S.C. v. M.B., Individually and as Next Friend of I.C.

Supreme Court of Texas
══════════
No. 20-0552
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S.C.,
Petitioner,

v.

M.B., Individually and as Next Friend of I.C.,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Second District of Texas
═══════════════════════════════════════

Argued December 1, 2021

JUSTICE BLAND, joined by Justice Boyd and Justice Busby,
dissenting.

Family Code Section 9.203(a) provides in plain terms that “the
court” that rendered the parties’ divorce decree must resolve a claim
asserting a post-divorce undivided community interest. 1 Affixing
jurisdiction in one court comes at the exclusion of others. In
Section 9.203(a), the Legislature accorded appropriate finality to divorce

1 Tex. Fam. Code § 9.203(a).
decrees—the operative judgments that dissolve the marital estate. Such
judgments are final, absent limited statutory exceptions. In affixing
jurisdiction for adjudicating these exceptions, the Legislature sought to
avoid the scattered and piecemeal post-divorce litigation of Texas
marital-property rights the Court today creates.
Almost a century ago, our Court observed: “The courts are
without authority to extend a statute vesting jurisdiction in a particular
district court to all district courts of the state. To do so would be a clear
invasion of the legislative prerogative.” 2 Because the Court discards the
Legislature’s prerogative to confine collateral attacks against Texas
final divorce decrees to the divorcing court in cases such as this one, I
respectfully dissent.
I
The parties entered into an agreement incident to divorce and
sought to dissolve their marital estate. To be effective, a district court
must approve agreements incident to divorce, and it must conclude that
the terms of such an agreement are “just and right.” 3 The parties
obtained approval of their agreement in the 324th District Court of
Tarrant County, Texas, which also granted their divorce. In obtaining
that approval, the parties “each acknowledge[d] that . . . they . . . fully

2 Alpha Petroleum Co. v. Terrell, 59 S.W.2d 364, 368 (Tex. [Comm’n Op.]
1933), abrogated on other grounds by Dubai Petroleum Co. v. Kazi, 12 S.W.3d
71 (Tex. 2000); see also Valdez v. Hollenbeck, 465 S.W.3d 217, 223 n.8 (Tex.
2015) (“District courts have general jurisdiction over all civil actions,
proceedings, and remedies except when exclusive jurisdiction is vested in
another tribunal.”).
3 Tex. Fam. Code § 7.006(b).

2
underst[oo]d that the contents of [the] Final Decree of Divorce constitute
a full and complete resolution of this case.” They further acknowledged
the agreement “to be a just and right division of the marital debt and
assets . . . .”
Despite this finality language and the parties’ agreement, M.B.
alleges that S.C. had acquired partnership interests that were not
divided in the divorce. Though M.B. and her counsel knew about these
interests before the divorce, she did not seek to amend the inventory,
nor did she object to the district court’s approval of their agreement
incident to divorce, as the Family Code permits. 4 M.B. now alleges that
the agreement does not address these interests, and thus they constitute
undivided marital property.
M.B. filed this suit in a different Tarrant County district court—
the 67th District—three years after the 324th District Court signed the
final decree. Her claimed interest is her community interest in the
parties’ former marital estate. That is, she asserts that her interest
arises from the marital estate.
S.C. filed a jurisdictional plea, observing that Family Code
Section 9.203(a) requires the divorcing court to adjudicate any claim
seeking a division of allegedly undivided marital property when it is a
Texas district court that properly had exercised jurisdiction over the
parties’ divorce. The trial court granted the plea. M.B. moved for leave
to file a permissive appeal, and the trial court granted the unopposed
motion.

4 Tex. Fam. Code § 7.006(a).

3
Despite the explicit exclusion of family law cases from the statute
that governs permissive appeals, 5 the court of appeals nevertheless
accepted the appeal and then reversed, holding that the divorcing court’s
jurisdiction to divide marital property in these circumstances is
concurrent with that of any other district court. 6 Chief Justice Sudderth
dissented, observing that Section 9.203(a) requires the court that
rendered the original divorce decree to adjudicate this claim. 7
II
A
The Family Code is a comprehensive framework governing
marriage, marital property, and the parent–child relationship. 8 At the
outset, the Code states a “General Rule of Property Division,” specific to

