In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-26-00096-CV
IN RE ESTATE OF SHERRI MICHELE GILLETTE, DECEASED
On Appeal from the County Court at Law No. 1
Potter County, Texas
Trial Court No. 113491-1-CV, Honorable Walton Weaver, Presiding
August 12, 2026
MEMORANDUM OPINION
Before PARKER, C.J., and DOSS, J., and QUINN, S.J.1
We have before us an appeal from a final summary judgment. Consideration of
the appellate record and parties’ briefs leads us to reverse. Simply put, the summary
judgment movant, Dwayne Herring, as Dependent Administrator of the testamentary
Estate of Sherri Michele Gillette, did not prove an entitlement to summary judgment as a
matter of law.
1 Brian Quinn, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Background
The appellate record reveals circumstances entailing an unadjudicated divorce, a
murder, and the probate of the victim’s will. The victim, Sherri Michele Gillette, sought to
divorce her husband, Paul Gillette. Yet, Paul murdered her in 2010, before finalization of
the divorce. That resulted in Sherri’s father, Dwyane Herring, pursing the probate of his
daughter’s estate in the Potter County Court. He secured the appointment as the estate’s
administrator in September of 2010.
Approximately 13 years later, Dwayne sued Paul in the 251st Judicial District Court
even though the Potter County Court probate remained pending. Relief consisted of
obtaining various declarations as well as a constructive trust. The desired declarations
included findings that 1) Paul was a beneficiary under the will, 2) the children of the
marriage were contingent beneficiaries, and 3) Paul’s murder of Sherri resulted in the
forfeiture of his bequest from Sherri. If those declarations were made, then Sherri’s estate
should be placed in a constructive trust for the benefit of the children, or so Dwayne
pleaded.
Paul, acting pro se, answered and counterclaimed. Among other things, he
ultimately sought 1) the removal of Dwayne as administrator due to mismanagement,
conflict of interest, and breached fiduciary duty, 2) damages, 3) an accounting of the
estate and his community interest therein, 4) nullification of Sherri’s Will, and 5)
nullification of an agreement between he and Sherri regarding an asset within Sherri’s
estate.
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The district court disposed of the suit via two summary judgments. Dwayne moved
for and successfully received both summary judgments. In short, the district court granted
Dwayne what he sought and denied Paul what he desired.
Having lost in the district court, Paul, again pro se, turned to the Potter County
Court and the pending probate of Sherri’s estate therein. Through several pleadings or
documents, he asked for relief against Dwayne similar, if not identical, to that pursued in
and rejected by the district court. That spawned Dwayne to move for summary judgment
on the basis of res judicata. Allegedly, the 251st District Court earlier disposed of the
very claims Paul sought in the Potter County Court probate, and those final judgments
barred Paul’s recovery. After the contested proceeding was transferred by the Potter
County Court to the Potter County Court at Law No. 1 for disposition, the latter granted
Dwayne’s summary judgment motion and entered judgment denying Paul relief. This
appeal ensued.
Discussion
Several grounds for reversal pend for review. We need only consider the first since
it is dispositive. Through it, Paul contends that Dwayne failed to carry his summary
judgment burden to establish, as a matter of law, an element of res judicata. We sustain
the issue.
Res judicata prevents the relitigation of previously resolved claims or claims which
should have been litigated in an earlier suit. Belay v. Wells Fargo Bank, N.A., No. 07-19-00206-CV, 2020 Tex. App. LEXIS 5514, at *7–8 (Tex. App.—Amarillo July 16, 2020, no
pet.) (mem. op.). The affirmative defense, see Kothmann v. Cook, 113 S.W.3d 471, 474
(Tex. App.—Amarillo 2003, no pet.) (categorizing res judicata as an affirmative defense),
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consists of several elements. The element in play here is that requiring the prior judgment
to have been rendered by a court of competent jurisdiction. See Belay, 2020 Tex. App.
LEXIS 5514, at *7–8 (identifying the elements of res judicata as including proof that the
prior judgment was issued by a court of competent jurisdiction). That is, the court
rendering the earlier judgment must have had subject matter jurisdiction to adjudicate the
claims before it. Williams v. National Mortgage Co., 903 S.W.2d 398, 402 (Tex. App.—
Dallas 1995, no pet.). Without such jurisdiction, its judgment poses no bar. Id., accord
Stedfast Baptist Church v. Fellowship of the Sword, Inc., No. 02-21-00436-CV, 2022 Tex.
