Summary
In Atkins v. Rayburn, 506 S.W.2d 208 (Tex.1974), a mandamus action was brought to compel the district court to dismiss five probate court appeals on the ground that the amendment of Section 8 of Article V of the Texas Constitution, and Section 5 of the Probate Code effective November 6, 1973, lodged jurisdiction of appeals from probate proceedings in the courts of civil appeals and thus deprived the district court of jurisdiction.
Summary of this case from Staehling v. SchneiderOpinion
No. B — 4451.
February 27, 1974. Rehearing Denied March 20, 1974.
Hofheinz Harpold, Lew W. Harpold and Howard C. Rainey, III, Houston, for relator.
Kenyon Houchins and Charles E. Crenshaw, Houston, for respondents.
Respondent Jean Small appealed five orders of the probate court denying her application to be appointed administratrix of her husband's estate in place of relator, denying her application to have relator removed on grounds of fraud and incompetence and awarding various fees to relator and an attorney to the district court of Judge Madison Rayburn. In this mandamus action relator asks this court to compel Judge Rayburn to dismiss the probate court appeals filed by respondent Jean Small. Relator contends that the amendment of Section 8 of Article V of the Constitution of Texas, Vernon's Ann.St. and Section 5 of the Probate Code, Vernon's Annotated Civil Statutes, Volume 17A, V.A.T.S., as amended effective November 6, 1973, lodging jurisdiction of probate court appeals in the court of civil appeals, deprives the district court of jurisdiction to entertain Mrs. Small's appeals. Mrs. Small perfected all of her appeals from the probate court prior to the effective date of the new amendment; therefore, her appeals to the district court are not affected by the amendment. See Gulf Oil Corporation v. Outlaw, 136 Tex. 281, 150 S.W.2d 777 (1941). Motion for leave to file petition for writ of mandamus is overruled.