5 See Tex. Civ. Prac. & Rem. Code § 51.014(d-1) (stating that the
permissive appeals statute “does not apply to an action brought under the
Family Code”). The Court dismisses this jurisdictional impediment with the
gloss that this case is a Property Code, not a Family Code, case. This overlooks
the substance of the claim presented, which undisputedly seeks to divide
marital assets according to each spouse’s community share. We must look to
the substance of the facts alleged, not artful pleading, to determine whether
this case falls within the statutory exclusion. See Lake Jackson Med. Spa, Ltd.
v. Gaytan, 640 S.W.3d 830, 838 (Tex. 2022) (holding that plaintiff’s assertion
that the pleaded claims were not health care claims lacked merit because “the
Act’s application depends not on the labels contained within the pleading but
on the facts revealing the claim’s underlying nature, as found within the entire
record”); State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (“We look
to the substance of a plea for relief to determine the nature of the pleading, not
merely at the form of title given to it.”).
6 634 S.W.3d 102, 105–07 (Tex. App.—Fort Worth, 2020).
7 Id. at 107–08 (Sudderth, C.J., dissenting).
8 See Williams v. Patton, 821 S.W.2d 141, 145 (Tex. 1991) (noting the
Legislature’s deliberate adoption of the Family Code’s “comprehensive
provisions”).

4
marital property. The rule provides that a court “shall order a division”
of the marital estate in a just and right manner:
In a decree of divorce or annulment, the court shall order a
division of the estate of the parties in a manner that the
court deems just and right, having due regard for the rights
of each party and any children of the marriage. 9
Post-divorce, any undivided community property that remains is
“governed by [Chapter 9,] Subchapter C,” entitled “Post-Decree Division
of Property.” 10
Section 9.203(a) governs the post-divorce division claim in this
case. Section 9.203(a) mandates that “the court” that “failed to dispose
of property subject to division in a final decree” in the original divorce
action “shall divide the property” in any subsequent action:
Division of Undivided Assets When Prior Court Had
Jurisdiction. (a) If a court of this state failed to dispose of
property subject to division in a final decree of divorce or
annulment even though the court had jurisdiction over the
spouses or over the property, the court shall divide the
property in a manner that the court deems just and right,
having due regard for the rights of each party and any
children of the marriage. 11
“[T]he court shall divide” is mandatory both in directing the action to
take and which court must take it. If “a court” fails to dispose of
community property in a final decree of divorce, then “the court”—that
is, the court that failed to dispose of the property—“shall divide the

9 Tex. Fam. Code § 7.001.
10 Id. § 9.004.
11 Id. § 9.203(a) (emphases added).

5
property in a manner that the court deems just and right . . . .” 12 “The
court” in the main clause of Section 9.203(a) refers to “a court” in the
antecedent conditional clause, constraining jurisdiction to the district
court that exercised it earlier in adjudicating the parties’ divorce.
Section 9.203 is a jurisdiction-affixing provision. We have held,
and the Texas Constitution provides, that “[a] district court has
subject-matter jurisdiction to resolve disputes unless the Legislature
divests it of that jurisdiction.” 13 If any district court can hear a
post-divorce marital-property division claim, then the designation of a
particular court to hear such a claim is completely unnecessary. 14
Examining the subsection that follows, Section 9.203(b), supports
this conclusion. Section 9.203(b) addresses undivided marital property
when a court outside of Texas adjudicated the divorce. It provides that,
if “a court in another state” fails to dispose of marital property upon
divorce, then “a court of this state” shall apply the law of the first state
in a claim for division of undivided marital property. 15 In such a
circumstance, the statute does not confine jurisdiction to a particular
court, because the court that rendered the initial decree was not a Texas
district court. In contrast, Subsection (a), which governs this suit,

12 Id. (emphasis added).
13In re Oncor Elec. Delivery Co., 630 S.W.3d 40, 44 (Tex. 2021); see Tex.
Const. art. V § 8.
14 In interpreting a statute, we must give effect to each provision. TIC
Energy and Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016) (observing
that, in construing a statute, this Court “giv[es] effect to each provision so that
none is rendered meaningless or mere surplusage”).
15 Tex. Fam. Code. § 9.203(b) (emphasis added).