App. LEXIS 7789, at *32 (Tex. App.—Fort Worth Oct. 20, 2022, no pet.) (mem. op.)
(quoting Lopez v. Sulak, 76 S.W.3d 597 (Tex. App.—Corpus Christi—Edinburg 2002, no
pet.) (stating that “‘a claim is not barred by res judicata if the court rendering judgment in
the initial suit lacked subject[ ]matter jurisdiction over the claim’”)).
Res judicata being an affirmative defense, the summary judgment burden fell on
Dwayne to establish each of its elements as a matter of law. First Sabrepoint Cap. Mgmt.,
L.P. v. Farmland Partners Inc., 712 S.W3d 75, 84–85 (Tex. 2025). Thus, he had to prove
the 251st District Court had jurisdiction to adjudicate each claim before it. His effort to
satisfy that burden consisted of urging several arguments.
The first consisted of alleging that the Declaratory Judgment Act, TEX. CIV. PRAC.
& REM. § 37.001 et seq., granted courts subject matter jurisdiction to issue declaratory
judgments. He was mistaken. The statute authorizes the rendition of declaratory
judgments; it does not create jurisdiction, however. Jessep v. Potter County Cmty.
Supervision & Corr. Dep’t, No. 07-13-00266-CV, 2015 Tex. App. LEXIS 6349, at *9 (Tex.
App.—Amarillo June 23, 2015, no pet.) (mem. op.). Rather, the statute provides a
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“procedural device for deciding cases already within a court’s jurisdiction.” Id. So,
contrary to Dwayne’s belief, jurisdiction must derive from a source other than the
Declaratory Judgment Act.
The alternative source, Dwayne suggested, was the presumption that Texas
district courts enjoy general jurisdiction over all matters. That argument similarly falls
short given the current status of the law.
True . . . district courts being courts of general jurisdiction are presumed to have
subject matter jurisdiction over disputes absent a showing to the contrary. In re
Centerpoint Energy Houston Elec., LLC, 629 S.W.3d 149, 154 (Tex. 2021). But, the key
component here is “absent a showing to the contrary.” In other words, the presumption
is rebutted when the legislature vests in other courts or governmental bodies either
exclusive, appellate or “original” jurisdiction over particular matters. TEX. CONST. art. V,
§ 8 (stating that “[d]istrict Court jurisdiction consists of exclusive, appellate, and original
jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive,
appellate, or original jurisdiction may be conferred by this Constitution or other law on
some other court, tribunal, or administrative body”). The Supreme Court acknowledged
as much in Centerpoint, 629 S.W.3d at 154, just as it did years earlier when saying that
“all claims are presumed to fall within the jurisdiction of the district court unless the
Legislature . . . has provided that they must be heard elsewhere.” S.C. v. M.B, 650
S.W.3d 428, 436 (Tex. 2022) (quoting Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex.
2000) (emphasis added). See also Abel v. Morgan, No. 05-24-00349-CV, 2024 Tex. App.
LEXIS 8517, at *4 (Tex. App.—Dallas Dec. 9, 2024, no pet.) (mem. op.) (same). It is not
necessary that certain buzzwords be included in the statute to rebut the presumption, so
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long as the statutory words evince a clear intent to do so. S.C., 650 S.W.3d at 436,
(quoting Crosstex Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384 (Tex. 2014)
(stating that “[s]uch limitations need not be express, but ‘[w]e resist classifying a provision
as jurisdictional absent clear legislative intent to that effect’” and the jurisdictional
condition must be clear)). That is the circumstance here, as we now explain.
Among other things, Dwayne attacked Paul’s status as a beneficiary under Sherri’s
Will in the 251st District Court. Also before the district court was his request to construct
or interpret Sherri’s Will. In turn, Paul counterclaimed for a judgment vitiating Sherri’s will,
removing Dwayne as administrator, recovering his interest in purported community
property entwined in Sherri’s estate, and granting redress against the estate’s
administrator. No doubt, each chose-in-action involved Sherri’s Will, its probate, the
identity of beneficiaries thereunder, or the administration of her estate. Furthermore, the
Potter County Court administration remained open when Dwayne sued elsewhere. This
is of import for the Texas Estates Code states that: “[a]ll probate proceedings must be
filed and heard in a court exercising original probate jurisdiction.” TEX. ESTATES CODE
§ 32.001(a). “Must” denotes a mandatory condition. Helena Chem. Co. v. Wilkins, 47
S.W.3d 486, 493 (Tex. 2001); In re City of Houston, No. 01-24-00629-CV, 2024 Tex. App.
