N RE FROST NATIONAL BANK, FORMER EXECUTOR OF THE ESTATE OF ELENA SUESS KENEDY, DECEASED; FROST NATIONAL BANK AND PABLO SUESS,...

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NO.__________________
* * *
IN THE SUPREME COURT OF TEXAS
AUSTIN, TEXAS
* * *
IN RE FROST NATIONAL BANK, FORMER EXECUTOR OF THE ESTATE OF ELENA
SUESS KENEDY, DECEASED; FROST NATIONAL BANK AND PABLO SUESS,
TRUSTEES OF THE JOHN G. KENEDY, JR. CHARITABLE TRUST; AND
THE MISSIONARY OBLATE FATHERS OF TEXAS
* * *
PETITION FOR WRIT OF MANDAMUS
* * *
ADAMI, PAISLEY & APPELL, P.C.
J.G. Adami, Jr.
State Bar No. 00846500
601 East Main Street
P.O. Box 331
Alice, Texas 78333-0331
(361) 668-8101
(361) 668-8106 (telecopier)
OSBORNE & HELMAN, L.L.P.
Stephen Jody Helman
State Bar No. 09399500
Jeffrey T. Knebel
State Bar No. 11589000
301 Congress Avenue, Suite 1910
Austin, Texas 78701
(512) 542-2000
(512) 542-2011 (telecopier)
CROFTS & CALLAWAY, P.C.
Thomas H. Crofts, Jr.
State Bar No. 05099200
Jacqueline M. Stroh
State Bar No. 00791747
112 East Pecan, Suite 800
San Antonio, Texas 78205-1578
(210) 225-5551
(210) 225-7110 (telecopier)
CANALES & SIMONSON, P.C.
J. A. “Tony” Canales
State Bar No. 03737000
2601 Morgan Avenue
P. O. Box 5624
Corpus Christi, Texas 78465-5624
(361) 883-0601
(361) 884-7023 (telecopier)
ATTORNEYS FOR RELATORS, FROST NATIONAL BANK, FORMER EXECUTOR
OF THE ESTATE OF ELENA SUESS KENEDY, DECEASED; FROST NATIONAL
BANK AND PABLO SUESS, TRUSTEES OF THE JOHN G. KENEDY, JR.
CHARITABLE TRUST
RELATORS RESPECTFULLY REQUEST ORAL ARGUMENT
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AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
David R. Nelson
State Bar No. 00795556
Daniel McNeel Lane, Jr.
State Bar No. 00784441
300 Convent, Suite 1500
San Antonio, Texas 78205
(210) 281-7000
(210) 224-2035 (telecopier)
ATTORNEYS FOR RELATOR MISSIONARY OBLATE FATHERS OF TEXAS
RELATORS RESPECTFULLY REQUEST ORAL ARGUMENT
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IDENTITY OF PARTIES AND COUNSEL
1. Relators
Frost National Bank, Former Executor of the Estate of Elena Suess Kenedy,
Deceased, and Frost National Bank and Pablo Suess, Trustees Of The John G.
Kenedy, Jr. Charitable Trust
Defendants Below
Missionary Oblate Fathers of Texas
Defendant Below
2. Counsel for Relators
J.G. Adami, Jr.
Adami, Paisley & Appell, P.C.
601 East Main Street
P.O. Box 331
Alice, Texas 78333-0331
-and-
J. A. “Tony” Canales
Canales & Simonson, P.C.
2601 Morgan Avenue
P. O. Box 5624
Corpus Christi, Texas 78465-5624
-and-
Stephen Jody Helman
Jeffrey T. Knebel
Osborne & Helman, L.L.P.
301 Congress Avenue, Suite 1910
Austin, Texas 78701
-and-
Thomas H. Crofts, Jr.
Jacqueline M. Stroh
Crofts & Callaway
A Professional Corporation
112 East Pecan, Suite 800
San Antonio, Texas 78205-1578
Attorneys for Relators Frost National Bank, Former Executor of the Estate of
Elena Suess Kenedy, Deceased, and Frost National Bank and Pablo Suess,
Trustees Of The John G. Kenedy, Jr. Charitable Trust
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David R. Nelson
Daniel McNeel Lane, Jr.
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
300 Convent, Suite 1500
San Antonio, Texas 78205
Attorneys for Relator Missionary Oblate Fathers of Texas
3. Co-Relator
The John G. and Marie Stella Kenedy Memorial Foundation
Defendant Below
4. Counsel for Co-Relator
Richard L. Leshin
Bruce S. Hawn
Welder, Leshin & Mahaffey, L.L.P.
800 North Shoreline Blvd., Suite 300N
Corpus Christi, Texas 78401
-and-
Ray Chester
Thomas O. Barton
McGinnis, Loch ridge & Kilgore, L.L.P.
919 Congress Avenue, Suite 1300
Austin, Texas 78701
-and-
Richard J. Hatch, Sr.
The Hatch Law Firm
802 North Carancahua, Suite 665
Corpus Christi, Texas 78470
-and-
Jorge C. Rangel
Jon D. Brooks
The Rangel Law Firm, P.C.
615 Upper North Broadway, Suite 2020
Corpus Christi, Texas 78477
-and-
Mike Hatchell
Charles R. “Skip” Watson
Locke, Liddell & Sapp, L.L.P.
100 Congress Avenue, Suite 300
Austin, Texas 78701
Attorneys for Relator The John G. and Marie Stella Kenedy Memorial Foundation
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5. Respondent
The Honorable Guy Herman
Probate Court, Kenedy County
Travis County Courthouse
P.O. Box 1748
1000 Guadalupe Room 217
Austin, Texas 78767
Statutory Probate Court Judge Assigned to the County Court of Kenedy County
6. Real Party in Interest
Ann M. Fernandez
Plaintiff Below
7. Counsel for Real Party in Interest
J. Bonner Dorsey
2100 The 600 Bldg.
P.O. Box 1122
Corpus Christi, Texas 78403
Sam A. Westergren
615 Leopard Street, Suite 516A
Corpus Christi, Texas 78476
Mark Schwartz
DuBois, Bryant, Campbell & Schwartz, L.L.P.