6
requires the Texas district court that rendered the divorce decree to
handle a claim for undivided property.
Section 9.204(a) provides further context. Section 9.204(a)
governs the outcome when “a court of this state” lacked jurisdiction over
a spouse or the property, and thus failed to divide it, but then later
acquired jurisdiction:
If a court of this state failed to dispose of property subject
to division in a final decree of divorce or annulment because
the court lacked jurisdiction over a spouse or the property,
and if that court subsequently acquires the requisite
jurisdiction, that court may divide the property in a manner
that the court deems just and right . . . . 16
In the absence of jurisdiction in the first instance, a court that later
acquires it “may divide” marital property. In contrast, when a district
court had jurisdiction and rendered the initial decree, as in
Section 9.203(a), that court is the court that “shall divide” the property.
Sections 9.204(a) and 9.203 use a similar formulation, with
Section 9.204(a) clarifying that its further conditions apply to “that”
court.
Read together, Sections 9.203 and 9.204 display the Family
Code’s preference for a comprehensive just and right division, instead of
piecemeal adjudication of infinite duration scattered across district
courts. Subchapter C covers a universe of possibilities—post-divorce
divisions when the court that issued the initial decree had jurisdiction
over the property or did not, within or without the state. In each case,
the Code provides that a “just and right” division is the rule of decision

16 Id. § 9.204(a) (emphases added).

7
for a Texas divorce. For in-state divorces, the statute further commands
that the court that rendered the divorce in the first instance adjudicate
the claim.
B
The Court instead holds that another provision of Subchapter C—
Section 9.201(a)—grants concurrent jurisdiction to any district court.
That provision says that “[e]ither former spouse may file a suit” seeking
a post-divorce division of marital property. 17 The “may” in
Section 9.201(a) does not overcome the “shall” in Section 9.203. Section
9.201 creates a cause of action. The Legislature follows adoption of that
cause with another statute, Section 9.203(a), which affixes jurisdiction
in a particular court for claims that arise after an in-state final decree.
The language in Section 9.203(a) is not permissive. It instructs that “the
court” that rendered the initial decree “shall divide” any undivided
marital property in a just and right manner. 18 “Shall” is mandatory
language. 19 That Section 9.201(a) permits spouses to file suit says
nothing about which court must adjudicate such a claim.
Section 9.203(a) explicitly does.

17 Id. § 9.201(a) (emphasis added).
18 Id. § 9.203(a).
19 Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999) (“We
generally construe the word ‘shall’ as mandatory, unless legislative intent
suggests otherwise.”).

8
Attempting to compare Section 9.203(a) with dissimilar Family
Code provisions does not undo its jurisdictional command. 20 No magic
words are necessary to establish a jurisdictional boundary when the
context plainly indicates that the statute creates one. Thus, “[a]lthough
the statute authorizing the creation of [an administrative agency] does
not contain the words ‘exclusive jurisdiction,’ as many statutes granting
an administrative body exclusive jurisdiction do,” the Legislature can
otherwise indicate that such jurisdiction is exclusive. 21 True, some
Family Code provisions provide for “continuing, exclusive” jurisdiction.
Under Section 9.203(a), in contrast, the divorcing court’s jurisdiction is
not continuous—because court oversight was supposed to have been
concluded after the initial divorce decree—but it nevertheless is
exclusive. By providing a comprehensive framework for dividing the
marital estate, including the particular court to decide this post-divorce
action, the Family Code’s intent is clear.
As a practical matter, the Court’s approach does not accord proper
finality to the parties’ final decree. The final decree dissolves the entire

20See 634 S.W.3d at 105 (noting Section 9.201(a)’s lack of “provisions
expressly provid[ing] for continuing, exclusive jurisdiction,” as in other Family
Code statutes).
21 Thomas v. Long, 207 S.W.3d 334, 341 (Tex. 2006). The Court points
out that the statute in Thomas “authorize[d] the [agency] to extend specified
rights to employees that are not available at common law.” Ante at 21; id. But
the right to a just and right division of marital property is another right
unavailable at common law, granted to divorcing parties only by statute.
See Tex. Fam. Code § 7.001 (granting the court power to divide the post-divorce
marital estate in a just and right manner).

9
marital estate. 22 As with other final judgments, a divorce decree
adjudicates all claims that were brought or that could have been
brought. 23 The parties here expressly acknowledged as much. That
division has res judicata effect and cannot be dislodged via collateral
attack absent statutory exception. 24
Like the common law before it, the Legislature in Chapter 9
permits an exception for claims seeking division of allegedly “undivided”
property. As with Chapter 9’s other exceptions, Section 9.203(a) is a
legislatively endorsed exception to the finality of the final divorce decree.
Once a former spouse brings a challenge within the proper time frame
and establishes that an asset went undivided, that undivided property
is subject to a just and right division as a part of the overall marital
estate. 25 That does not mean, however, that a former spouse may bring
suit post-divorce alleging an undivided interest anytime, anywhere.

