claralyn T. Bowerman . . . and title, by virtue of said Will, is now vested in the said Claralyn T. Bowerman. In April of 1964, P.H. filed three deeds to convey property from Clara’s testamentary trust to Claralyn. These were filed in Bexar and La Salle Counties and they referred to Claralyn as “Claralyn T. Bowerman.” In November of 1964, P.H. filed an Affidavit of Independent Executor Closing Estate in Bexar County, declaring: “pursuant to the provision of said Will, all of the residuary assets of said estate have been delivered to the residuary beneficiary, Claralyn Brooks Trickett Bowerman, wife of Robert Bowerman, and all claims have been released.” Over the next nine years, Robert and Claralyn lived together and bought and sold property together in California as husband and wife. At no point did they live in Texas. Claralyn became very ill and eventually died on December 24, 1972. Her relatives in San Antonio paid for her funeral and burial in San Antonio; they also paid for Robert’s travel expenses to the burial. Claralyn was buried under a tombstone labeled “Claralyn Trickett Bowerman.” Her death certificate identified her as “Claralyn Trickett Bowerman” and identified her spouse as “Robert.” 3 Between October 2009 and February 2011, several memoranda of oil and gas leases and distribution deeds were recorded in La Salle County, conveying title to the royalty interests in question from Robert Bowerman to appellants. Robert Bowerman passed away on January 21, 2010. During Robert Bowerman’s probate proceedings, appellants filed several deeds and affidavits in Bexar and La Salle Counties claiming ownership to the royalty interests through their relationship to Robert Bowerman. On July 1, 2013, appellees filed a quiet title action in Bexar County alleging that appellants’ affidavits and deeds were “clouding title” to appellees’ royalty interests.3 Appellants, however, requested that the quiet title action be abated until there was an official declaration of Claralyn’s heirs. The trial court abated the case. On March 25, 2015, appellees filed an application to determine heirship in La Salle County. By a joint request by both parties, the case was transferred to a probate court in Bexar County. Per appellees’ amended petition, the only relief requested was that the Court declare the identity of Decedent’s heirs and the respective shares and interest of each in the Decedent’s estate; award them their costs and reasonable and necessary attorney’s fees as requested herein; and the Court determine that no necessity exists for an administration of Decedent’s estate. Marcelle also filed a petition to recover money belonging to the estate to recoup the royalty proceeds that appellants wrongfully collected. However, upon appellants’ request, this suit was also abated until the completion of the heirship proceeding. In the heirship proceeding in the probate court, appellees argued that they were the rightful heirs to Claralyn’s estate because Robert never divorced his prior wife, Jane Bowerman, before marrying Claralyn in Mexico, making Robert and Claralyn’s marriage 3 Appellees Marcelle Winifred Swearingen and Nancy Lee Woodmansee are both maternal second cousins of Claralyn Trickett. 4 void. Robert first married Sarah Louise Embry in 1941. Robert and Sarah were divorced in 1945. Robert married Jane in 1946. Jane and Robert lived in an apartment in San Mateo County, California. Richard and Steven are the two children of Robert and Jane. Robert and Jane announced sometime in the spring of 1963 that they were going to get a divorce, and Robert moved out shortly thereafter. Robert married Claralyn less than a year later, in the fall of 1963. However, appellees argued that the San Mateo Court Clerk’s office contains no record of Robert and Jane’s divorce. Appellees further argued that not a single county in California or Nevada contains a record of their divorce.4 On the other hand, appellants asserted that their Mexican marriage certificate, which is in Spanish, plainly states that the official performing the marriage ceremony was presented with the divorce decrees from their previous marriages. Appellants also offered an affidavit from Jane, which averred that she and Robert were divorced before Robert married Claralyn. This affidavit was executed in 2011, one year before Jane passed away. Appellants filed a Rule 91a motion to dismiss, and later, a motion for summary judgment, both arguing that the probate court lacked jurisdiction to declare Robert Bowerman and Claralyn Trickett’s marriage as void and that the statute of limitations had expired on the appellees’ heirship claim. Both motions were denied. In a docket control order issued on January 8, 2018, the trial court set the case for jury trial to begin on May 21, 2018. The order mentioned that the setting was for “final trial on the merits disposing of all pending issues to date of trial on the heirship determination in this cause.” Trial began on May 21, 2018. Appellees did not submit a question on 4 Below, appellants had argued, as one possible explanation as to why the divorce record could not be located in California, that perhaps the divorce record was in Nevada. This argument was based off of the testimony of an expert who asserted that during the time frame in question, “[i]f you wanted a quickie divorce, you went to Nevada.” 