In In the Estate of Nicholas, the temporary administrator of an estate and the decedent’s mother filed a Texas Rule of Civil Procedure 202 petition concerning a shootout at a residence by the City of Houston Police Department. No. 14-19-00716-CV, 2020 Tex. App. LEXIS 2532 (Tex. App.—Houston [14th Dist.] March 26, 2020, no pet. history). The petitioners sought to investigate potential claims against the city. The city filed a plea to the jurisdiction, asserting that the petition failed as a matter of law because the statutory probate court lacked statutory subject-matter jurisdiction and other grounds. The court denied the plea, and an interlocutory appeal followed.

The court of appeals discussed a statutory probate court’s jurisdiction:

Section 32.005 of the Texas Estates Code provides that a “statutory probate court has exclusive jurisdiction of all probate proceedings, regardless of whether contested or uncontested.” Tex. Est. Code § 32.005(a) (emphasis added). In a county in which there is a statutory probate court, “a claim brought by a personal representative on behalf of an estate” is also a claim “related to [a] probate proceeding.” See Tex. Est. Code § 31.002(a)(3), (c)(1)-(2) (defining “matters related to a probate proceeding”)… In addition, Section 32.005(a) recognizes that the Estates Code provides for concurrent jurisdiction over some causes of action related to a probate proceeding.4Link to the text of the note Specifically, the statutory probate court has concurrent jurisdiction [*10]  with district courts in actions enumerated in Section 32.007. Tex. Est. Code § 32.005(a); see also Tex. Est. Code § 32.007. Section 32.007 of the Texas Estates Code provides that a statutory probate court has concurrent jurisdiction with a district court over several types of actions, including “a personal injury, survival, or wrongful death action by or against a person in the person’s capacity as a personal representative.” See id. § 32.007(1).

Id. The court then discussed Rule 202:

Texas Rule of Civil Procedure 202 provides a mechanism for requesting court authorization of pre-suit depositions to either (1) perpetuate or obtain testimony for use in an anticipated lawsuit, or (2) investigate a potential claim or suit. Tex. R. Civ. P. 202.1. … A Rule 202 petition must “be filed in the proper court of any county . . . .” Tex. R. Civ. P. 202.2(b). This court has previously held that “[a] proper court to entertain a Rule 202 petition is a court that would have subject-matter jurisdiction over the underlying dispute or anticipated lawsuit; thus, we must look to the substantive law of the underlying dispute or anticipated action to determine jurisdiction.”

Id. The court then analyzed the petitioners’ claims and held that the statutory probate court had subject matter jurisdiction over those claims:

The claims Petitioners seek to investigate include survival claims. “A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person.” The personal representative of Rhogena’s estate is the proper party to bring a survival claim to recover damages Rhogena suffered before her death. … Accordingly, the potential survival claims Petitioners seek to investigate by the Rule 202 proceeding are matters “related to a probate proceeding” and therefore fall within a statutory probate court’s subject matter jurisdiction. Moreover, Estates Code section 32.007 provides separately that a statutory probate court has concurrent jurisdiction with the district court in, among other lawsuits, “a personal injury, survival, or wrongful death action by or against a person in the person’s capacity as a personal representative.” Jo Ann Nicholas is alleged to be Rhogena’s mother and has explained in the Rule 202 petition her desire to investigate, and her interest in, a potential wrongful death claim against the City. An action to recover damages for the wrongful death of a decedent is for the exclusive benefit of the surviving spouse, children, and parents of the deceased.

Id. Therefore, the court held that the trial court had subject matter jurisdiction over the Rule 202 petition and affirmed the denial of the plea to the jurisdiction.

Tags: jurisdiction, plea to the jurisdiction, pre-suit deposition, Rule 202, Rule 202 deposition, statutory probate court jurisdiction
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Photo of David Fowler Johnson David Fowler Johnson

[email protected]
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]
817.420.8223

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More

David’s financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.

David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David’s recent trial experience includes:

  • Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
  • Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
  • Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
  • Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
  • Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.

David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.

Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.

David maintains an active appellate practice, which includes:

  • Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
  • Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
  • Original proceedings such as seeking and defending against mandamus relief; and
  • Seeking emergency relief staying trial court’s orders pending appeal or mandamus.

For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.

David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David’s articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law Review, St. Mary’s Law Journal, South Texas Law Review and Tennessee Law Review.

Representative Experience

  • Civil Litigation and Appellate Law
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