LEXIS 8098, at *10–11 (Tex. App.—Houston [1st Dist.] Nov. 21, 2024, no pet.) (mem.
op.) (same). See also City of Madisonville v. Sims, 620 S.W.3d 375, 379 (Tex. 2020)
(stating that “[t]he term ‘must’ creates a condition precedent” and “[t]he ninety-day filing
deadline [in the Whistleblower Act] is thus a jurisdictional statutory prerequisite to
suit . . . .”). If a “probate proceeding” “must be filed and heard” in a “court exercising
original probate jurisdiction” and Dubai and Sims mean what they said, then the
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presumption of jurisdiction laying with district courts fails unless they exercise “original
probate jurisdiction.” Whether district courts exercise “original probate jurisdiction” over
“probate proceedings” raises two additional questions.
One concerns what is meant by “a probate proceeding,” while another involves the
identity of “court[s] exercising original probate jurisdiction.” We first answer the latter.
The Estates Code creates a statutory scheme governing the disposition of a decedent’s
estate. Under the moniker “Original Jurisdiction for Probate Proceedings,” the Legislature
expressly identified the courts it selected to exercise such jurisdiction under its statutory
scheme. For counties “in which there is no statutory probate court or county court at law
exercising original probate jurisdiction, the county court has original jurisdiction of probate
proceedings.” TEX. ESTATES CODE § 32.002(a). For counties lacking a statutory probate
court but having a county court at law “exercising original probate jurisdiction, the county
court at law exercising original probate jurisdiction and the county court have concurrent
original jurisdiction of probate proceedings, unless otherwise provided by law.” Id. at
§ 32.002(b). Should the county have a statutory probate court, then “the statutory probate
court has original jurisdiction of probate proceedings.” Id. at § 32.002(c). So, we
encounter three kinds of court the Legislature specifically vested with “original jurisdiction
over probate courts”; none are Texas district courts. Furthermore, our search uncovered
no other provision of the Estates Code classifying a district court as a court exercising
“original jurisdiction of probate matters.” And though statute permits the transfer of
contested probate matters to district courts, see e.g., TEX. ESTATES CODE § 32.003(a)(2),
the latter’s authority to act arises from the transfer, which never occurred here.2
2 In a sense, the district court’s jurisdiction is derivative of the transferring court, as opposed to
original. And, that the Legislature specified when a district court may entertain a probate proceeding, see
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Now, that leads us to the first question regarding the nature of the claims asserted
by Dwayne and Paul. Were they “probate proceedings”? That category of proceedings
finds definition in the Estates Code, as well. They include, among other things, 1) the
probate of a will, TEX. ESTATES CODE § 31.001(1), 2) both the determination of heirship
and administration of community property, id. at § 31.001(3), 3) claims arising from an
estate’s administration and actions brought on those claims, id. at § 31.001(5), 4) any
matter related to the settlement, partition, or distribution of an estate, id. at § 31.001(6),
and 5) the construction of a will, id. at § 31.001(7). Harkening back to the claims of
Dwayne and Paul as described earlier, it takes little effort to see how each fits within the
scope of “probate proceedings.”
In short, the factual pieces to the jurisdictional puzzle created in § 32.001(a)
contradict the notion that Dwayne proved, as a matter of law, the 251st District Court’s
jurisdictional authority to resolve all the parties’ respective claims. To reiterate the terms
of our Texas Constitution, district courts have jurisdiction over all disputes “except in
cases where exclusive, appellate, or original jurisdiction may be conferred by this
Constitution or other law on some other court, tribunal, or administrative body.” TEX.
CONST. art. V, § 8. The Legislature, via statute, clearly and expressly created the statutory
means by which to dispose of a decedent’s property. It not only expressly defined
“probate proceedings” but also identified the three categories of courts which it expressly
vested with “original probate jurisdiction.”
ESTATES CODE §§ 32.003(a)(2), and the extent of its jurisdiction upon receiving that transfer, e.g. id. § 32.003(f), is telling. If a district court exercised original jurisdiction over probate proceedings via its presumptive jurisdiction, then there would be no reason for the legislature to enact § 32.003(a)(2) and § 32.003(f) as a means for specifying when they can act and the extent of their authority. The court could simply act per its presumptive jurisdiction and the scope it allowed.
