Terry Adams, Justice

John L. Dagley, Buck Keenan L.L.P., 2229 San Felipe, Ste. 1000, Houston, Texas 77019, Jennifer Bruch Hogan, Richard P. Hogan, Jr., James C. Marrow, 711 Louisiana, Ste. 500, Houston, Texas 77002, for Appellant.

Terry B. Joseph, David M. Lodholz, Matthews, Lawson, McCutcheon & Joseph, PLLC, 2000 Bering Dr., Ste. 700, Houston, Texas 77027, for Appellee.

Panel consists of Chief Justice Radack and Justices Hightower and Adams.

Terry Adams, Justice

In this appeal, appellant Prentis B. Tomlinson, Jr. challenges two post-judgment, modified turnover orders. The underlying judgment was rendered in favor of appellee John Khoury and against Tomlinson, in his individual capacity, for fraud, breach of contract, and violations of the Texas Securities Act. But in the two challenged turnover orders, the trial court invalidated a 30-year-old spendthrift trust, of which Tomlinson was the trustee and a beneficiary, and ordered Tomlinson, in his individual capacity, to turnover all trust assets previously held as trust property—even though neither the trust nor its trustee were parties to the turnover proceedings and are not judgment debtors. In two issues on appeal, Tomlinson contends the turnover orders are (1) void or, at minimum, (2) an abuse of discretion. Because we agree with Tomlinson's first issue, we vacate the two challenged post-judgment, modified turnover orders.

Background

The Underlying Judgment

In 2012, Khoury sued Tomlinson individually, alleging violations of the Texas Securities Act, fraud, and breach of contract related to a business investment gone wrong. In his Third Amended Petition, Khoury identified Tomlinson as "a nonresident individual" who "has been served and made an[ ] appearance herein." Khoury did not sue any trust and did not name or sue Tomlinson in his capacity as a trustee of any trust. As a result, Tomlinson answered and appeared in the lawsuit in only his individual capacity.

In 2017, following a jury trial and subsequent remand from this Court, the trial court entered a final judgment against "Defendant Prentis B. Tomlinson, Jr.," awarding Khoury more than $1 million in combined damages and attorney's fees.

Post-Judgment Discovery and Original Post-Judgment Turnover Order

Following the entry of the final judgment, Khoury sought post-judgment interrogatories and requests for production from Tomlinson in order to aid in the enforcement of that judgment. When Tomlinson failed to respond, Khoury moved to compel and requested a turnover order from the trial court. On May 25, 2018, the trial court granted both Khoury's motion to compel and turnover application.

In its original turnover order, the trial court made the following findings:

• [Tomlinson] owns non-exempt property that is not readily subject to attachment or levy, and that [Khoury] is entitled to collect upon [Khoury's] final, valid and subsisting judgment against [Tomlinson].

• [Khoury] made a good faith effort to conduct post judgment discovery and collect the judgment but was unsuccessful prior to filing the Application for Turnover Order.

• [Khoury] attempted to collect the judgment by serving [Tomlinson] with post-judgment discovery; and on [Tomlinson's] failure to respond, [Khoury] secured an Agreed Order entered by this Court ordering [Tomlinson] to provide responses, but [Tomlinson] failed to comply with said Order.

• [Tomlinson] had failed to provide identification or location of any assets whatsoever.

And the trial court concluded that the "only reasonable and workable foreseeable option is a turnover order to aid in the collection of the judgment."

The trial court directed Tomlinson to turn over "all non-exempt property of [Tomlinson] that is in the actual or constructive possession or control of [Tomlinson]." The turnover order applied to property such as a cash, accounts receivable, real and personal property, stocks, bonds, vehicles, furniture, and equipment, but (as Khoury acknowledges) did not mention or include any trust agreements.

Discovery of Slattery Trust

After entry of the original turnover order, and during the course of post-judgment discovery, Khoury "discovered the existence of a purported trust"—the Slattery Trust (the "Trust"). The Slattery Trust was formed in 1987 by Marjorie J. Tomlinson, the grantor, and designated Tomlinson, her son, as the trustee and primary beneficiary. Article 1.1 of the Trust states that the trustee "shall initially hold the trust property as a single trust for the primary benefit of the Grantor's son, Prentis B. Tomlinson, Jr. (‘the Grantor's son.’)." (Emphasis added.)

