Cora Sue Sanchez, Individually and as Representative of the Estate of Anthony Tony Sanchez, Jennifer Pasowicz, and Julie Marie Sanchez v. Roberts Truck Center of Texas, LLC and Roberts Truck Center Holding Company, LLC

Opinion filed October 28, 2021

In The

Eleventh Court of Appeals
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No. 11-19-00392-CV
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CORA SUE SANCHEZ, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF ANTHONY TONY
SANCHEZ, DECEASED, JENNIFER PASOWICZ, AND JULIE
MARIE SANCHEZ, Appellants
V.
ROBERTS TRUCK CENTER OF TEXAS, LLC AND ROBERTS
TRUCK CENTER HOLDING COMPANY, LLC, Appellees

On Appeal from the County Court at Law
Ector County, Texas
Trial Court Cause No. 21791-14-A

MEMORANDUM OPINION
This is an appeal from a proceeding filed as a bill of review. Appellants
contend that the trial court erred by denying their bill of review where they sought
the dismissal of their original cause of action on the ground that the trial court never
had jurisdiction of their cause of action. Because we conclude that the trial court did
not have subject-matter jurisdiction over the plaintiffs’ original suit, its judgment
was void and should be vacated. We reverse and render.
Background and Procedural History
Appellants, Cora Sue Sanchez, individually and as representative of her late
husband, Anthony Sanchez, along with their daughters, Jennifer Pasowicz and Julie
Marie Sanchez, filed a wrongful death action in the Ector County Court at Law.
They alleged that the trial court had jurisdiction because their claim was a matter
incident to, or related to, probate. Appellees, Roberts Truck Center of Texas, LLC
and Roberts Truck Center Holding Company, LLC, filed a plea to the jurisdiction
alleging that the wrongful death personal injury matter exceeded the subject-matter
jurisdiction of the county court at law. The trial court denied the motion, ruling that
wrongful death claims were matters incident to probate and that the court had
subject-matter jurisdiction.
Appellees then filed a motion for summary judgment on the merits, which
the trial court granted. Appellants appealed the judgment on the merits to the
Eleventh Court of Appeals, but the case was transferred to the Seventh Court of
Appeals in Amarillo in a docket equalization order issued by the Texas Supreme
Court. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). The Seventh Court
of Appeals affirmed the trial court (Sanchez v. Roberts Truck Ctr. of Tex., LLC,
No. 07-17-00213-CV, 2018 WL 4907533 (Tex. App.—Amarillo Oct. 9, 2018, pet.
denied)), and Appellants petitioned the Supreme Court of Texas for review. The
petition to the Supreme Court was denied.
Over two years later, Appellants, filed a “bill of review” in the Ector County
Court at Law claiming, contrary to their original position, that the trial court had no
jurisdiction over their wrongful death or survival claims. Alleging that the former
judgment was void for want of jurisdiction, Appellants moved for summary
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judgment on their bill of review. Appellees also filed a motion for summary
judgment, arguing that the “bill of review” was not timely filed pursuant to the Texas
Estates Code. The trial court granted summary judgment for Appellees, and
Appellants filed this appeal.
On appeal, Appellants present one issue hinging on the lack of subject-matter
jurisdiction of the trial court. Because we conclude that the trial court did not have
subject-matter jurisdiction and that the wrongful death suit judgment issued by the
trial court is void and should be vacated, we reverse and render.
Standard of Review
The question of whether a court has subject-matter jurisdiction is a question
of law and is reviewed de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004). “Subject-matter jurisdiction, as granted by the
legislature, is essential to a court’s power to decide a case.” Ahmad v. State, 615
S.W.3d 496, 500 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (quoting City of
Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013)). Subject-matter jurisdiction
over a suit “cannot be conferred upon any court by consent or waiver” of the parties.
Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) (citing Fed.
Underwriters Exch. v. Pugh, 174 S.W.2d 598, 600 (Tex. 1943)). Though it cannot
be granted to a court by the parties, questions that arise regarding a court’s “subject-
matter jurisdiction can be raised at any time.” Id. (citing Alfonso v. Skadden, 251
S.W.3d 52, 55 (Tex. 2008) (per curiam)).
When a court that lacks subject-matter jurisdiction issues a judgment beyond
dismissal of the cause, the judgment is void. See PNS Stores, Inc. v. Rivera, 379
S.W.3d 267, 273 (Tex. 2012); Zarate v. Sun Operating Ltd., Inc., 40 S.W.3d 617,
621 (Tex. App.—San Antonio Feb. 7, 2001, pet. denied). Texas case law
distinguishes between judgments that are void and those that are voidable. Zarate,
40 S.W.3d at 621; see also PNS Stores, 379 S.W.3d at 272 (A “judgment rendered
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by a court without subject-matter jurisdiction is void, whereas a judgment rendered
by a court lacking personal jurisdiction over the parties might only be voidable.”
(citing McEwen v. Harrison, 345 S.W.2d 706, 710 (Tex. 1961))). Void judgments
may be “set aside by a collateral attack”; however, voidable judgments “must be
attacked by a valid direct attack.” Zarate, 40 S.W.3d at 621. A judgment is void if
it can be established that the “trial court lacked subject-matter jurisdiction over the
suit.” PNS Stores, 379 S.W.3d at 273; see also Zarate, 40 S.W.3d at 621 (citing
Glunz v. Hernandez, 908 S.W.2d 253, 255 (Tex. App.—San Antonio 1995, writ
denied)). A void judgment may be “attacked by a bill of review after a trial court’s
plenary power has expired,” and it can also be collaterally attacked. Zarate, 40
S.W.3d at 620 (referencing Glunz, 908 S.W.2d at 255).
Here, Appellants’ so-called “bill of review” is nothing more than a collateral
attack on the trial court’s subject-matter jurisdiction. A collateral attack is any
proceeding that does not meet all the requirements of a valid direct attack and that is
brought to avoid the effect of a judgment. See Glunz, 908 S.W.2d at 255. There is
no set procedure for a collateral attack, nor is there a statute of limitations. Davis v.
Boone, 786 S.W.2d 85, 87 n.3 (Tex. App.—San Antonio 1990, no writ). “Collateral
attacks may only be used to set aside a judgment which is void, or which involved
fundamental error.” Zarate, 40 S.W.3d at 621 (citing Glunz, 908 S.W.2d at 255).
Fundamental error for this purpose means cases where “the record shows the court
lacked jurisdiction.” Glunz, 908 S.W.2d at 255 (citing Pirtle v. Gregory, 629 S.W.2d
919, 920 (Tex. 1982)).
Analysis
“Texas probate jurisdiction is, to say the least, somewhat complex.”
Palmer v. Coble Wall Tr. Co., 851 S.W.2d 178, 180 n.3 (Tex. 1992). The legislature
has given statutory probate courts “concurrent jurisdiction with district courts over
survival and wrongful death claims,” but has “not given such jurisdiction to statutory
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county courts.” Saari v. Key Energy Servs., Inc., No. 11-17-00012-CV, 2018 WL
2973338, at *2 (Tex. App.—Eastland June 7, 2018, pet. denied) (mem. op.) (citing
Dowell v. Quiroz, 462 S.W.3d 578, 583−85 (Tex. App.—Corpus Christi-Edinburg
2015, no pet.)); see TEX. GOV’T CODE ANN. § 25.003(d), (f) (West Supp. 2020).
Ector County does not have a statutory probate court; therefore, the county
court at law exercises original probate jurisdiction. TEX. EST. CODE ANN. § 32.002
(West 2020). Whether or not the Ector County Court at Law sitting in probate has
subject-matter jurisdiction in a wrongful death action brought incident to a probate
action has been answered by this court in Saari. See Saari, 2018 WL 2973338. In
a county without a statutory probate court, but where there is a county court at law
exercising original probate jurisdiction, a matter related to a probate proceeding
includes “a claim brought by a personal representative on behalf of an estate.” EST.
§ 31.002(a)(3), (b)(1) (emphasis added). Under the Estates Code, “claims” include
“liabilities of a decedent that survive the decedent’s death, including taxes”; certain
expenses; and “debts due such estates.” Id. § 22.005.
In Dowell, the court outlined the difference in jurisdiction given to statutory
probate courts and that of statutory county courts. Dowell, 462 S.W.3d at 583−85;
see GOV’T § 25.003(f). “[U]nlike a statutory probate court, which has jurisdiction
over ‘any cause of action in which a personal representative of an estate pending in
the statutory probate court is a party in the representative’s capacity as personal
representative,’ jurisdiction of the Ector County Court at Law sitting in probate is
limited to those [claims] expressly enumerated in the Estates Code.” Saari, 2018
WL 2973338, at *2 (quoting EST. § 31.002(c)(2)) (comparing EST. § 31.002(b) and
GOV’T § 25.003(f), with EST. § 31.002(c)). The Estates Code and the legislature
expressly distinguish between a “statutory probate court” and statutory county courts
or county courts at law sitting in probate. Id.