5 heirship. Appellants objected to the exclusion of a question on heirship, but the trial court submitted the case to the jury solely on the question of whether Robert and Claralyn’s marriage was void. The jury returned a unanimous verdict finding that the marriage was void. Six months later, the trial court held a hearing to determine the identity of Claralyn’s heirs and their respective shares of her estate. After the trial court received the testimony and report of the attorney ad litem, the court entered its judgment reflecting all of Claralyn’s heirs and their respective shares of her estate. This appeal followed. II. STATUTE OF LIMITATIONS In their first issue, appellants argue that the relief sought by appellees is barred by the statute of limitations. A. Standard of Review & Applicable Law “Whether a cause of action is barred by limitations is a question of law that appellate courts review de novo.” Abrams v. Salinas, 467 S.W.3d 606, 609 (Tex. App.— San Antonio 2015, no pet.). Section 202.0025 of the Texas Estates Code provides: “Notwithstanding Section 16.051, Civil Practice and Remedies Code, a proceeding to declare heirship of a decedent may be brought at any time after the decedent’s death.” TEX. EST. CODE ANN. § 202.0025. However, § 202.0025 applies only to the estate of decedents who die on or after January 1, 2014. Act of May 27, 2013, 83rd Leg., R.S., ch. 1136, § 62(f), 2013 Tex. Gen. Laws 2737, 2754.5 5 In enacting § 202.0025, the Texas Legislature made two observations. First, it stated that the changes made by § 202.0025 6 Section 16.051 of the Texas Civil Practice and Remedies Code proclaims that “[e]very action for which there is no express limitations period, except an action for the recovery of real property, must be brought not later than four years after the day the cause of action accrues.” TEX. CIV. PRAC. & REM. CODE ANN. § 16.051. The Texas Supreme Court has acknowledged that “[w]hen an heirship claim is brought after an administration of the decedent’s estate or a conveyance of the decedent’s property to a third party, courts have applied the four-year residual limitations period of Texas Practice and Remedies Code section 16.051.” Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 509 (Tex. 2010); see John G. & Marie Stella Kenedy Mem’l Found. v. Fernandez, 315 S.W.3d 515, 518 (Tex. 2010) (making the same observation). “The language of section 16.051 has been a part of Texas law since 1879, when it was included as part of the first revision of the civil statutes following the adoption of the Texas Constitution of 1876.” York v. Flowers, 872 S.W.2d 13, 16 (Tex. App.—San Antonio 1994, writ denied). A limitations period begins to run when a cause of action accrues. See Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 216 (Tex. 2011) (op. on reh’g). When a cause of action begins to accrue is a question of law. See Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 274–75 (Tex. 2004) Generally, a cause of action accrues “when a apply only to the estate of a decedent who dies on or after the effective date of this Act. The estate of a decedent who dies before the effective date of this Act is governed by the law in effect on the date of the decedent’s death, and the former law is continued in effect for that purpose. Act of May 27, 2013, 83rd Leg., R.S., ch. 1136, § 62(f), 2013 Tex. Gen. Laws 2737, 2754. The Texas Legislature also noted that § 202.0025 “is intended to clarify current law in regard to the commencement of proceedings to declare heirship, and an inference may not be made regarding the statute of limitations for a proceeding to declare heirship filed before the effective date [January 1, 2014] of this Act.” Id. Act of May 27, 2013, 83rd Leg., R.S., ch. 1136, § 62(g), 2013 Tex. Gen. Laws 2737, 2754; see Dickson v. Simpson, 807 S.W.2d 726, 727 (Tex. 1991) (“The statutes in force at the time of death govern the disposition of the decedent’s estate”). 7 wrongful act causes some legal injury, even if the fact is not discovered until later, and even if all resulting damages have not yet occurred.” Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997); see, e.g., Agar Corp. