In In re McCown, a county court had a contested probate matter, and a party filed a motion to assign a statutory probate judge and another party filed a motion to transfer the case to a district court. No. 10-20-00128-CV, 2020 Tex. App. LEXIS 6276 (Tex. App.—Waco August 10, 2020, original proceeding). After the county court entered an order transferring the case to the district court, the party seeking a statutory probate judge filed a petition for writ of mandamus.
The court of appeals first cited the applicable statute:
(a) In a county in which there is no statutory probate court or county court at law exercising original probate jurisdiction, when a matter in a probate proceeding is contested, the judge of the county court may, on the judge’s own motion, or shall, on the motion of any party to the proceeding, according to the motion: (1) request the assignment of a statutory probate court judge to hear the contested matter, as provided by Section 25.0022, Government Code; or (2) transfer the contested matter to the district court, which may then hear the contested matter as if originally filed in the district court.
(b) If a party to a probate proceeding files a motion for the assignment of a statutory probate court judge to hear a contested matter in the proceeding before the judge of the county court transfers the contested matter to a district court under this section, the county judge shall grant the motion for the assignment of a statutory probate court judge and may not transfer the matter to the district court unless the party withdraws the motion.
Id. (citing Tex. Estates Code § 32.003 (a)-(b)). The court of appeals granted mandamus relief because the petitioner filed a motion to appoint a statutory probate judge prior to the entry of the trial court’s order transferring the proceedings to the district court. The court held that “the trial court abused its discretion by its transfers and by not appointing a statutory probate court judge in these proceedings as the statute expressly requires.” Id. The court also held that the petitioner did not waive his complaint by filing an answer in the district court after transfer. Id. Interestingly, the court of appeals did not discuss the inadequate remedy at law requirement for mandamus relief and granted mandamus solely due to an abuse of discretion.