P.O. Box 909
Austin, Texas 78767
8. Other Parties Below
The State of Texas
Intervenor Below
ExxonMobil Corporation/ExxonMobil Oil Corporation
Defendant Below
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9. Counsel for Other Parties Below
John W. Vinson
Assistant Attorney General
Charitable Trusts Division
P.O. Box 12548
Austin, Texas 78711-2548
Attorneys for Intervenor Below Attorney General
John Matthew Sjoberg
Jackson, Sjoberg, McCarthy & Wilson, L.L.P.
711 West 7th Street
Austin, Texas 78701
-and-
Shannon H. Ratliff
Ratliff Law Firm, P.L.L.C.
600 Congress Avenue, Suite 3100
Austin, Texas 78701
Attorneys for Defendant ExxonMobil Corporation/ExxonMobil Oil Corporation
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TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL.....................................................................iii
TABLE OF CONTENTS ..................................................................................................vii
INDEX OF AUTHORITIES..............................................................................................ix
STATEMENT OF THE CASE .........................................................................................xii
STATEMENT OF JURISDICTION................................................................................xiii
ISSUE PRESENTED .......................................................................................................xiv
Issue No. 1:
Whether the trial court clearly abused its discretion in granting the
Real Party’s request to exhume the remains of John G. Kenedy, Jr.
for invasive DNA testing and whether mandamus relief is available
to protect the burial of the remains before they are disinterred?
The Respondent’s order is void and constitutes a clear abuse of
discretion because Respondent lacks jurisdiction to rule on
exhumation, Fernandez lacks standing to pursue disinterment, both
Kenedy relatives and the cemetery property owner object to
exhumation, Fernandez has made no showing of a compelling
interest or necessity for exhumation, any merits determination
should come after a ruling on the bills of review themselves, and
there are available less intrusive and drastic means of resolving the
litigation as a whole...............................................................................................xiv
STATEMENT OF FACTS..................................................................................................1
ARGUMENT AND AUTHORITIES .................................................................................1
I.
The Statutory Probate Court Has No Jurisdiction.........................................1
A.
The Statutory Probate Court Has No Jurisdiction Over the
Bills of Review Filed to Attack Final Judgments of the 105th
District Court, and Exhumation Cannot Be Ordered Before
Those Final Judgments Are Set Aside...............................................1
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B.
The Statutory Probate Court Judge Has No Jurisdiction to
Grant an Exhumation Pursuant to Section 711.004 of the
Texas Health and Safety Code...........................................................5
II.
The Plaintiff Has No Standing to Request Exhumation At This Time.........6
III. Respondent Abused Its Discretion In Ordering a Determination on
the Merits Before Determining Success on the Bills of Review
Remaining in Its Court and Pending in the District Court............................7
IV. The Real Party Failed to Give the Required Notice......................................9
A.
Insufficient Notice of the Exhumation Was Given to the
Decedent’s Next of Kin......................................................................9
B.
Parties Identified in Section 711.004 Have Objected to
Fernandez’s Exhumation Request......................................................9
V.
The Respondent Clearly Abused His Discretion in Ordering
Exhumation .................................................................................................10
A.
Disinterment Is Highly Disfavored by Texas Courts and Is
Against Public Policy Without a Showing of Necessity or
Compelling Reason..........................................................................10
B.
The Real Party Has Made an Insufficient Showing of a
Compelling Reason or Necessity for Disinterment..........................11
C.
As a Result of Texas’ Attitude Toward Disinterment, Less
Extreme Measures Should be Tried First.........................................13
VI. Mandamus Is An Appropriate Remedy Here..............................................15
PRAYER ...........................................................................................................................15
VERIFICATION...............................................................................................................17
CERTIFICATE OF SERVICE..........................................................................................18
viii
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INDEX OF AUTHORITIES
Page
Cases
Acker v. Texas Water Comm’n,
790 S.W.2d 299 (Tex. 1990) .........................................................................................12
Amanda v. Montgomery,
877 S.W.2d 482 (Tex. App. -- Houston [1st Dist.] 1994, orig. proceeding)...................4
American Nat’l Ins. Co. v. B. Gonzalez & Co.,
72 S.W.2d 388 (Tex.Civ.App. -- San Antonio 1934, writ dism’d)...............................12
American Nat’l Ins. Co. v. Nuckols,
187 S.W. 497 (Tex.Civ.App. -- San Antonio 1916, no writ) ........................................12
Atkins v. Davis,
352 S.W.2d 801 (Tex.Civ.App. -- Fort Worth 1961, no writ) ....................................5, 6
Baker v. Goldsmith,
582 S.W.2d 404 (Tex. 1979) ....................................................................................7-8, 8
Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547 (Tex. 2000) .............................................................................................6
Burnett v. Surratt,
67 S.W.2d 1041 (Tex.Civ.App. -- Dallas 1934, writ ref’d) ..........................................10
Crown Central Petroleum Corp. v. Garcia,
904 S.W.2d 125 (Tex. 1995) (orig. proceeding) ...........................................................14
Curlin v. Curlin,
228 S.W. 602 (Tex.Civ.App. -- Amarillo 1921, no writ)..............................................11
Eddowes v. Oswald,
621 S.W.2d 843 (Tex. App. -- Fort Worth 1981, no writ) ..............................................6
First Nat'l Bank of Kerrville v. Hackworth,
673 S.W.2d 218 (Tex. App. -- San Antonio 1984, no writ)..........................................12
Fowlkes v. Fowlkes,
133 S.W.2d 241 (Tex.Civ.App. -- Galveston 1939, no writ)........................................12
Hildyard v. Fannel Studio,
547 S.W.2d 332 (Tex. App. -- Corpus Christi 1977, writ ref’d n.r.e.)............................8
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Holland v. Taylor,
153 Tex. 433, 270 S.W.2d 219 (1954)............................................................................6
Hoover v. Sims,
792 S.W.2d 171 (Tex. App. -- Houston [1st Dist.] 1990, writ denied)...........................9
In re Attorney General of Texas,
