Ordinarily the personal representative of the estate of a decedent is the only person entitled to sue for the recovery of property belonging to the estate. Moody v. Moody , 613 S.W.3d 707, 718 (Tex. App.—Houston [14th Dist.] 2020, pet. filed) (citing Shepherd v. Ledford , 962 S.W.2d 28, 31 (Tex. 1998) ; Frazier v. Wynn , 472 S.W.2d 750, 752 (Tex. 1971) ; Chandler v. Welborn , 156 Tex. 312, 294 S.W.2d 801, 806 (1956) ); In re Estate of Preston , 346 S.W.3d 137, 163 (Tex. App.—Fort Worth 2011, no pet.). There is an exception to this general rule, however, when the personal representative cannot, or will not, bring the suit or when the personal representative's interests are antagonistic to those of the estate.

“The Estates Code . . . defines ‘heir' as one entitled to part of an estate if the decedent dies intestate.” Moody v. Moody, 613 S.W.3d 707, 716 (Tex. App.- Houston [14th Dist.] 2020, pet. denied) (quoting Tex. Estates Code § 22.015). Nothing in the record indicates that Clemencia Cardenas died intestate.

Fed.R.Civ.P. 17(b); see also Moody v. Moody, 613 S.W.3d 707, 714 (Tex.App.-Houston (14th Dist.) 2020, pet. denied). It may be that Plaintiff has one or more viable claims to pursue.

The general rule in Texas is the personal representative of the estate of a decedent is the only person who has capacity to bring a claim but an heir at law can maintain a survival action so long as they “allege and prove that there is no administration pending and none necessary.” Frazier v. Wynn, 472 S.W.2d 750, 752 (Tex. 1971); accord Rodgers, 819 F.3d at 212; accord Moody v. Moody, 613 S.W.3d 707, 718 (Tex. App.-Houston [14th Dist.] 2020). Under Texas's Wrongful Death Statute, “[t]he surviving spouse, children, and parents of the deceased may bring the action or one or more of those individuals may bring the action for the benefit of all.”

LINDA MOODY v. DELORIS DARLENE MOODY AND MOODY NATIONAL BANK, AS TRUSTEE OF THE W.L. MOODY, IV LIVING TRUST AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF W.L. MOODY, IV, DECEASED; From Galveston County; 14th Court of Appeals District (14-18-01018-CV, 613 S.W.3d 707, 11-10-20) ORDER

LINDA MOODY v. DELORIS DARLENE MOODY AND MOODY NATIONAL BANK, AS TRUSTEE OF THE W.L. MOODY, IV LIVING TRUST AND AS INDEPENDENT EXECUTOR OF THE ESTATE OF W.L. MOODY, IV, DECEASED; From Galveston County; 14th Court of Appeals District (14-18-01018-CV, 613 S.W.3d 707, 11-10-20) ORDER

As a result, there was no "estate of a decedent," nor an "intestate decedent's property." See Moody v. Moody, 613 S.W.3d 707, 716 (Tex. App.-Houston [14th Dist.] 2020, pet. denied) (concluding that "there is no 'heir' in this case within the meaning of the Estates Code definition because William did not die intestate; William died leaving a will"). Therefore, Spears had not obtained the status of "heir."

See Moody v. Moody, 613 S.W.3d 707, 719 (Tex. App.-Houston [14th Dist.] 2020, pet. denied) (addressing whether an heir may sue to recover property belonging to an estate when the estate's personal representative had declined to bring suit, and not discussing whether a trust's beneficiary may sue a trustee for acts taken while the beneficiary's interest was contingent); Davis v. Davis, 734 S.W.2d 707, 709 (Tex. App.-Houston [1st Dist.] 1987, writ ref'd n.r.e.) (involving suit by a person who was not named as a beneficiary of a trust of which his children were beneficiaries and who would have an interest in the trust only if one of his children died intestate).

. "While the question of whether a party is entitled to sue on a contract is often informally referred to as a question of 'standing,' it is not truly a standing issue because it does not affect the jurisdiction of the court; it is, instead, a decision on the merits." Heartland Holdings Inc. v. U.S. Tr. Co. of Tex., 316 S.W.3d 1, 6-7 (Tex. App.- Houston [14th Dist.] 2010, no pet.); see also Moody v. Moody, 613 S.W.3d 707, 713-14 (Tex. App.-Houston [14th Dist.] 2020, pet. denied). "A plaintiff has standing when it is personally aggrieved, regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy." Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848-49 (Tex. 2005) (citation omitted). OGE's challenge to whether Statoil Pipelines was a party to the JOA and the Rule 11 agreement is a challenge to Statoil Pipelines' privity of contract.

We note that in this case, there are no heirs because the decedent did not die intestate. See TEX. EST. CODE ANN. § 22.015 ("'Heir' means a person who is entitled under the statutes of descent and distribution to a part of the estate of a decedent who dies intestate."); Moody v. Moody, 613 S.W.3d 707, 716 (Tex. App.-Houston [14th Dist.] 2020, pet. denied) ("[T]here is no 'heir' in this case within the meaning of the Estates Code definition because William did not die intestate; William died leaving a will."). Therefore, appellant cannot be an heir as a matter of law.