The Trust also contemplates additional trusts being created for other descendants. For example, the Trust agreement provides that the properties listed in Schedule A to the Trust, "together with any other property which may hereafter be conveyed to the Trustee subject to the trusts hereby created , shall be held, administered and distributed by the Trustee[.]" (Emphasis added.) "These trusts shall be known collectively as the ‘SLATTERY TRUST.’ " (Emphasis added.)

Article 1.1 further states that "[e]ach trust provided for by this section or by section 1.6 shall be known by the name of the descendant of the Grantor for whom it was set aside (hereinafter called the ‘Beneficiary’ of his or her trust) which descendant shall be the primary beneficiary thereof."

Article 1.3 provides that, "[w]ith regard to each trust created by this Article, the Trustee shall distribute to the Beneficiary of such trust or any descendant of such Beneficiary such amounts of trust income and principal as are necessary ... to provide for the health, support, maintenance and education of each such distribute[.]" (Emphasis added.)

Additionally, Article 1.6 provides:

The trust of which the Grantor's son is the Beneficiary shall continue for such Beneficiary's lifetime. Each trust created by this Article for a Beneficiary other than the Grantor's son shall terminate when the Beneficiary of such trust has attained the age of forty years, and the then remaining trust property shall be distributed to the Beneficiary of such trust.

Modified Turnover Orders

After discovering the Trust, Khoury moved to modify the trial court's original turnover order and declare the Trust invalid. Relying on Texas Property Code section 112.034(a), Khoury argued that the Trust "does not protect the principal or interest contained therein from attachment by judgment creditors" because Tomlinson "is both the trustee and sole beneficiary of the Trust, rendering the Trust invalid."

Tomlinson responded that Khoury's motion should be denied because: (1) section 112.034(a)'s merger doctrine does not apply since the Trust has multiple beneficiaries; (2) the merger doctrine does not operate to invalidate a spendthrift trust; (3) the assets in the Trust are exempt property under the turnover statute; (4) the turnover statute does not apply to non-judgment debtors, i.e., the Trust and Prentis B. Tomlinson, Jr., as trustee; and (5) the modification requested by Khoury would require the adjudication of substantive rights related to the Trust and parties not before the court, contrary to Texas law.

On February 12, 2019, the trial court granted Khoury's motion to modify and declared the Trust "is not a valid trust, as it vests all legal and equitable title in [Tomlinson], individually." This modified turnover order required Tomlinson "to turn over all assets, properties, documents and records of property ownership related to assets which he previously held out as being part of the [T]rust to the Sheriff." Additionally, the parties and Sheriff were ordered to "treat all assets previously held as trust property as [Tomlinson's] personal property under the Turnover Order."

On February 14, 2019, the trial court entered a second modified turnover order, which included these additional findings:

• This Court finds that Defendant Prentis B. Tomlinson, Jr. is the sole trustee and sole beneficiary of the Slattery Trust.

• This Court finds that the Slattery Trust is not a valid trust, as it vests all legal and equitable title in [Tomlinson], individually.

• This Court finds that the Slattery Trust is not a valid spendthrift trust, as [Tomlinson] is the real owner of the property.

And the trial court expressly ordered that "the Slattery Trust is invalidated."

In addition, the trial court found that Tomlinson had made deposits into the Trust of personal funds, including "at least a deposit of $2,796,980 made in October 2013 from the proceeds from the sale of a house solely owned by [Tomlinson]," and that "all personal funds deposited into the Slattery Trust by [Tomlinson] are self-settled and are subject to the claims of [Tomlinson's] creditors." The trial court therefore ordered that $2,796,980 of the funds in the Trust were Tomlinson's personal property that was "subject to attachment and execution to satisfy [Khoury's] judgment against [Tomlinson.]"

The trial court further modified the turnover order to "require [Tomlinson] to turn over all assets, properties, documents and records of property ownership related to assets in the name of or subject to the control of the Slattery Trust , including but not limited to the $2,796,980 transferred into the Slattery Trust in October 2013, to the Harris County Constable[.]" (Emphasis added).

The trial court also directed the parties, and the Harris County Constable, to "treat all assets previously held as trust property as [Tomlinson's] personal property under the Turnover Order ... and the Turnover Order shall directly apply to all such assets and property in the name of or subject to the control of the Slattery Trust , including the trust bank accounts, brokerage accounts, annuities, and all other types of tangible and intangible property." (Emphasis added.)

