In Re Monte Gregg, Individually and as Trustee of the Kenneth Gregg Trust, Relator v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-25-00035-CV

IN RE MONTE GREGG, INDIVIDUALLY AND AS TRUSTEE OF THE KENNETH
GREGG TRUST, RELATOR

ORIGINAL PROCEEDING

May 29, 2025
OPINION ON ORIGINAL PROCEEDING FOR WRIT OF MANDAMUS
Before PARKER and DOSS and YARBROUGH, JJ.

Relator Monte Gregg filed a petition asking this Court to issue a writ of mandamus

against respondent, the Honorable Benjamin A. Webb, judge of the County Court at Law

No. 3 of Lubbock County. Monte1 seeks an order compelling Judge Webb to vacate a

return order he issued on December 30, 2024. We conditionally grant the petition.

1 Because many of the parties share the same surname, we will refer to them by their first names

after their initial introductions.
BACKGROUND

Kenneth Gregg is the owner of thousands of acres of land in multiple counties on

which he has conducted substantial farming operations. In 2023, he experienced

complex and severe health issues, including the amputation of a portion of his left leg and

a diagnosis of moderate to severe dementia. In June and October of 2023, Kenneth

transferred certain real property and cattle to his son Monte. In December of 2023,

Lucretia Howe and Sharla Gregg, Kenneth’s daughters, filed an application for

appointment of temporary and permanent guardianship of Kenneth. On December 22,

the trial court entered an order appointing Lucretia temporary guardian of Kenneth’s

estate. In July of 2024, Kenneth purportedly created a trust, named Monte as trustee,

and conveyed all of his remaining property to the trust. After holding a hearing over the

course of three days in May and July of 2024, the trial court entered its Order Appointing

Permanent Guardian.2

After being named permanent guardian of Kenneth’s estate, Lucretia filed a motion

requesting the return and delivery of equipment and proceeds combined with a request

for extension to file an inventory and appraisement. This motion was filed against and

served on Monte only in his individual capacity and not as trustee. After holding a hearing

on Lucretia’s motion, the trial court signed an order for the return of equipment and

proceeds (return order) on December 30, 2024. Monte filed the instant original

proceeding, both individually and as trustee, challenging this return order.

2 In a separate proceeding, Monte has appealed the trial court’s Order Appointing Permanent
Guardian.
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Monte’s petition challenges the return order on four bases: (1) the return order

constitutes an impermissible prejudgment attachment, (2) the return order exercises

authority over him in all capacities even though he is not a party to the suit as trustee, (3)

Lucretia filed an original petition in the guardianship action rather than as a separate suit,

and (4) the return order is impermissibly overbroad and vague. Because we find Monte’s

second argument dispositive, we will limit our analysis to that issue.

STANDARD OF REVIEW

Mandamus is an extraordinary remedy granted only when a relator can show that

(1) the trial court clearly abused its discretion, and (2) no adequate appellate remedy

exists. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding)

(per curiam). The relator bears the burden of proving these two requirements. Id.

A trial court abuses its discretion when it clearly fails to analyze or apply the law

correctly. Id. We will not disturb a trial court’s decision unless it amounts to a clear and

prejudicial error of law or fails to correctly analyze or apply the law to the facts. Id. at

302–03. To prevail, the relator must establish that the trial court could have reasonably

reached only one decision. Id. at 303.

Mandamus will not issue where there is “a clear and adequate remedy at law, such

as a normal appeal.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig.

proceeding) (quoting State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984) (orig.

proceeding)). Because mandamus is intended to be an extraordinary remedy, it is

available only in limited circumstances. Id. The writ will issue “only in situations involving

manifest and urgent necessity and not for grievances that may be addressed by other

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remedies.” Id. (quoting Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.

1989) (orig. proceeding)). We review the trial court’s determination of the legal principles

controlling its ruling with limited deference. Id.

ANALYSIS

Monte’s second issue contends that the return order improperly exercises control

over him in all capacities even though he was not a party to the suit as trustee. Lucretia

responds that no trust was properly created because Texas law prohibits the transfer of

Kenneth’s property out of his estate while he is under an active guardianship.

As an initial matter, we must determine whether Kenneth possessed the authority

to create the Kenneth Gregg Trust while under the temporary guardianship created by

the trial court’s order of December 22, 2023. Lucretia cites Baldwin v. Davis Hill Oil Co.,

245 S.W.2d 353, 361–62 (Tex. App.—Beaumont 1951, writ ref’d n.r.e.), as establishing

that transfers of property by a ward during a period when the ward was under an active

guardianship are invalid. However, Baldwin is a 1951 opinion that addresses the validity

of two competing transfers of property, one made by the ward and the other by the

guardian, and involves a permanent guardianship. Id. at 357, 361. Also, we do not read

Baldwin as categorically establishing that a ward’s transfer of property while under an

active guardianship is invalid; rather, it holds that a ward’s purported transfer of property

is disaffirmed when a guardian makes a conflicting court-approved transfer of the same

property. Id. at 362. Finally, Baldwin was decided well before the enactment and

codification of chapter 1151 of the Texas Estates Code, and we conclude that it is the

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Estates Code that controls whether Kenneth could create the trust while under a

temporary guardianship.