22Koepke v. Koepke, 732 S.W.2d 299, 300 (Tex. 1987) (holding that a
divorce decree is a final judgment, and that “[o]mission of certain community
property from a divorce decree does not affect its finality”).
23 Id. The decree in this case recites that it is “a final judgment” as to
“all claims and all parties.”
24 Baxter v. Ruddle, 794 S.W.2d 761, 762 (Tex. 1990) (“It is clear that
res judicata applies to a final divorce decree to the same extent that it applies
to any other final judgment . . . . If an appeal is not timely perfected from the
divorce decree, res judicata bars a subsequent collateral attack.”); see also
Brown v. Brown, 236 S.W.3d 343, 347 (Tex. App.—Houston [1st Dist.] 2007, no
pet.). In Brown, the petitioner could not establish that the property at issue
went undivided in the initial decree; thus, res judicata barred the claim. Id. at
349. In acknowledging the exception for undivided property, the court of
appeals had no occasion to address jurisdiction, and the suit was properly filed
in the district court that had entered the initial decree. Id. at 346.
25 Tex. Fam. Code § 7.001.

10
Such is the effect of the Court’s ruling. In upholding the notion that later
judgments from hither and yon may supplant—or at the very least,
supplement—the original decree, the Court turns our jurisprudence
favoring jurisdiction and disfavoring collateral attacks on its head. 26
As our Court has recognized, the Legislature may vest exclusive
jurisdiction in one district court to the exclusion of others; it has done so

26 Dubai Petroleum, 12 S.W.3d at 76 (overruling this Court’s precedent
that “failure to establish a statutory prerequisite” is jurisdictional, to preserve
the finality of judgments and to protect them from delayed attack).
We agree that mandatory statutory requirements are not automatically
jurisdictional prerequisites. Ante at 19. There is a difference, however, between
a statute that itemizes mandatory elements necessary to bring a claim and a
statute that fixes the suit in a particular court. As we have held, such
requirements are, in fact, jurisdictional. See, e.g., City of Waco v. Lopez, 259
S.W.3d 147, 156 (Tex. 2008) (dismissing claim for lack of jurisdiction because
whistleblower complaint must be filed to the Texas Workforce Commission);
United Servs. Auto. Ass’n v. Brite, 215 S.W.3d 400, 403 (Tex. 2007) (dismissing
case for lack of jurisdiction because amount in controversy exceeded the
statutory limit for county court jurisdiction); Campbell v. Wilder, 487 S.W.3d
146, 150 (Tex. 2016) (recognizing that Section 65.023(b) of the Civil Practice
and Remedies Code confines jurisdiction to stay execution of judgment to court
that rendered it unless “relief can be granted independently of the judgment”);
see also Abbott v. Hearthwood I Ass’n Inc., No. 14-18-00333-CV, 2020 WL
1026443, at *3 (Tex. App.—Houston [14th Dist.] Mar. 3, 2020, no pet.)
(dismissing case for lack of jurisdiction because, under Texas Government
Code Section 27.031, plaintiff sued in the wrong court).
Further, to the extent the majority is concerned with the proliferation
of future void judgments in these cases, we note that the Texas Constitution
and the Government Code permit district courts to “exchange districts, or hold
courts for each other when they may deem it expedient . . . .” Tex. Const. art.
V § 11; see also Tex. Gov’t Code § 24.003 (“Transfer of Cases; Exchange of
Benches”); Dickerson v. State, No. 05-20-00339-CR, 2021 WL 5410523, at *1
(Tex. App.—Dallas Nov. 19, 2021, no pet.) (“[T]he absence of a transfer order
is not a jurisdictional problem, and it does not render the actions of the
transferee court void . . . . [but] is properly addressed by a plea to the
jurisdiction.”).

11
in a variety of contexts. 27 In particular, jurisdiction over a suit seeking
to modify, enjoin, or collaterally attack an earlier judgment often must
be brought in the court that issued the judgment under review. 28 When
a party seeks to modify an in-state divorce, the Family Code confines
jurisdiction over the claim in the court that rendered the judgment,
similar to attacks on an otherwise final judgment brought through a bill
of review. 29 “Finality is uniquely important in family law matters,” and
like other Family Code statutes, Section 9.203(a) “quite reasonably
precludes subsequent bites at the apple that threaten finality in
perpetuity” by limiting where and how parties may assert a challenge to
a final divorce decree. 30