Tomlinson, in his individual capacity, appeals from the trial court's February 12 and February 14 post-judgment, modified turnover orders.

Jurisdiction

In his first issue, Tomlinson argues that the trial court lacked jurisdiction to enter the modified turnover orders because the underlying judgment was entered against Tomlinson in his individual capacity only. That is, neither Tomlinson, in his capacity as the trustee, nor the Trust itself was a party to the underlying lawsuit or to the post-judgment turnover proceedings.

For the reasons set out below, we agree with Tomlinson. The trial court never obtained jurisdiction over the Trust and, therefore, its post-judgment, modified turnover orders invalidating the Trust and requiring the turnover of all trust assets are void.

A. Applicable Law

An order is void when a court has no power or jurisdiction to enter it. Urbish v. 127th Jud. Dist. Ct. , 708 S.W.2d 429, 431 (Tex. 1986). "It is axiomatic that a judgment must be supported by a proper showing of jurisdiction over the subject matter and over the relevant parties." Velasco v. Ayala , 312 S.W.3d 783, 797 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citations omitted). A court obtains jurisdiction over a defendant through valid service of process or through the defendant's appearance. Mapco, Inc. v. Carter , 817 S.W.2d 686, 687 (Tex. 1991) (citing TEX. R. CIV. P. 124 ) ("In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance."); Velasco , 312 S.W.3d at 797 ("Personal jurisdiction is comprised of two elements: (1) the defendant must be amenable to the jurisdiction of the court and (2) the plaintiff must validly invoke that jurisdiction by valid service of process on the defendant."). And where a court rendering judgment has no jurisdiction over the parties or property, that judgment is void. In re D.S. , 602 S.W.3d 504, 512 (Tex. 2020).

B. The Texas Turnover Statute

Texas Civil Practice and Remedies Code section 31.002, commonly referred to as the "Turnover Statute," provides that:

(a) A judgment creditor is entitled to aid from a court of appropriate jurisdiction through injunction or other means in order to reach property to obtain satisfaction on the judgment if the judgment debtor owns property, including present or future rights to property, that is not exempt from attachment, execution, or seizure for the satisfaction of liabilities.

(b) The court may:

(1) order the judgment debtor to turn over nonexempt property that is in the debtor's possession or is subject to the debtor's control, together with all documents or records related to the property, to a designated sheriff or constable for execution;

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(c) The court may enforce the order by contempt proceedings or by other appropriate means in the event of refusal or disobedience.

(d) The judgment creditor may move for the court's assistance under this section in the same proceeding in which the judgment is rendered or in an independent proceeding.

See TEX. CIV. PRAC. & REM. CODE § 31.002(a) – (d).

The Turnover Statute is a purely procedural device. It permits a trial court to order the judgment debtor to turn over nonexempt property that is in the judgment debtor's possession or control, including present or future rights to property. See Alexander Dubose , 540 S.W.3d at 581 (describing Turnover Statute as "a procedural device to assist [judgment creditors] in satisfying their judgment debts"); Beaumont Bank, N.A. v. Buller , 806 S.W.2d 223, 224 (Tex. 1991) (describing Turnover Statute as "the procedural device by which judgment creditors may reach assets of a debtor that are otherwise difficult to attach or levy on by ordinary legal process").

The purpose of a turnover proceeding is merely to ascertain whether an asset is in the possession of the judgment debtor or subject to the debtor's control. Buller , 806 S.W.2d at 227. The Turnover Statute is not to be used to determine parties' and non-judgment debtors' substantive rights or ownership rights. Alexander Dubose , 540 S.W.3d at 583. Furthermore, a turnover order cannot be used to obtain personal jurisdiction over a party—the party must already be within the trial court's jurisdiction. See Republic Ins. Co. v. Millard , 825 S.W.2d 780, 783–84 (Tex. App.—Houston [14th Dist.] 1992) (orig. proceeding) (noting that Turnover Statute cannot be used to allow "the original trial court [to] reach out and assume jurisdiction for trial purposes of potential lawsuits involving third parties"). These limitations on the Turnover Statute, which are enforceable by order of contempt, stem from the due process concerns underlying the personal-jurisdiction requirement. See TEX. CIV. PRAC. & REM. CODE § 31.002(c) (enforcement provision); see also Bollore S.A. v. Import Warehouse, Inc. , 448 F.3d 317, 324 (5th Cir. 2006) (holding that "consistent with due process, a court may not—as the district court attempted to do in this case—use the turnover statute to adjudicate the rights and seize the assets of a third party who might not otherwise be amenable to jurisdiction in that court").