2001 WL 8547 (Tex. App. -- San Antonio 2001, orig. proceeding)...............................7
In re the John G. and Marie Stella Kenedy Memorial Foundation,
2004 WL 1335849 (Tex. App. -- Corpus Christi, June 16, 2004, orig. proceeding)......1
In re Southwestern Bell Tel. Co.,
35 S.W.3d 602 (Tex. 2000) (orig. proceeding) .............................................................15
Males v. Wimberly,
107 S.W.2d 466 (Tex.Civ.App. -- Dallas 1937, no writ)................................................8
McBride v. Clayton,
140 Tex. 71, 166 S.W.2d 125 (1942)............................................................................12
McCann v. Ward County,
423 S.W.2d 339 (Tex.Civ.App. -- El Paso 1967, writ ref’d n.r.e.) .................................8
McMahan v. Naylor,
855 S.W.2d 193 (Tex. App. -- Corpus Christi 1993, writ denied)..................................4
Samsel v. Diaz,
659 S.W.2d 143 (Tex. App. -- Corpus Christi 1983, no writ)...........................11, 12, 13
Schwartz v. Jefferson,
520 S.W.2d 881 (Tex. 1975) ...........................................................................................7
Spears v. Haas,
718 S.W.2d 756 (Tex. App. -- Corpus Christi 1986, orig. proceeding)..........................4
Tilton v. Marshall,
925 S.W.2d 672 (Tex. 1996) .........................................................................................14
TransAmerican Natural Gas Corp. v. Powell,
811 S.W.2d 913 (Tex. 1991) .........................................................................................14
Trevino v. Turcotte,
564 S.W.2d 682 (Tex. 1978) .........................................................................................14
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Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) (orig. proceeding) ...........................................................15
Statutes
T
EX
. G
OV
’
T
C
ODE
§ 22.002(a) (Vernon 2004) .................................................................xii
T
EX
. G
OV
’
T
C
ODE
§ 311.012(b) (Vernon 1998).................................................................9
T
EX
. H
EALTH
& S
AFETY
C
ODE
§ 711.004 (Vernon Supp. 2004).............................viii, 5, 9
T
EX
. H
EALTH
& S
AFETY
C
ODE
§ 711.004(a)(5) (Vernon Supp. 2004) ..............................9
T
EX
. H
EALTH
& S
AFETY
C
ODE
§ 711.004(c) (Vernon Supp. 2004)...................................5
T
EX
. P
ROB
. C
ODE
§ 31.........................................................................................................6
Other Authorities
Epitaph of William Shakespeare, as quoted in J. Bartlett,
Familiar Quotations, p. 250 (15th ed. 1980) .................................................................10
Rules
T
EX
. R. C
IV
. P. 11 ................................................................................................................4
T
EX
. R. E
VID
. 801(d) .........................................................................................................12
T
EX
. R. E
VID
. 802..............................................................................................................12
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STATEMENT OF THE CASE
Nature of the Case:
The Real Party in Interest claims that she is the nonmarital
daughter of John G. Kenedy, Jr., and she is attempting to reopen
the Estates of John G. Kenedy, Jr., Elena Suess Kenedy, and
Sarita Kenedy East. As a part of this effort, Plaintiff has filed
several bill of review and other proceedings in the 105th District
Courts of Nueces and Kenedy Counties, as well as several bill of
review proceedings in the County Court of Kenedy County. (CR
Tabs 14 through 19, 21, 22,43, 47, 48, 49, 124, and 125)
1
Trial court:
The Honorable Guy Herman, presiding judge of the Travis
County Probate Court No. 1, sitting by appointment in the
County Court of Kenedy County. (CR Tab 33) Judge J. A.
Garcia, Jr. is the permanent judge of the Kenedy County court.
Trial Court’s
Disposition:
Respondent signed several orders leading up to its June 18, 2004
order for an exhumation of the remains of John G. Kenedy, Jr. to
occur on July 10, 2004. (CR Tabs 80 at Exhibit 2, 90, 104, 105,
106, 123)
Parties in the
Court of Appeals:
The parties’ designations remain the same.
Court of Appeals
Disposition:
The Thirteenth Court of Appeals denied Relators’ Petition for
Writ of Mandamus, as well as the petition of Co-Relator the John
G. and Marie Stella Kenedy Memorial Foundation on Tuesday,
July 6, 2004. (CR Tab 131)
Requested Disposition
from This Court:
Relators seek a writ of mandamus directed to Respondent to
withdraw his orders pertaining to exhumation, including his most
recent order of June 18, 2004; and to deny the Real Party’s
motion to exhume or to refrain from ruling on the motion to
exhume for the present time.
1
In accordance with Texas Rule of Appellate Procedure 52.7, Relators have filed with this petition sworn and
uncontroverted copies of the pleadings and orders. This record will be cited “(CR Tab _____).” There is also a
reporter’s record of the hearing on Plaintiff’s Motion to Exhume, which will be cited “(RR _____),” and exhibits to
that record which will be cited by their exhibit designation at the time of the hearing, e.g., as P’s (Plaintiff’s) X ___,
KT’s (Kenedy Trust’s) X ___, and KF’s (Kenedy Foundation’s) X ___.
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STATEMENT OF JURISDICTION
This Court has jurisdiction to grant the requested relief pursuant to Texas
Government Code § 22.002, which provides that the Supreme Court may issue “all writs .
. . of mandamus agreeable to the principles of law” against “a statutory county court
judge, a statutory probate court judge, a district judge, a court of appeals or a justice of a
court of appeals, or any officer of state government except the governor, the court of
criminal appeals, or a judge of the court of criminal appeals.” T
EX
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OV
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T
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§
22.002(a) (Vernon 2004).
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ISSUE PRESENTED
Issue No. 1:
Whether the trial court clearly abused its discretion in granting the Real Party’s request to
exhume the remains of John G. Kenedy, Jr. for invasive DNA testing and whether
mandamus relief is available to protect the burial of the remains before they are
disinterred?
The Respondent’s order is void and constitutes a clear abuse of discretion because
Respondent lacks jurisdiction to rule on exhumation, Fernandez lacks standing to pursue
disinterment, both Kenedy relatives and the cemetery property owner object to
exhumation, Fernandez has made no showing of a compelling interest or necessity for
exhumation, any merits determination should come after a ruling on the bills of review
themselves, and there are available less intrusive and drastic means of resolving the
litigation as a whole.
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STATEMENT OF FACTS
The factual history of this case involves several probate proceedings and a number
of different lawsuits that span a period of more than fifty years. In the petition filed with
the Thirteenth Court of Appeals, the statement of facts alone comprised thirteen pages.