27 See, e.g., Tex. Loc. Gov’t Code § 72.009(a) (A county boundary dispute
suit “must be brought in the district court of a county in an adjoining judicial
district whose boundaries are not affected by the suit and whose county seat is
closest to the county seat of the county that brings the suit.”); Tex. Code Crim.
Proc. art. 55.02 § 1 (“[T]he trial court presiding over the case in which the
person was acquitted, if the trial court is a district court, a justice court, or a
municipal court of record, or a district court in the county in which the trial
court is located shall enter an order of expunction for a person entitled to
expunction under Article 55.01(a)(1)(A) not later than the 30th day after the
date of the acquittal.”); Tex. Tax Code § 112.001 (“The district courts of Travis
County have exclusive, original jurisdiction of a taxpayer suit brought under
this chapter.”).
28 See, e.g., Tex. Civ. Prac. & Rem. Code § 65.023(b) (confining actions
to stay a judgment to the court in which the judgment was rendered); see also
Campbell, 487 S.W.3d at 150; Frost Nat. Bank v. Fernandez, 315 S.W.3d 494,
504 (Tex. 2010) (collecting cases) (“Because it is a direct attack, a bill of review
must be brought in the court that rendered the original judgment, and only
that court has jurisdiction over the bill.”).
29 Frost Nat. Bank, 315 S.W.3d at 504.
30 See In re D.S., 602 S.W.3d 504, 512, 517 (Tex. 2020) (discussing
finality of judgments in parental-rights termination cases).

12
C
The Property Code permits joint property owners to enlist a
district court to divide their property. 31 A Property Code partition
accounts for rents and profits received, taxes paid, waste committed, or
improvements made. 32 It does not provide for a “just and right” division,
as the Family Code mandates for the division of the marital estate. 33
Accordingly, a partition does not consider the remaining marital estate,
the agreement incident to divorce, or the distribution of the parties’
other assets. 34 A “just and right” division allows courts to consider all of
these factors, as well as others outside a particular marital asset, like
fault contributing to the dissolution of the marriage and disparity of
income. 35

31Tex. Prop. Code § 23.001 et seq. (“A joint owner or claimant of real
property or an interest in real property or a joint owner of personal property
may compel a partition of the interest or the property among the joint owners
or claimants under this chapter and the Texas Rules of Civil Procedure.”).
32 Sayers v. Pyland, 161 S.W.2d 769, 771 (Tex. 1942).
33 Tex. Fam. Code § 7.001.
34 See Smith v. Cooper, 541 S.W.2d 274, 277 (Tex. App.—Texarkana
1976, no writ) (limiting the court’s “wide latitude in the adjustment of equities”
to only equities “which have arisen from or are in some way connected with the
real estate to be partitioned” (citing Richardson v. Kuhlmyer, 250 S.W.2d 355,
359–60 (Mo. 1952)); Disbrow v. Thibodeaux, 596 S.W.2d 174, 176 (Tex. App.—
Houston [14th Dist.] 1980, writ ref’d n.r.e.), abrogated on other grounds by
Berry v. Berry, 647 S.W.2d 945 (Tex. 1983) (holding that, in adjusting the
equities of parties to a post-divorce partition, “the equities and claims involved
must relate to the common property to be partitioned,” and “the financial
situation of the parties and other factors not relating to the property cannot be
considered”).
Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Bradshaw v.
35

Bradshaw, 555 S.W.3d 539, 543 (Tex. 2018).

13
In divorce cases, an equal division of one marital asset is often not
an equitable division in light of the overall division of the community
estate. Our Court recognized this important distinction in Busby v.
Busby, a suit for a post-decree division decided before the Legislature
passed Section 9.203(a). 36 In 1987, the Legislature addressed the
potential inequity of a post-divorce partition by enacting then-
Section 3.90 of the Family Code, titled “Procedure for Division of Certain
Property not Divided on Divorce or Annulment.” 37 Section 3.91(a)
instructed “the court” that failed to divide marital property upon divorce
that it “shall divide the property in a manner that the court deems just
and right:” 38
If a final decree of divorce or annulment rendered by a
Texas court failed to dispose of property subject to division
under Section 3.63 of this code even though the court had
jurisdiction over the spouses or over the property, the court
shall divide the property in a manner that the court deems
just and right, having due regard for the rights of each
party and any children of the marriage. 39
Like its modern version, Section 3.91(a) charged the divorcing court with
the duty to divide the property in the later suit as it should have done
in the original divorce proceeding.