As Texas Supreme Court Justice Raul Gonzalez has explained,

[w]hether a turnover order is enforceable by a contempt order directed to a stranger to the lawsuit is a serious matter that goes to the very heart of due process. A turnover order typically issues without service of citation ... [and] effectively shifts the burden to the judgment debtor to account for assets to satisfy a judgment. A turnover order that issues against a non-party for property not subject to the control of the judgment debtor completely bypasses our system of affording due process. Otherwise, a court could simply order anyone (a bank, an insurance company, or the like) alleged to owe money to a judgment debtor to hand over cash on threat of imprisonment.

Ex parte Swate , 922 S.W.2d 122, 125 (Tex. 1996) (Gonzalez, J., concurring) (citation omitted).

C. Analysis

Here, it is undisputed that Khoury did not join Tomlinson in his capacity as the trustee of the Trust, or the Trust itself, as a party to the underlying lawsuit or to the post-judgment turnover proceedings. Because the Trust was not properly before the trial court, Tomlinson argues that the trial court did not have jurisdiction to invalidate the Trust or to order the parties "to treat all assets previously held as trust property as [Tomlinson's] personal property." According to Tomlinson, this renders the modified turnover orders void.

Khoury does not directly address Tomlinson's jurisdictional argument. Instead, Khoury argues the trial court had "authority" to modify the post-judgment turnover order because the Turnover Statute "provides jurisdiction not only over property which [a] judgment debtor[ ] possesses, but also over property, no matter who possesses it, which is subject to his control." Khoury maintains that the trial court, in its modified turnover orders, "did not require the Slattery Trust, or Tomlinson, as trustee, to take any action." Rather, according to Khoury, the orders "merely determine assets which Tomlinson, individually has possession and custody over." Despite Khoury's assertions to the contrary, the modified turnover orders do more than merely determine which assets are within Tomlinson's individual custody and control—they explicitly invalidate the Trust and require the turnover of all Trust assets. In the modified turnover order signed on February 14, the trial court expressly found that: (1) Tomlinson is the sole trustee and sole beneficiary of the Trust; (2) the Trust is not a valid trust; and (3) the Trust is not a valid spendthrift trust. And in light of these findings, the trial court ordered that "the Slattery Trust is invalidated." The trial court's directives requiring Tomlinson to "turn over all assets, properties, documents and records of property ownership related to assets in the name or subject to the control of the Slattery Trust" and requiring the parties to "treat all assets previously held as trust property as [Tomlinson's] personal property" are thus dependent on its predicate conclusion that the Trust is invalid.

In a limited sense, Khoury is correct that the trial court's modified turnover orders do not directly order Tomlinson, as trustee, or the Slattery Trust itself to take any action. Indeed, there was no trust or trustee before the trial court to perform any action ordered by the trial court in its February 12 and 14, 2019 modified turnover orders. Nevertheless, the trial court invalidated the Trust and required the turnover of all Trust assets without Tomlinson, in his capacity as trustee, or the Trust itself ever being joined as a party in the underlying lawsuit or the post-judgment turnover proceedings.

In Texas, a trust is not a separate legal entity, but instead is a fiduciary relationship between the trustee and the trust property. Ray Malooly Tr. v. Juhl , 186 S.W.3d 568, 570 (Tex. 2006) ("[T]he term ‘trust’ refers not to a separate legal entity but rather to the fiduciary relationship governing the trustee with respect to the trust property."). Texas law is clear that in all suits "by or against a trustee and all proceedings concerning trusts ," the trustee is a necessary party to the action. See TEX. PROP. CODE §§ 115.001(a) (emphasis added), 115.011(b)(4); see also Ray Malooly Tr. , 186 S.W.3d at 570 ("The general rule in Texas (and elsewhere) has long been that suits against a trust must be brought against its legal representative, the trustee."); In re Estate of Webb , 266 S.W.3d 544, 548 (Tex. App.—Fort Worth 2008, pet. denied) ("The Texas Trust Code provides that in an action by or against a trustee and in all proceedings concerning trusts, the trustee is a necessary party if a trustee is serving at the time the action is filed." (quotation omitted)).

