In In re Est. of Terrell, the decedent Sue died on May 15, 2010. No. 12-25-00177-CV, 2025 Tex. App. LEXIS 8901 (Tex. App.—Tyler November 19, 2025, pet. denied). In August 2022, Sue’s son Donald Ray Terrell filed an application for independent administration of Sue’s estate. After learning that Sue had a will, Donald filed an application to appoint a temporary dependent administrator and for issuance of letters testamentary. The will named her son, Howard Jr., as an alternate executor, the original executor had predeceased the decedent. Following a hearing, the trial court appointed another of Sue’s sons, Michael Terrell, as dependent administrator of Sue’s estate because Howard Jr. was unsuitable to serve. Howard Jr. appealed.

The court of appeals first discussed the standards for appointing representatives:

The Texas Estates Code provides the following priority to qualified persons in the appointment of an administrator: (1) the person named as executor in the decedent’s will; (1-a) the person designated as administrator as authorized under Section 254.006; (2) the decedent’s surviving spouse; (3) the principal devisee of the decedent; (4) any devisee of the decedent; (5) the next of kin of the decedent; (6) a creditor of the decedent; (7) any person of good character residing in the county who applies for the letters; (8) any other person who is not disqualified under Section 304.003; and (9) any appointed public probate administrator. Tex. Est. Code Ann. § 304.001(a) (West 2020). When applicants are equally entitled, letters shall be granted to the applicant who, in the judgment of the court, is most likely to administer the estate advantageously, or they may be granted to any two or more of such applicants. Id. § 304.001(c). The estates code also deems certain persons statutorily disqualified to serve as an executor, including a “person whom the court finds unsuitable.” Id. § 304.003(a)(5) (West Supp. 2024). The trial court is granted broad discretion in determining whether an individual is suitable to serve as an executor or administrator.

Id. The court then held that the trial court did not abuse its discretion in determining that Howard Jr. was unsuitable:

Howard Jr. urges the trial court erred in disqualifying him as executor because he was not convicted of aggravated assault with a deadly weapon. He urges that because he completed his deferred adjudication, the charge should not be considered against him. Contrary to Howard Jr.’s assertion, the trial court did not find him unsuitable due to a criminal conviction. Instead, it determined that Howard Jr.’s admission that he committed aggravated assault with a deadly weapon against another heir to the estate deemed him unsuitable.

Id. The court then affirmed the appointment of Michael because, even though he was not a resident of Texas, he followed the Estate’s Code’s requirements and appointed an agent in Texas.

Tags: assault by applicant, executor, executor appointment, executor qualifications, suitability, suitability of executor
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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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