As a result, Relators have attached a copy of an opinion in a related mandamus and refer
this Court to its factual summary. See In re the John G. and Marie Stella Kenedy
Memorial Foundation, 2004 WL 1335849 (Tex. App. -- Corpus Christi, June 16, 2004,
orig. proceeding). In a nutshell, the Real Party has filed several bills of review -- some in
district court and some in county court -- all of which sought to challenge the long-
finalized estate distributions of John G. Kenedy, Jr., his sister Sarita Kenedy East, and his
wife Elena Suess Kenedy on the basis that Ann Fernandez is the nonmarital daughter of
John G. Kenedy, Jr. (CR Tabs 14 through 19, 21, 22,43, 47, 48, 49, 124, and 125)
In the decision referenced above, the Thirteenth Court conditionally granted
mandamus relief because Respondent lacked the authority to transfer the bill of review
proceedings that were originally filed in the 105th Judicial District Court.
2
(CR Tab 115)
Before, during, and after the time that the jurisdictional mandamus was pending, the Real
Party sought an exhumation of the remains of John G. Kenedy, Jr. for DNA paternity
testing. (CR Tab 67, 69, 70, 71, 72, 74, 78, and 80) By order dated June 18, 2003, the
trial court ruled that it had jurisdiction to consider Plaintiff’s exhumation motion. (CR
2
Please note that Relators are not challenging that ruling in this mandamus action. Two separate mandamus actions
were filed with the Thirteenth Court of Appeals -- one challenging the statutory probate court judge’s ability to
transfer bills of review pending in the 105th district court and one challenging the same judge’s order of
exhumation. Relators received favorable relief from the Thirteenth Court on the initial mandamus, but Relators’
exhumation mandamus was denied by that court yesterday. This mandamus involves the exhumation order.
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Tab 80 at Exhibit 2) On November 5, 2003, Respondent held a hearing on the motion;
the parties submitted post-hearing briefing; and, on January 29, 2004, Respondent
granted the motion. (CR Tabs 82, 83, 84, 88, 89, and 90; RR - 11/05/2003)
Relators followed with a reconsideration request of Respondent’s exhumation
decision, as well as a request for stay of the exhumation. (CR Tabs 91 and 96) However,
Respondent signed a Supplemental Order of Exhumation on February 6, 2004, setting
February 28, 2004, as the date for the exhumation of John G. Kenedy, Jr. (CR Tabs 92,
93, 97 through 106) On the afternoon of February 6, 2004, Relators moved for and
ultimately received immediate temporary relief in Cause No. 13-03-00696-CV -- the
jurisdiction mandamus referenced above. (CR Tab 107 through 111) The Thirteenth
Court issued a stay as to all proceedings pending before Respondent. (CR Tab 113)
However, in conjunction with the issuance of its opinion in the jurisdiction
mandamus on Wednesday, June 16, 2004, the Thirteenth Court lifted its prior stay of the
proceedings before Respondent. (CR Tab 115) Instead of recognizing the main thrust of
the Court’s previous stay order and the mandamus opinion determining that Respondent
had no authority to preside over the potentially determinative bill of review proceedings,
the Real Party latched onto the last sentence of the opinion lifting the stay and
immediately forwarded correspondence to Respondent requesting a new date for
exhumation and including a proposed order. (CR Tabs 113, 115, and 119) Upon
prompting by Relators, Respondent scheduled a hearing on two hours notice for 11:00
a.m. on Friday, June 18, 2004, and ordered that the exhumation of John G. Kenedy, Jr.’s
remains will occur on July 10, 2004. (CR Tabs 120, 121, 122, and 123; RR - 06/18/2004)
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In Respondent’s words, because he had already entered the exhumation order, the
exhumation was “going to happen.” (RR - 06/18/2004 at 10) This mandamus follows.
ARGUMENT AND AUTHORITIES
I.
The Statutory Probate Court Has No Jurisdiction
A.
The Statutory Probate Court Has No Jurisdiction Over the Bills of
Review Filed to Attack Final Judgments of the 105th District Court,
and Exhumation Cannot Be Ordered Before Those Final Judgments
Are Set Aside
The keys to the conclusion of the multiple bills of review filed by the Real Party in
Interest Ann Fernandez are the judgments in the will construction suit concluding that
John G. Kenedy, Jr. died testate as to all of his property and in the will contest suit
concluding that Sarita K. East died testate as to all of her property. (CR Tab 3 at 93-95,
and Tabs 8 and 9) Thus, Fernandez’s claims hinge upon her challenge that seeks to set
aside those final judgments and upon her allegations that John Kenedy’s will was
ineffective to dispose of his real property and that the will of Sarita K. East admitted to
probate in 1961 is invalid. In addition, even though Fernandez has not challenged the
1948 will and codicil of Sarita K. East, which were not admitted to probate, she would
need to set that will and codicil aside as well. Given these final judgments, even if Ann
Fernandez were an heir, she would not be entitled to recover anything.
As the Thirteenth Court has determined, Respondent had no jurisdiction to
unilaterally transfer the bills of review, filed under Cause Nos. 35 and 85, nor did he have
jurisdiction to transfer the final judgment in Cause No. 101,209-D -- all of the foregoing
being final judgments from the 105th district court of Kenedy and Nueces Counties. (CR
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Tab 115) Given the trial court’s lack of jurisdiction to resolve the key cases -- the will
construction and will contest bills of review -- Respondent abused his discretion in
putting the proverbial cart before the horse and granting a motion to exhume in the bill of
review proceedings challenging the administration of the wills of John G. Kenedy, Jr. and
his wife, Elena Suess Kenedy. In the absence of a valid transfer of the district court
cases, there is no basis for jurisdiction to order the exhumation. Case law is clear that
Respondent had no authority to order an exhumation unless and until the final judgments
in Cause No. 35 or Cause No. 101,209-D are set aside -- an act solely within the
jurisdiction of the 105th District Court. Because Mr. Kenedy and Mrs. East both died
testate, paternity and heirship are not issues ripe for determination unless and until the
bills of review are granted and those final judgments are set aside. See, e.g., Amanda v.
Montgomery, 877 S.W.2d 482, 487 (Tex. App. -- Houston [1st Dist.] 1994, orig.
proceeding) (holding that paternity testing could not be ordered before petitioner proved
prima facie case for bill of review); McMahan v. Naylor, 855 S.W.2d 193, 194-95 (Tex.