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 142 (Tex. 2019) (observing that the “cause of action for the underlying tort typically accrues as soon as the tort causes those damages”); Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006) (per curiam) (“Normally a cause of action accrues when a wrongful act causes some legal injury.”); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990) (holding that a cause of action generally accrues “at the time when facts come into existence which authorize a claimant to seek a judicial remedy”); Goggin v. Grimes, 969 S.W.2d 135, 137 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (“If the defendant’s conduct results in an invasion of the plaintiff’s legally protected interest, so that he may obtain an immediate remedy in court, his right of action ‘accrues’ with the invasion, provided some legally cognizable injury, however slight, has resulted from the invasion or would necessarily do so.”). B. Analysis Appellants contend that appellees’ case is governed by the general four-year statute of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.051. Additionally, appellants contend that appellees’ cause of action began to accrue in 1972 once Claralyn died. Appellees argue that under both current and pre-existing law, they are not subject to any statute of limitations and they can file an heirship proceeding at any point in time after Claralyn’s death. See TEX. EST. CODE ANN. § 202.0025. Alternatively, appellees argue that even if they were subject to a limitations period, their cause of action could not have accrued until at least after 2010. We agree with appellants. 8 1. Applicability of the Four-Year Statute of Limitations Appellees quote Smith v. Little for the proposition that “[t]he probate code does not provide an express limitations period for . . . action[s] to determine heirship.” Smith v. Little, 903 S.W.2d 780, 787–88 (Tex. App.—Dallas 1995, writ granted), rev’d in part on other grounds, 943 S.W.2d 414 (Tex. 1997).6 Thus, appellees claim that they could file an heirship proceeding at any point in time, without being subject to any statute of limitations. However, as we pointed out above, and as the very next sentence in Smith states: “[w]hen there is no specifically applicable limitations period, the statute of limitations is four years.” Smith, 903 S.W.2d at 787–88; see TEX. CIV. PRAC. & REM. CODE ANN. § 16.051. Appellees also argue that the residual four-year statute should not apply in this case because § 202.0025 of the Texas Estates Code now allows an heirship proceeding to be filed at any point in time after the person’s death. See TEX. EST. CODE ANN. § 202.0025. However, that statute does not apply to this case because both Claralyn and Robert died before January 1, 2014. See Act of May 27, 2013, 83rd Leg., R.S., ch. 1136, § 62(f), 2013 Tex. Gen. Laws 2737, 2754. Instead, we must apply the statutes in force at the time of death. See Dickson v. Simpson, 807 S.W.2d 726, 727 (Tex. 1991). Prior to the enactment of § 202.0025, courts applied the residual four-year limitation period of § 16.051 to heirship proceedings. See Frost Nat’l Bank, 315 S.W.3d at 509; John G. & Marie Stella Kenedy Mem’l Found., 315 S.W.3d at 518; see also York, 872 S.W.2d at 16. 6 We note that the Texas Probate Code has been repealed and recodified in the Texas Estates Code effective January 1, 2014. See Estate of Ripley, No. 04-18-00968-CV, 2019 WL 4179128, at *3 (Tex. App.—San Antonio Sept. 4, 2019, pet. denied). 9 Appellees additionally contend that the residual four-year limitation period is inapplicable because this is an action for the “recovery of real property.” See TEX. CIV. PRAC. & REM. CODE ANN. § 16.051. Appellants argue that the present case is a pure heirship determination, not an action to recover real property. Appellees rely on York, 872 S.W.2d at 14, whereas appellants rely on Cantu v. Sapenter, 937 S.W.2d 550, 553 (Tex. App.—San Antonio 1996, writ denied), both of which are from the San Antonio Court of Appeals, the transferor court in this case. In York, an adult child sued a grantee under a deed to recover certain real property—a 41.5-acre tract of land. See York, 872 S.W.2d at 14. She sought to establish that she was the illegitimate child of the decedent and that she was entitled to inherit his interest in the tract. Id. The court in York concluded: “York brought this suit to establish her challenged interest in the 41.5[-]acre tract. That she also needed to establish her prerequisite heirship status does not detract from or change the nature of the suit from one for the recovery of real property.” Id. at 16. Thus, the court in York held that the residual four-year limitation did not apply. See id. In Cantu, the decedent’s