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None of those categories include a district court. Moreover, the Legislature clearly
specified that those “probate proceedings” “must be filed and heard” in a court “exercising
original probate jurisdiction,” which a district court does not exercise under the expressed
statutory scheme. Thus, we cannot but conclude that the verbiage of § 32.001(a) of the
Estates Code triggers the exception found in article V, § 8 of the Constitution regarding
the limitation of a district court’s plenary and presumptive jurisdiction. So, Dwayne did
not prove, as a matter of law, that the 251st District Court had jurisdiction to issue the
final judgments upon which he based his claim of res judicata.
In arriving at our conclusion, we do not ignore Dwayne’s reference to In re Puig,
351 S.W.3d 301 (Tex. 2011) and authorities from sister courts of appeal. Puig involved
competing proceedings in a Fort Bend county court at law exercising probate jurisdiction
and a separate lawsuit initiated in a Webb County district court. The Webb County suit,
filed after the Fort Bend probate began, involved title to realty held in the estate
undergoing probate. The Supreme Court concluded that both courts enjoyed concurrent
jurisdiction over the controversy, though dominant jurisdiction lay with the Fort Bend court.
Puig, 351 S.W.3d at 305. Yet, the controlling statutes were those in existence before the
2009 enactment of the Estates Code, which the court noted. Id. at 304, n.1. This is
noteworthy because matters of probate jurisdiction generally are determined under the
law existing when the estate opened. A.H. Farms LLC v. Star Creek Co., No. 06-22-00081-CV, 2023 Tex. App. LEXIS 5716, at *13 (Tex. App.—Texarkana Aug. 2, 2023,
pet. denied) (mem. op.). So, Puig’s application of repealed statutes (e.g. §§ 4, 5, and 5A
of the Probate Code) does not necessarily control the outcome here. This is especially
so when, as here, the old and new statutes differ.
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For instance, § 32.001 substituted the word “must” for “shall.” That is, the new
provision says probate proceedings “must be filed and heard” by a court “exercising
original probate jurisdiction.” Id. On the other hand, its predecessor utilized the word
“shall” and identified particular courts assigned the task of adjudicating matters “regarding
probate and administrations.” See e.g., TEX. PROBATE CODE § 5(b), (c) & (d) (repealed).
As said earlier, “must” denotes a “condition,” such as a condition to lawfully adjudicating
a “probate proceeding.”3 It also replaces the word “shall,” which some have described
“as having no truly reliable meaning.” In J.L.W., 919 S.W.2d 841, 844 (Tex. App.—El
Paso 1996, no writ) (Barajas concurring). Furthermore, utilizing the phrase “exercising
original probate jurisdiction” to describe the entity capable of considering “probate
proceedings” (as in § 32.001(a)) as opposed to naming a particular level of court
(repealed TEXAS PROBATE CODE § 5) has another effect. It illustrates legislative intent to
have “probate proceedings” resolved by a court enjoying a specific type of jurisdiction.
Also of note in § 32.001 but missing from repealed sections 4, 5, and 5A of the
Probate Code is the legislative classification assigned probate matters. Per subsection
(d) of § 32.001, “[t]he administration of the estate of a decedent, from the filing of the
application for probate and administration, or for administration, until the decree of final
distribution and the discharge of the last personal representative, shall be considered as
one proceeding for purposes of jurisdiction. The entire proceeding is a proceeding
in rem.” TEX. ESTATES CODE § 32.001(d) (emphasis added). Coincidentally, we earlier
had occasion to construe, in Wood v. Dalhart R&R Mach. Works, Inc., 259 S.W.3d 229
3 And, in a setting where statute creates the remedy, “must” has been construed as a condition
limiting the exercise of jurisdiction. See Sims, 620 S.W.3d at 379 (stating that “[t]he term ‘must’ creates a condition precedent” and “[t]he ninety-day filing deadline [in the Whistleblower Act] is thus a jurisdictional statutory prerequisite to suit . . . .”).
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(Tex. App.—Amarillo 2008, no pet.), the jurisdictional effect of a rather identical clause
found elsewhere in the old Probate Code.
Wood involved a corporation’s effort to value and secure the return of corporate
stock owned by Brenda Wood. Id. at 229–30. The latter happened to be the ward in a
guardianship ordered by the Lubbock County Court. Id. at 230. After the enactment of
that proceeding, Dalhart R & R Machine Works commenced an action in Dallam County
to adjudicate the stock’s value and obtain its return. Id. Wood’s guardian moved to
dismiss the Dallam County suit for want of jurisdiction. Id. The trial court denied the
motion, and the issue of jurisdiction fell upon this court’s lap. Id.