App. -- Corpus Christi 1993, writ denied) (issue of intestacy should be determined before
heirship); Spears v. Haas, 718 S.W.2d 756, 758 (Tex. App. -- Corpus Christi 1986, orig.
proceeding) (holding that serology testing to determine paternity could not be ordered
until petitioner proved prima facie case for bill of review).
Given these jurisdictional issues, a request was made for Respondent to delay
ruling on the exhumation pending the Thirteenth Court’s decision in the jurisdictional
appeal and mandamus; Respondent declined. (CR Tab 91; CR Tab 130 at 15, 21-22)
Relators also attempted to enter into a Rule 11 agreement with opposing counsel staying
4
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the exhumation until the resolution of Respondent’s jurisdiction, to no avail. (CR Tab
94) Ultimately, Relators obtained a stay from the Thirteenth Court -- a stay that
expressly noted that any action taken by Respondent in the consolidated cause, which
included matters not part of the jurisdiction mandamus, “may have an effect on the
matters currently pending before us.” (Tabs 108 and 113) Despite that language and the
Thirteenth Court’s holding that Respondent had no jurisdiction over the potentially
determinative bills of review, Respondent persisted in signing another exhumation order
as soon as the February 9, 2004 stay was lifted. (CR Tabs 115 and 123)
B.
The Statutory Probate Court Judge Has No Jurisdiction to Grant an
Exhumation Pursuant to Section 711.004 of the Texas Health and
Safety Code
Section 711.004 governs the removal of remains interred in a cemetery and is the
authority under which Real Party Fernandez moved to exhume the remains of John G.
Kenedy, Jr. However, section 711.004 does not vest Respondent with the authority to
grant the kind of relief Real Party Fernandez sought below. In Atkins v. Davis, 352
S.W.2d 801, 802 (Tex.Civ.App. -- Fort Worth 1961, no writ), the court explained that
only the district court has jurisdiction to determine controversies concerning the right to
disinter and remove a dead body, and no other court has been given this jurisdiction. The
Atkins court was confronted with the same argument made by Fernandez below, i.e., that
the county court has jurisdiction to order an exhumation because what is now section
711.004(c) allows a county court to give permission for exhumation provided that the
other requirements of the statute are met. 352 S.W.2d at 802. However, the Atkins court
concluded that this language did not confer jurisdiction on the county court to resolve
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disputes regarding whether one has shown a compelling interest for disinterment. Id.
The Real Party brought forward no Texas authority to the contrary, and a writ of
mandamus should issue to Respondent to rescind his void order of exhumation.
II.
The Plaintiff Has No Standing to Request Exhumation At This Time
Fernandez lacks standing to seek an exhumation. “It is well settled that for a
person to maintain an action in court, it must be shown that he has a justiciable interest in
the subject matter in litigation, either in his own right or in a representative capacity.”
Eddowes v. Oswald, 621 S.W.2d 843, 846 (Tex. App. -- Fort Worth 1981, no writ), citing
Holland v. Taylor, 153 Tex. 433, 270 S.W.2d 219 (1954). “Standing is a prerequisite to
subject-matter jurisdiction, and subject-matter jurisdiction is essential to a court’s power
to decide a case.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000).
Here, Fernandez has no justiciable interest in the exhumation and DNA analysis of
Kenedy’s remains for a simple reason -- Texas courts have specifically held that where a
party cannot succeed on a bill of review to set aside a prior estate distribution, the party is
not a person interested in the estate and, therefore, has no standing to maintain litigation
involving the estate. Trevino v. Turcotte, 564 S.W.2d 682 (Tex. 1978); see also T
EX
.
P
ROB
. C
ODE
§ 31 (giving only a “person interested” the right to assert a statutory bill of
review to set aside or modify probate order).
Both the Kenedy Will Construction Suit and the East Will Contest Suit were
concluded by final judgments, both of which adjudicated that the decedents died testate
as to the entirety of their estates. Until and unless those final judgments are set aside, the
identity of Fernandez’s biological father or her status as an heir is a non-issue. Thus,
6
Page 21
Fernandez would have to win her bill of review cases and set aside the existing final
judgments before she would have any standing to pursue the exhumation of John G.
Kenedy, Jr.’s body. The mere filing of Fernandez’s bill of review as to that judgment
does not set aside or supersede the judgment. Schwartz v. Jefferson, 520 S.W.2d 881,
889 (Tex. 1975). At the very least, she must make a prima facie showing of success.
Respondent’s correspondence of January 29, 2004 addresses standing, but twists
the Trust’s argument on its head. (CR Tab 88) In order to confer standing on Fernandez,
Judge Bañales of the 105th District Court would have to address the defenses to
Fernandez’s bills of review pending in his court before either he or anyone else could
address paternity -- not the other way around. (RR -- 11/05/2003 at 113, 135-36, 145-46)
See, e.g., In re Attorney General of Texas, 2001 WL 8547, *2 (Tex. App. -- San Antonio
2001, orig. proceeding) (not designated for publication) (holding that trial court could not
order paternity testing if bill of review barred as matter of law). As a result, Respondent
had no subject matter jurisdiction to order the exhumation.
III.
Respondent Abused Its Discretion In Ordering a Determination on the Merits
Before Determining Success on the Bills of Review Remaining in Its Court
and Pending In the District Court
Even if the bar to Respondent’s action is not jurisdictional, the Supreme Court has
explained the proper procedural steps for resolving bills of review. In order to be
successful upon a bill of review, a complainant must first allege and prove the following:
(1) a meritorious defense to the cause of action alleged to support the judgment, (2)
which he was prevented from making by the fraud, accident, or wrongful act of the
opposite party, (3) unmixed with any fault or negligence of his own. Baker v. Goldsmith,
7
Page 22
582 S.W.2d 404, 406-07 (Tex. 1979). Only after a proper pleading has been supported
by prima facie proof, and assuming no other legal bars -- a point below -- does it then
become necessary to have a “‘full-blown’ examination of the merits.” Id. at 408.
Respondent has abused its discretion in proceeding first with what amounts to a
merits inquiry before determining whether the Real Party could ever succeed on her bills
of review filed to challenge the probate proceedings for John G. Kenedy, Jr., Sarita K.