widow conveyed a tract of land, previously owned by her husband, to a third party in 1986 for valuable consideration. See Cantu, 937 S.W.2d at 551. In 1991 and 1993, the decedent’s illegitimate children sought to establish their rights to inherit the decedent’s estate, including the land that the widow deeded to the third party. The Cantu court distinguished York, finding that “York was a suit brought in the district court to determine an interest in real property. . . . The instant case is purely a probate action to establish heirship and the real property issue is not before this court.” Id. at 552. Accordingly, the Cantu court held that the four-year limitation applied. See id. 10 We find the present case most analogous to Cantu. Appellees argue that the ultimate goal of their heirship proceeding is to declare the rightful owners of the royalty interests in Bexar and La Salle Counties. And because it is well-settled that a royalty interest in an oil and gas lease constitutes an interest in real property, see Kelly Oil Co. v. Svetlik, 975 S.W.2d 762, 764 (Tex. App.—Corpus Christi–Edinburg 1998, pet. denied), appellees argue that their case is one for the recovery of real property. However, like in Cantu, the real property issue is not presently before this Court. See Cantu, 937 S.W.2d at 551. The appellees’ only requested relief is to have the court “declare the identity of Decedent’s heirs and the respective shares and interest of each in the Decedent’s estate; award them their costs and reasonable and necessary attorney’s fees as requested herein; and the Court determine that no necessity exists for an administration of Decedent’s estate.” When the trial court set the case for jury trial, it stated that this would be a “final trial on the merits disposing of all pending issues to date of trial on the heirship determination in this cause” (emphasis added). The trial court also instructed the parties that “[i]n an heirship we do not determine what property is at stake.” Thus, the present suit more closely resembles Cantu in that it is purely a probate action to establish heirship. See id. Appellees additionally rely on Jeter v. McGraw, 79 S.W.3d 211, 213 (Tex. App.— Beaumont 2002, pet. denied) to argue that this is a suit for the recovery of real property. In Jeter, the Beaumont Court of Appeals observed that “[t]he nature and the purpose of the suits in Cantu and York appear to be the distinguishing factors between the two cases.” Id. at 216. When Jeter filed suit against McGraw, his claims included: (1) a trespass to try title action; (2) a request for a declaratory judgment (i) interpreting the deeds and records pertaining to the property, (ii) setting out 11 the heirship of Maine Jeter, (iii) determining Leonard Jeter’s percentage ownership of the property and the equitable interests of the parties, and (3) a request for a partition of the property. Id. at 213. Because Jeter’s claims included a trespass to try title action, the court concluded that the suit fell within § 16.051’s exception concerning actions for the recovery of real property and accordingly that the four-year limitation did not apply. Id. at 215. However, appellees in the present suit have not filed a trespass to try title action against appellants; instead, they filed a quiet title action. In a trespass to try title action, the plaintiff “is required to prevail on the superiority of his own title, not on the weakness of the defendant’s title.” Vernon v. Perrien, 390 S.W.3d 47, 60 (Tex. App.—El Paso 2012, pet. denied). By contrast, in a quiet title suit, the plaintiff relies on the invalidity of the defendant’s claim to the property. Id. at 61. Additionally, a “trespass-to-try-title action is statutory and accords a legal remedy, while a suit to remove cloud or to quiet title accords an equitable remedy.” Id. In other words, Jeter involved a suit for the recovery of real property because it involved a trespass to try title action in which the plaintiff sought to establish superior title to real property. See Jeter, 79 S.W.3d at 213. In contrast, appellants in the present suit filed a quiet title action, meaning that instead of seeking to establish superior title, they sought to set aside the deeds by which appellants claim ownership to the property in question. Appellees do not assert that the deeds are void; if anything, they would be voidable. See Garcia v. Garza, 311 S.W.3d 28, 44 (Tex. App.—San Antonio 2010, pet. denied) (finding that deeds obtained by “fraud, fraudulent misrepresentation, undue influence, or mutual mistake are not void, but voidable”). Thus, because appellees are seeking to set aside allegedly voidable deeds, the four-year limitation controls. See Poag 12 v. Flories, 317 S.W.3d 820, 825 (Tex. App.