In ultimately holding that the Dallam County trial court lacked jurisdiction, we
discussed the similarity between the statutory provisions controlling guardianships and
probate matters. Id. at 231. Our attention eventually turned to the language of § 604.
Section 604 provided that: “[f]rom the filing of the application for the appointment of a
guardian of the estate or person, or both, until the guardianship is settled and closed
under this chapter, the administration of the estate of a minor or other incapacitated
person is one proceeding for purposes of jurisdiction and is a proceeding in rem.”
TEX. PROB. CODE § 604 (emphasis added). Due to that statutory language, we found it
“difficult to read [§ 604] . . . as suggesting something other than that the court in which
the guardianship [was] initiated acquire[d] exclusive jurisdiction over the estate and
issues relating to its administration.” Id. at 232 (emphasis added). And, asserting claims
against the estate certainly related to its administration, or so our analysis led us to
conclude.
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No less is true about Dwayne’s attempt to deny Paul an interest in Sherri’s
testamentary estate or Paul attempting to vitiate Sherri’s will and remove Dwayne as
administrator. Each implicates the estate, its administration, and its disposition. And, no
one can reasonably deny the similarity between the words of § 604 and those of
§ 32.001(d). Both purport to envelope their subject proceedings from beginning to end.
Both categorize the entire enveloped proceeding, from beginning to end, as “one . . . for
purposes of jurisdiction.” And, both classify the enveloped proceeding as a
“proceeding[] in rem.” Given these similarities, we find it difficult to read § 32.001(a) as
intending something other than that the court in which the probate was initiated acquires
“exclusive jurisdiction” over the estate and issues relating to its administration, unless
transferred to another court for disposition under the Estates Code.
One other point. It concerns the Supreme Court’s own characterization of
§ 32.001(a) in Centerpoint. There, the court noted that the plaintiff alluded to certain
Estate Code provisions creating “exclusive jurisdiction.” Centerpoint, 629 S.W.3d at 155.
The Supreme Court’s example of one such provision was § 32.001(a) of the Estates
Code, the very provision at issue here. See Centerpoint, 629 S.W.3d at 155 (stating that
“[p]laintiffs point to several Estates Code provisions that confer exclusive original
jurisdiction on probate courts. For example, ‘[a]ll probate proceedings must be filed and
heard in a court exercising original probate jurisdiction,’ TEX. EST[ATES] CODE § 32.001(a)
. . . .”). That is another reason why we find Puig inapposite, as well as two intermediate
court opinions cited by Dwayne.
The two intermediate court opinions are Whitener v. Origin Bank, No. 14-22-00235-CV, 2023 Tex. App. LEXIS 598 (Tex. App.—Houston [14th Dist.] Jan. 31, 2023,
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no pet.) (mem. op.) and Carson v. Junior, No. 14-23-00050-CV, 2024 Tex. App. LEXIS
5987 (Tex. App.—Houston [14th Dist.] Aug. 20, 2024, no pet.) (mem. op.). Neither court
discussed the language of § 32.001(a). Neither considered § 32.001(d) or how it makes
probates in rem proceedings from start to end for jurisdictional purposes. And, neither
were issued subsequent to Centerpoint and its allusion to § 32.001(a) placing exclusive
jurisdiction in “courts exercising original probate jurisdiction.” Moreover, like Puig, both
seemingly depend on a faulty premise. The premise of which we speak begins with the
hypothesis that because a constitutional county court, county court at law, and statutory
county court all exercise original probate jurisdiction under certain circumstances, their
jurisdiction over probate proceedings is concurrent. The premise becomes faulty when
Puig, Whitener, and Carson fail to explain how the fact that those three courts may
exercise concurrent jurisdiction over probate proceedings allows a district court to
exercise the same jurisdiction. Again, the legislature described a category of courts
exercising original probate jurisdiction, and district courts are not within that statutory
description.
In sum, Dwayne failed to establish, as a matter of law, an element to his claim of
res judicata. He failed to prove that the 251st had jurisdiction to render the summary
judgments purporting to bar Paul from continuing his action in the Potter County Court at
Law No. 1. Given that, we reverse the latter’s judgment and remand the cause for further
action. However, our action should not be construed as an order voiding the 251st’s
judgment. No one below moved for such relief.
Brian Quinn
Senior Justice
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