And where the trustee is not properly before the court as a result of service, acceptance, waiver of process, or an appearance, Texas courts have invalidated orders that grant relief against a trust. See, e.g., In re Ashton , 266 S.W.3d 602, 604 (Tex. App.—Dallas 2008, orig. proceeding) ("[F]or relief to be ordered against a trust, its trustee must be properly before the trial court as a result of service, acceptance, or waiver of process, or an appearance.").

For example, in In re Ashton , the Dallas Court of Appeals held that an order in a divorce action, which appointed a successor trustee and ordered payment of the wife's attorney's fees and expenses out of the trust, was void because the trust, through its trustee, was not joined as a party in the divorce action. 266 S.W.3d at 603–04. As is relevant here, the husband, who was also the trustee of the trust at issue, was before the court in his individual capacity, but had not been sued in his capacity as trustee. Id. at 604.

In another case, the Dallas Court of Appeals reversed a trial court's judgment to the extent that it invalidated a management trust, again, because the trustee was not a party to the action. See Tex. Capital Bank v. Asche , No. 05-15-00102-CV, 2017 WL 655923, at *20 (Tex. App.—Dallas Feb. 17, 2017, pet. dism'd) (mem. op.). In Asche , the children of the decedent brought a will contest to set aside multiple estate-planning documents, including a management trust, arguing that the decedent lacked capacity to execute those documents after suffering a stroke. Id. at *1. The trial court entered judgment in favor of the children following a jury trial, which invalidated the decedent's management trust. Id. The court of appeals reversed, holding that the "failure to join the trustee of the trust was fatal to jurisdiction over that trust, and the [trial] court had no authority to set aside the trust." Id. at *20.

In this case, Khoury did not contend in the trial court, and does not contend in this Court, that the settled law prescribing a trial court's limited authority to invalidate a trust does not apply in the context of a turnover proceeding. Indeed, we are not aware of any controlling Texas authority, and Khoury has directed us to none, that stands for that proposition.

Accordingly, in light of the limited purpose of the Turnover Statute—which is merely to ascertain whether an asset is in the possession or control of a judgment debtor and not to determine third parties' substantive rights—and the underlying due process and personal-jurisdiction concerns, we conclude that the requirement that a trustee must be added as a party to actions involving purported trust assets, including the invalidation of a trust, is even more appropriate in the context of turnover proceedings. We therefore apply it here.

Like the order at issue in Asche , the two modified, post-judgment turnover orders in this case expressly invalidate the Trust and order the parties to treat the Trust assets as Tomlinson's personal property—without first having the Trust, through its trustee, properly before the trial court. But this is undoubtedly a proceeding concerning a trust in which the trustee was a necessary party. See TEX. PROP. CODE §§ 115.001(a), 115.011(b)(4) ; Ray Malooly Tr. , 186 S.W.3d at 570 ; In re Estate of Webb , 266 S.W.3d at 548.

Although Tomlinson was before the court in his individual capacity, he was not sued, and did not appear, in his capacity as trustee of the Trust. Therefore, he, as trustee of the Trust, was not "properly before the trial court as a result of service, acceptance, or waiver of process, or an appearance." In re Ashton , 266 S.W.3d at 604 ; see also Mapco, Inc. , 817 S.W.2d at 687 ; Velasco , 312 S.W.3d at 797. Under these circumstances, we conclude the trial court lacked jurisdiction over the Trust and thus erroneously invalidated the Trust, and erroneously required the turnover of Trust assets, in its February 12 and 14, 2019 modified turnover orders. Accordingly, we hold that these two post-judgment, modified turnover orders are void. Id. ("[B]ecause the trial court lacked jurisdiction over the I.A. Trust, its Order was void.").

We sustain Tomlinson's first issue.

Conclusion

For the reasons above, we hold that the two post-judgment, modified turnover orders signed by the trial court on February 12 and 14, 2019 are void. We therefore reverse the trial court's February 12 and 14, 2019 post-judgment, modified turnover orders and render judgment vacating those orders in all things. See Cent. Bank of Houston v. Guardianship of Neblett ex rel. Neblett , No. 01-05-00811-CV, 2006 WL 3518568, at *2 (Tex. App.—Houston [1st Dist.] Dec. 7, 2006, no pet.) (mem. op.) ("Because the trial court lacked power to enter the turnover order, we hold that the order is void, and therefore vacate the order.").