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 In Saari we also followed the “controlling issue test” as outlined in Dowell.
Id. at *3. The Texas Supreme Court has held that the “controlling issue in wrongful
death and survival actions is not the settlement, partition, and distribution of the
estate.” Dowell, 462 S.W.3d at 583 (quoting Palmer, 851 S.W.2d at 181).
Therefore, “a county court at law sitting in probate does not have probate jurisdiction
over wrongful death and survival actions as a ‘claim’ brought by the personal
representative.” Saari, 2018 WL 2973338, at *3.
Because the Ector County Court at Law does not have subject-matter
jurisdiction over wrongful death actions as a matter related to probate, any rulings,
orders or judgments rendered regarding wrongful death claims are void. 1 Appellees
and Appellants disagree regarding the statute of limitations in this matter and
regarding whether limitations has passed or not. We need not decide that matter, as
judgments which are void may always be attacked directly or collaterally. Here,
because the judgment is void, a collateral attack is appropriate and the question of
whether—or which—statute of limitations applies is inconsequential in our analysis.
Furthermore, we note that, even though Appellants were to blame for filing their
wrongful death action in the county court at law, Appellants are not barred by the
doctrines of waiver, judicial admission, or estoppel (i.e., invited error) because “such
doctrines cannot create subject-matter jurisdiction where it does not otherwise
exist.” In re Crawford & Co., 458 S.W.3d 920, 928 n.7 (Tex. 2015). Consequently,
we hold that the judgment attacked by Appellants is void and should be vacated. We
sustain Appellants’ sole issue on appeal.

1
The question of jurisdiction was not raised to the Seventh Court of Appeals in the original appeal.
However, the trial court did not have subject-matter jurisdiction in the original suit, and therefore the trial
court’s original rulings therein are void.

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 This Court’s Ruling
This court cannot confer subject-matter jurisdiction where the legislature has
not granted it, and we conclude that the trial court’s May 2, 2017 judgment incident
to the wrongful death suit filed against Appellees in the probate matter is void for
lack of subject-matter jurisdiction. Accordingly, we reverse the trial court’s
November 18, 2019 judgment, and we render judgment vacating the trial court’s
May 2, 2017 take-nothing summary judgment.

W. BRUCE WILLIAMS
JUSTICE

October 28, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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