—Fort Worth 2010, pet. denied) (“An equitable suit to quiet title is not subject to limitations if a deed is void. If a deed is voidable, however, then the four-year statute of limitations controls.”); Estate of Matejek, 928 S.W.2d 742, 744 (Tex. App.—Corpus Christi–Edinburg 1996, writ denied) (holding that a suit that seeks to set aside a deed must be brought within four years); McMeens v. Pease, 878 S.W.2d 185, 190 (Tex. App.—Corpus Christi–Edinburg 1994, writ denied) (holding that a suit to set aside a voidable deed must be brought within four years because it “is not a suit to recover real estate”); Neill v. Pure Oil Co., 101 S.W.2d 402, 404 (Tex. App.—Dallas 1937, writ ref’d) (holding that in a suit that seeks to set aside a voidable deed, “the action brought thereon is not, strictly speaking, a suit to recover real estate”);. Because there is no specifically applicable limitations statute and because this is not a suit for the recovery of real property, the residual four-year limitations statute applies. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.051; Poag, 317 S.W.3d at 825. However, we still must determine when the limitations period began to run. See Cantu, 937 S.W.2d at 553. 2. Accrual of the Cause of Action Appellees argue that even if they are subject to a statute of limitations, the limitations period could not have begun until 2010, when the appellants first made an “adverse claim” against the appellees’ property interest. The appellees further argue that the quiet title action they filed in 2013 tolled the statute of limitations. Thus, according to appellees, their claim was timely filed. However, appellants argue that appellees’ cause of action began to accrue in 1972 when Claralyn died. The appellants claim that the appellees were aware that Claralyn was married and should have known that when she 13 died, her property would vest in her putative spouse. See TEX. EST. CODE ANN. § 101.001(b). According to appellants, Claralyn’s property vesting in her spouse was the “adverse claim” that triggered the accrual of the statute of limitations. We agree with appellants. We find Cantu’s analysis informative. See Cantu, 937 S.W.2d at 553. In Cantu, the court observed that the appellees were aware of “their lineage, were appraised of Oliver Cantu’s death, and knew of Oliver’s property.” Id. The court concluded that when the widow deeded the contested property to a third party, even though it was not a formal administration of her estate, “it created an interest adverse to that of appellees. The recorded deed gave appellees at least constructive knowledge that any interest they had in the property was at stake.” Id. Thus, the recording of the deed was when the limitations began to accrue. See id. In the present case, appellees were likewise aware of their lineage and were apprised of Claralyn’s death when it happened. Even though appellees claim they were not aware the royalty interest even existed until 2010, they were at least constructively aware of Claralyn’s royalty interest as early as 1964 when the deeds conveyed property, including the royalty interest, from Clara’s testamentary trust to Claralyn. See id.; see also Cosgrove v. Cade, 468 S.W.3d 32, 34 (Tex. 2015) (observing that a deed “provides all persons, including the grantor, with notice of the deed’s contents” and that “public records can constitute constructive notice and therefore create an “irrebuttable presumption of actual knowledge”). These deeds conveying property identified Claralyn as Robert’s spouse. Also, because of their marriage certificate, Robert and Claralyn’s marriage was presumptively valid. See In re Estate of Loveless, 64 S.W.3d 564, 573–74 (Tex. App.— 14 Texarkana 2001, no pet.). And when a person dies intestate in Texas, the estate of that person vests immediately in the person’s heirs at law. See TEX. EST. CODE ANN. § 101.001(b). Therefore, any alleged legal injury of which the appellees now complain occurred in 1972 when Claralyn passed away and Claralyn’s property vested in Robert. See id. The deeds gave at least constructive knowledge that any interest appellees possessed in the property was at stake. See Cantu, 937 S.W.2d at 553. However, appellees did not file suit until March 25, 2015, more than forty-two years after her death. We therefore conclude that appellees’ claims are barred by the four-year statute of limitations. We sustain appellants’ first issue. Because appellants’ first issue is dispositive, we need not address appellants’ remaining issues. See TEX. R. APP. P. 47.1. III. CONCLUSION We reverse the trial court’s judgment and render judgment that appellees’ claims are barred by the statute of limitations. NORA L. LONGORIA Justice Delivered and filed the 14th day of May, 2020. 15