It is undisputed that Kenneth was under a temporary guardianship at the time he

purportedly created the Kenneth Gregg Trust and transferred his property to it. The

Estates Code provides that “[a]n incapacitated person for whom a guardian is appointed

retains all legal and civil rights and powers except those designated by court order as

legal disabilities by virtue of having been specifically granted to the guardian.” TEX. EST.

CODE ANN. § 1151.001. This provision creates a presumption that a ward retains all

powers not specifically granted to the guardian. Daves v. Daniels, 319 S.W.3d 938, 942

(Tex. App.—Austin 2010, pet. denied) (applying former Probate Code provision). Here,

the temporary guardianship order in place at the time of Kenneth’s purported transfer of

his property to the trust specifically states that Lucretia’s power over Kenneth’s estate

“shall be limited to possessing assets of the Ward’s estate, spending of estate funds for

the daily care of KENNETH GREGG, and protecting and preserving estate assets.”

Nothing in the temporary guardianship order prohibited Kenneth from creating a trust or

expressly granted the right to create a trust to the temporary guardian of the estate. Thus,

we must presume that Kenneth retained the right to create the Kenneth Gregg Trust in

July of 2024. Further, the temporary guardianship did not expressly prevent Kenneth

from transferring any estate property and did not give Lucretia the exclusive right over all

estate property.3 Since nothing in the record rebuts the presumption that Kenneth

retained the authority to create a trust, we conclude that he retained that authority.

3 While we conclude that Kenneth retained the right to create a trust, “[a] trust cannot be created

unless there is trust property.” TEX. PROP. CODE ANN. § 112.005. Whether Kenneth retained the authority
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Monte’s contention is that the return order is void because it asserts jurisdiction

over him in his capacity as trustee but he was not named as a party nor served in that

capacity. “A judgment or order is void when it is apparent that the court rendering it lacked

jurisdiction [over] either the parties or the subject matter of the lawsuit.” In re Mask, 198

S.W.3d 231, 234 (Tex. App.—San Antonio 2006, orig. proceeding). Generally, a trial

court does not acquire jurisdiction to enter a judgment or order against a respondent

unless the record shows that the respondent was properly served with citation, made an

appearance, or waived service in writing at the time the judgment or order was entered.

Id. (citing TEX. R. CIV. P. 124 and Werner v. Colwell, 909 S.W.2d 866, 869–70 (Tex.

1995)). A judgment or order that is entered before the court acquires jurisdiction over the

parties against whom relief is ordered is void. Id. Suits against a trust must be brought

against its legal representative, the trustee. Ray Malooly Trust v. Juhl, 186 S.W.3d 568,

570 (Tex. 2006) (per curiam). For relief to be ordered against a trust, its trustee must be

made a party by service, acceptance, or waiver of service. In re Ashton, 266 S.W.3d 602,

604 (Tex. App.—Dallas 2008, orig. proceeding).

In the present case, the Kenneth Gregg Trust was not named as a party to

Lucretia’s motion seeking an order for the return of property. While Monte was named as

a party and was before the trial court in his individual capacity, he was not sued in his

capacity as trustee. Because the return order was entered against Monte “in all

capacities,” including as trustee of the Kenneth Gregg Trust, the return order grants relief

to fund the trust is a separate question related to the validity of the trust’s creation, which is not an issue
before us in this original proceeding. However, we do note that a trust, through its trustee, must be made
a party to an action which seeks to invalidate the trust. Tomlinson v. Khoury, 624 S.W.3d 601, 610 (Tex.
App.—Houston [1st Dist.] 2020, pet. denied); In re Ashton, 266 S.W.3d 602, 604 (Tex. App.—Dallas 2008,
orig. proceeding).
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against the trust. But, because the trial court lacked jurisdiction over the trust, its return

order was void. Id.; see In re Mask, 198 S.W.3d at 235 (order appointing temporary

guardians void when trial court had not acquired jurisdiction over putative incapacitated

person at time order was signed). Because the return order is void, Monte need not show

that he lacks an adequate remedy at law, and mandamus is appropriate. In re Sw. Bell

Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding) (per curiam); In re Ashton,

266 S.W.3d at 604.

CONCLUSION

Having determined that the return order is void, we conditionally grant Monte’s

petition for writ of mandamus and direct the trial court to vacate its return order.4 We will

issue our writ only if the trial court fails to comply.

Judy C. Parker
Justice

4 On January 17, 2025, Monte filed a Motion for Emergency Temporary Relief requesting that this

Court stay enforcement of the return order. By Order of this Court, we granted the requested stay on
January 22. Due to our resolution of Monte’s petition, we vacate our January 22, 2025 Order.
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