East, and Elena Suess Kenedy and before the district court has made any determination of
whether the Real Party can succeed on her bills of review filed to challenge the will
contest and will construction judgments. Respondent has ordered an exhumation so that
genetic testing can be done in an effort to determine whether John G. Kenedy, Jr. is
Fernandez’s biological father. Paternity is an issue that relates to the merits of Ann
Fernandez’s underlying claims against the estates; however, Respondent has taken no
steps to first allow for the determination of the viability of Fernandez’s bills of review.
Such a clear abuse of discretion warrants mandamus relief.
This is particularly so where the Real Party has failed to verify her bills of review -
- a requirement for their success and a requirement to confer authority upon the trial court
to grant any relief whatsoever. See Males v. Wimberly, 107 S.W.2d 466, 467
(Tex.Civ.App. -- Dallas 1937, no writ); Hildyard v. Fannel Studio, 547 S.W.2d 332, 338
(Tex. App. -- Corpus Christi 1977, writ ref’d n.r.e.); McCann v. Ward County, 423
S.W.2d 339, 339-40 (Tex.Civ.App. -- El Paso 1967, writ ref’d n.r.e.). Though an
affidavit executed by Ray Fernandez, the Real Party’s grandson, is attached, that affidavit
is defective because it does not swear that the facts alleged in the bills of review are true
8
Page 23
nor that the trial court committed a “substantial error” in entering its final judgments, see
Hoover v. Sims, 792 S.W.2d 171, 173 (Tex. App. -- Houston [1st Dist.] 1990, writ
denied). Without a verification, the minimum requisite proof to sustain a bill of review is
missing -- a defect that precludes Respondent from reaching past the bills of review into a
determination of the merits of Plaintiff’s claims. Mandamus should be granted.
IV. The Real Party Failed to Give the Required Notice
A.
Insufficient Notice of the Exhumation Was Given to the Decedent’s
Next of Kin
Fernandez moved for exhumation pursuant to section 711.004 of the Texas Health
and Safety Code. That statute mandates, prior to exhumation, notice to and consent by
the “adult person in the next degree of kinship in the order named by law to inherit the
estate of the decedent.” T
EX
. H
EALTH
& S
AFETY
C
ODE
§ 711.004(a)(5) (Vernon Supp.
2004). Per the terms of the statute, the Plaintiff was required to give notice to Robert
Turcotte and Elizabeth Turcotte -- siblings in the same degree of heirship to John G.
Kenedy, Jr. (RR - 11/05/2003 at 99-100; KT’s X 4) See T
EX
. G
OV
’
T
C
ODE
§ 311.012(b)
(Vernon 1998) (explaining that the singular includes the plural). The record
demonstrates that Elizabeth Turcotte did not receive notice of the exhumation
proceedings, and the record contains no evidence that Robert Turcotte ever received the
notice that the Plaintiff sent. (RR - 11/05/2003 at 42-43; P’s X 3, 4)
B.
Parties Identified in Section 711.004 Have Objected to Fernandez’s
Exhumation Request
In any event, multiple parties object to the exhumation. One of the trustees of the
John G. Kenedy, Jr. Charitable Trust is a nephew by marriage of John G. Kenedy, Jr. and
9
Page 24
a blood relative of Kenedy’s wife, Elena Suess Kenedy. He has the standing to contest
the exhumation of his uncle, and objects to it. (RR - 11/05/2003 at 129-30) Similarly,
Lee Lytton, III, a third cousin by blood of John G. Kenedy, Jr. and a relative of many
persons buried at the Kenedy family cemetery, testified at the hearing on Plaintiff’s
Motion to Exhume that he opposes the exhumation. (RR - 11/05/2003 at 95-99, 103, ;
KT’s X 3, 4) Moreover, the Trust and its beneficiaries, successors to the interest of John
G. Kenedy, Jr.’s wife, object to the exhumation. (RR - 11/05/2003 at 129-30) And
finally, the Missionary Oblate Fathers of Texas, who own the property and whose
consent must be obtained pursuant to section 711.004, lodged an objection to the
exhumation of Kenedy’s remains. (RR - 11/05/2003 at 153-54) Under the facts of this
case, there is no support for any action by Fernandez to remove the remains.
V.
The Respondent Clearly Abused His Discretion in Ordering Exhumation
A.
Disinterment Is Highly Disfavored by Texas Courts and Is Against
Public Policy Without a Showing of Necessity or Compelling Reason
Good friend, for Jesus’ sake forbear
To dig the dust enclosed here;
Blest be the man that spares these stones,
And curst be he that moves my bones.
3
“[W]e believe the imprecation on the tomb at Stratford ‘cursed be he that moves
my bones’ expresses the universal sentiment of humanity against profanation.” Burnett v.
Surratt, 67 S.W.2d 1041, 1041 (Tex.Civ.App. -- Dallas 1934, writ ref’d). Setting aside
the jurisdictional problems with Respondent’s order of exhumation, the trial court clearly
3
Epitaph of William Shakespeare, as quoted in J. Bartlett, Familiar Quotations, p. 250 (15th ed. 1980).
10
Page 25
abused its discretion because, considering the extreme nature of exhumation, the trial
court failed to require Fernandez to demonstrate that the exhumation was necessary and
failed to consider less intrusive alternatives for resolving the litigation.
“[T]here is a public policy against disinterment.” Samsel v. Diaz, 659 S.W.2d
143, 144 (Tex. App. -- Corpus Christi 1983, no writ); see also Curlin v. Curlin, 228 S.W.
602, 603-04 (Tex.Civ.App. -- Amarillo 1921, no writ). As a result, a party must
demonstrate a compelling reason or necessity for disinterment. Samsel, 659 S.W.2d at
144. The reason that Texas treats exhumation as available only upon a showing of
necessity or a compelling reason therefore is exemplified by the Plaintiff’s proposed
procedure in this case -- the goal being to remove with pliers as many teeth as possible
and to remove with a saw at least twelve inches of each leg bone. (CR Tab 67; RR -
11/05/2003 at 29, 32-35, 40) Given the abhorrent nature of the procedure and the
centuries-old public policy against it, exhumation must be a last resort in resolving
contested litigation, not a threshold discovery device ordered on the basis of meager
allegations of heirship brought forth by the Plaintiff. As Relators argued, “[exhumation]
shouldn’t be done lightly, it shouldn’t be done unless it’s absolutely necessary, and [it
should be done] only as a last resort.” (CR Tab 130 at 5)
B.
The Real Party Has Made an Insufficient Showing of a Compelling
Reason or Necessity for Disinterment
The statutory probate court determined that even though, under the common law, a
showing of necessity or compelling reason was a condition precedent to exhume an
interred body, such a showing was unnecessary under the current law. (CR Tab 88)
11
Page 26
However, section 711.004 of the Texas Health and Safety Code, has not altered the
common law in this respect because the legislature has expressed no such intent. See,
e.g., Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990); McBride v.
Clayton, 140 Tex. 71, 166 S.W.2d 125, 128 (1942); First Nat’l Bank of Kerrville v.
Hackworth, 673 S.W.2d 218, 221 (Tex. App. -- San Antonio 1984, no writ).
As a result of courts’ reluctance to order the disturbance of a deceased’s remains,
courts must first make sure that the exhumation will solve an important question and also
satisfy themselves that less intrusive alternatives to exhumation exist. See Samsel, 659
S.W.2d at 144 (exhumation permitted only upon showing of necessity or compelling
reasons); American Nat’l Ins. Co. v. B. Gonzalez & Co., 72 S.W.2d 388, 389
(Tex.Civ.App. -- San Antonio 1934, writ dism’d) (explaining that exhumation must serve
useful purpose); American Nat’l Ins. Co. v. Nuckols, 187 S.W. 497, 499 (Tex.Civ.App. --
San Antonio 1916, no writ) (same). Thus, “[e]xcept in cases of necessity or for laudable
purposes the policy of the law is that the sanctity of the grave should be maintained, and
that a body suitably buried should remain undisturbed.” Fowlkes v. Fowlkes, 133 S.W.2d
241, 242-43 (Tex.Civ.App. -- Galveston 1939, no writ).
Respondent held that the allegation of paternity constitutes a necessity or
compelling reason for exhumation. However, the allegation of paternity is supported by
one thing only -- the declaration of Maria Goates, the Plaintiff’s mother, a couple of
months before she died that her grandson “looked like Johnny.” First, that statement
constitutes inadmissible hearsay. (RR - 11/05/2003 at 156) T
EX
. R. E
VID
. 801(d), 802.
In any event, as explained in the Trust’s Motion for Reconsideration on Motion and
12
Page 27
Order to Exhume, the nursing home records of Maria Goates, the individual on whose
statement this entire litigation rests, was declared incompetent and appointed a guardian,
eight years before she made the statement in question. (CR Tab 91 at Exhibits G and H)
It is a clear abuse of discretion for the trial court to order an exhumation of John G.
Kenedy, Jr.’s remains based on nothing more than the statement of a demented individual
that her grandson “looked like Johnny.” Based on that evidence, the allegation of
paternity does not present a compelling reason or necessity.
Even if Ray Fernandez’s hearsay account of Goates’ statement is presumed
relevant and admissible, there is no guarantee that the exhumation will answer the
question of paternity. The Real Party’s expert could not offer any information regarding
the condition of John G. Kenedy, Jr.’s remains, though he conceded that it was not
customary to embalm people who died in Mexico in the late 1940’s, as did John G.
Kenedy, Jr. (RR - 11/05/2003 at 27, 33) However, the condition of the remains is a key
factor in being able to extract DNA successfully. (RR - 11/05/2003 at 17-18) The oldest
DNA ever extracted by the Real Party’s expert was from remains that were 12 years old.
(RR - 11/05/2003 at 15) The remains at issue in this case are more than 50 years old.
C.
As a Result of Texas’ Attitude Toward Disinterment, Less Extreme
Measures Should be Tried First
Relators have proposed less intrusive and less drastic alternatives for resolving the
litigation as a whole. See Samsel, 659 S.W.2d at 144 (explaining that court should
consider less drastic alternatives to exhumation). In fact, the use of less drastic or
intrusive procedures to determine litigation issues is not unique to the exhumation
13
Page 28
context. See, e.g., Crown Central Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex.
1995) (orig. proceeding); TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913,
917 (Tex. 1991) (orig. proceeding); Tilton v. Marshall, 925 S.W.2d 672, 683 (Tex. 1996).
Here, the trial court has failed to consider less intrusive methods -- namely
allowing Judge Bañales the opportunity to resolve the litigation as a whole, with a stay of
all other proceedings until those suits are resolved. Respondent did not even consider the
option of resolving the litigation currently pending in his own court. As explained above,
Fernandez has to prove a prima facie case on those bills of review, which she cannot do,
particularly if Relators have valid defenses. In either event, the will construction suit has
to be determined first, which would necessarily involve a consideration of the Relators’
motions for summary judgment -- and, for the purposes of those summary judgment
motions, Relators have assumed that Ann M. Fernandez was the daughter of John G.
Kenedy, Jr. (CR Tabs 68, 79, 85; RR - 11/05/2003, KT’s X 5, 6, and 7)
A short delay in the exhumation would not have any significant impact on the
ability to do DNA testing, in light of the fact that John G. Kenedy, Jr.’s remains have
been buried for more than 50 years. (RR - 11/05/2003 at 18) In fact, Respondent had
already set a scheduling order for resolution of the summary judgment filings before he
ruled on the exhumation. (CR Tab 91 at Exhibit A) Respondent should have continued
down that path, or now should allow the 105th district court to proceed, because Relators
established their entitlement to summary judgment as a matter of law, disregarding the
relationship issue. Respondent never set the motions for hearing, despite the movants’
repeated requests. (RR - 11/05/2003 at 48-49, 109-12, 135) Because there is no
14
Page 29
prejudice in delaying the exhumation, if the summary judgments are not granted, then the
exhumation can proceed at a later date. But the motions must be heard first.
VI. Mandamus Is An Appropriate Remedy Here
Mandamus is available to correct a trial court’s clear abuse of discretion when no
adequate appellate remedy exists. Walker v. Packer, 827 S.W.2d 833, 839-44 (Tex.
1992) (orig. proceeding). Where, as here, the order is void because it was entered by a
court that lacked jurisdiction, the Relator need not show an inadequate remedy by appeal.
In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).
Thus, mandamus is available to Relators to challenge Respondent’s void orders.
In any event, there is no adequate remedy when the trial court orders something
that cannot be undone by virtue of an appeal. An appeal is considered to be inadequate if
the appellate court would not be able to cure the trial court’s error. Walker, 827 S.W.2d
at 840. This case fits squarely within that principle -- once John G. Kenedy, Jr.’s remains
are exhumed, the right to contest the court’s exhumation order will be lost. Relators have
no adequate appellate remedy because the appellate court cannot cure the trial court’s
erroneous exhumation of the remains of John G. Kenedy, Jr. -- once he has been
exhumed, there is no magic trick that the court of appeals can muster to turn back time
and prevent the exhumation from having occurred nor undo the mutilation and
disturbance forever caused to his remains.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Relators Frost National Bank,
Former Executor of the Estate of Elena Suess Kenedy, Deceased; Frost National Bank
15
Page 30
and Pablo Suess, Trustees Of The John G. Kenedy, Jr. Charitable Trust; and The
Missionary Oblate Fathers Of Texas respectfully pray that this Court grant their Petition
for Writ of Mandamus; direct the trial court to withdraw its orders of June 18, 2003,
January 29, 2004, February 6, 2004, February 6, 2004, and June 18, 2004; direct
Respondent to deny the motion to exhume for lack of jurisdiction/standing, or, in the
alternative, direct Respondent to refrain from ruling on the motion at this time; and grant
Relators such other and further relief to which they are entitled.
Respectfully submitted,
ADAMI, PAISLEY & APPELL, P.C.
J.G. Adami, Jr.
State Bar No. 00846500
601 East Main Street
P.O. Box 331
Alice, Texas 78333-0331
(361) 668-8101
(361) 668-8106 (telecopier)
OSBORNE & HELMAN, L.L.P.
Stephen Jody Helman
State Bar No. 09399500
Jeffrey T. Knebel
State Bar No. 11589000
301 Congress Avenue, Suite 1910
Austin, Texas 78701
(512) 542-2000
(512) 542-2011 (telecopier)
CROFTS & CALLAWAY, A P.C.
Thomas H. Crofts, Jr.
State Bar No. 05099200
Jacqueline M. Stroh
State Bar No. 00791747
112 East Pecan, Suite 800
San Antonio, Texas 78205-1578
(210) 225-5551
(210) 225-7110 (telecopier)
CANALES & SIMONSON, P.C.
J. A. “Tony” Canales
State Bar No. 03737000
2601 Morgan Avenue
P. O. Box 5624
Corpus Christi, Texas 78465-5624
(361) 883-0601
(361) 884-7023 (telecopier)
ATTORNEYS FOR RELATORS, FROST NATIONAL BANK, FORMER EXECUTOR
OF THE ESTATE OF ELENA SUESS KENEDY, DECEASED; FROST NATIONAL
BANK AND PABLO SUESS, TRUSTEES OF THE JOHN G. KENEDY, JR.
CHARITABLE TRUST
By:__________________________________
J. G. Adami, Jr.
16
Page 31
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
David R. Nelson
State Bar No. 00795556
Daniel McNeel Lane, Jr.
State Bar No. 00784441
300 Convent, Suite 1500
San Antonio, Texas 78205
(210) 281-7000
(210) 224-2035 (telecopier)
ATTORNEYS FOR RELATOR MISSIONARY OBLATE FATHERS OF TEXAS
By: __________________________________
David R. Nelson
VERIFICATION
STATE OF TEXAS
§
§
COUNTY OF BEXAR
§
BEFORE ME, the undersigned Notary Public, on this day personally appeared
Jacqueline M. Stroh, who, being by me duly sworn, on oath deposed and said that she is
an attorney for Relators Frost National Bank, Former Executor of the Estate of Elena
Suess Kenedy, Deceased, and Frost National Bank and Pablo Suess, Trustees of The John
G. Kenedy, Jr. Charitable Trust, that she is authorized to make this affidavit, that she has
read the foregoing Petition for Writ of Mandamus, and that the facts stated therein are
true and correct.
Jacqueline M. Stroh
SUBSCRIBED AND SWORN TO BEFORE ME on this 7th day of July, 2004, to
certify which witness my hand and official seal.
Notary Public In and For the State of Texas
17
Page 32
CERTIFICATE OF SERVICE
I do hereby certify that true and correct copies of the foregoing Petition for Writ of
Mandamus were on this 7th day of July, 2004, served by U.S. Mail, postage prepaid, to
the following:
J. Bonner Dorsey
2100 The 600 Building
P.O. Box 1122
Corpus Christi, Texas 78403
and
Sam A. Westergren
615 Leopard Street, Suite 516A
Corpus Christi, Texas 78476
and
Mark Schwartz
DuBois, Bryant, Campbell & Schwartz, L.L.P.
P.O. Box 909
Austin, Texas 78767
Attorneys for Ann M. Fernandez
John Matthew Sjoberg
Jackson, Sjoberg, McCarthy & Wilson, L.L.P.
711 West 7th Street
Austin, Texas 78701
and
Shannon H. Ratliff
Ratliff Law Firm, P.L.L.C.
600 Congress Avenue, Suite 3100
Austin, Texas 78701
Attorneys for ExxonMobil Corporation and ExxonMobil Oil Corporation
Richard L. Leshin
Bruce S. Hawn
Welder, Leshin & Mahaffey, L.L.P.
800 North Shoreline Blvd., Suite 300N
Corpus Christi, Texas 78401
and
Richard J. Hatch, Sr.
The Hatch Law Firm
802 North Carancahua, Suite 665
Corpus Christi, Texas 78470
and
18
Page 33
Ray Chester
Thomas O. Barton
McGinnis, Lochridge & Kilgore, L.L.P.
919 Congress Avenue, Suite 1300
Austin, Texas 78701
and
Jorge C. Rangel
Jon D. Brooks
The Rangel Law Firm, P.C.
615 Upper North Broadway, Suite 2020
Corpus Christi, Texas 78477
and
Mike Hatchell
Charles R. “Skip” Watson
Locke, Liddell & Sapp, L.L.P.
100 Congress Avenue, Suite 300
Austin, Texas 78701
Attorneys for the John G. and Marie Stella Kenedy Memorial Foundation
John W. Vinson
Marsha Aycock
Assistant Attorney General
Charitable Trusts Section
P.O. Box 12528
Austin, Texas 78711-2548
Attorneys for the State of Texas
The Honorable Guy Herman, Judge
Travis County Probate Court
1000 Guadalupe Street, Room 217
P.O. Box 1748
Austin, Texas 78767-1748
Respondent
_________________________________
J. G. Adami, Jr.
19