36 457 S.W.2d 551, 555 (Tex. 1970) (“We strongly suspect that the trial
court which pronounced the decree of divorce and ordered a division of the
estate of the parties in 1963, would not have divided defendant’s disability
retirement benefits as is being accomplished here.”).
Act of July 20, 1987, 70th Leg., 2nd C.S., ch. 50, § 3, 1987 Tex. Gen.
37

Laws 159, 160 (current version at Tex. Fam. Code §§ 9.201–9.205).
38 Id.
39 Id. (emphases added).

14
M.B. seeks a post-divorce Property Code partition of an allegedly
undivided community interest. By enacting Subchapter C, however, the
Legislature displaced the common law with a rule of just and right
division for the entire community estate. 40 We have never held that a
post-divorce common law tenancy interest created by operation of law
survives Subchapter C’s enactment. In deciding today’s jurisdictional
question, however, the Court takes that as a given, relying on cases that
predate Subchapter C or in which we declined to apply any remedy at
all. 41 Though we disfavor abrogation of the common law, the Legislature

40 See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 802 (Tex. 2010)
(noting that, while “abrogation of common-law claims is disfavored,” this Court
“will construe the enactment of a statutory cause of action as abrogating a
common-law claim if there exists ‘a clear repugnance’ between the two causes
of action” (quoting Cash Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000)).
41Ante at 13–15. The Court cites Wilde v. Murchie, 949 S.W.2d 331, 332
(Tex. 1997), for the proposition that undivided property is subject to a later
partition. The Court in Wilde held that the property at issue was in fact divided
by the decree. Id. at 333. Moreover, Wilde cites as support cases that predate
the Family Code’s remedies. See generally id.
The Court also cites Laster v. First Huntsville Props. Co., 826 S.W.2d
125 (Tex. 1991), to support the statement that “[w]e have also used joint
ownership ‘to refer both to property held in joint tenancy, and property held in
cotenancy.’” Ante at 7 n.8; id. at 129 (citing Stauffer v. Henderson, 801 S.W.2d
858 (Tex. 1990), and Harrell v. Harrell, 692 S.W.2d 876 (Tex. 1985)). Laster
involved a divorce decree that awarded 73.83% of the community property to
the former wife, along with the exclusive right to use the homestead residence
until the children came of age. Id. at 127–28. The question in that case related
to the nature of the property interest held by the former husband’s successor.
Id. at 128–29. It should not be confused as an authority on what interest
spouses have in property that escaped division by decree.

15
can, and often does, displace common law remedies. 42 When the
Legislature instructs that the court “shall” apply the rule of just and
right division, the common law remedy must give way. A property
interest can be divided only once; it cannot be both partitioned and justly
and rightly divided. 43
The Court answers that a party facing a claim for partition
potentially could counterclaim for a just and right division, accepting
the argument that the Property Code and the Family Code provide
alternative options for dividing undivided marital property. 44 This
solution is not the one the statute provides. The Legislature offers

42 See Waffle House, 313 S.W.3d at 802 (observing that statutory
abrogation of common-law claims is disfavored and addressing the standard
used to determine if such a claim has been abrogated).
43 See Busby, 457 S.W.2d at 555 (noting, after partitioning property,
that the divorce court would likely have apportioned property differently in a
just and right division).
44 The Court further seemingly accepts that the Property Code is the
appropriate rule of law for division of the claim alleged. The property interest
asserted in this case, however, is one involving limited partnerships—not real
property. Separate statutory and contractual provisions govern such interests.
For example, a limited partnership agreement in the record provides that,
upon involuntary transfer, the transferee is entitled to distributions in
proportion to the transferred interest. And the Business Organizations Code
governs partnership interests divided by divorce, denominating the ex-spouse
as a “transferee,” not as a tenant in common. Tex. Bus. Orgs. Code
§ 152.406(a)(1) (“For purposes of this code: (1) on the divorce of a partner, the
partner’s spouse, to the extent of the spouse’s partnership interest, if any, is a
transferee of the partnership interest . . . .”). Although Section 152.406(a)(1) is
specific to general partnerships, the Limited Partnership Act incorporates that
provision by reference. Id. § 153.003(a).

16
multiple ways to assert a post-divorce community interest. 45 The Court
chooses to ignore them and to adopt its own.
The Court’s solution is also not one that works. Even the Court
concedes that material differences exist between the Family Code’s
statutory right to a just and right division and the Court’s view of a
common law property interest created by operation of law. 46 These
differences demonstrate the incompatibility of the Family Code with the
Court’s view, and the Court offers no clues as to how they may coexist. 47
For example, the Legislature’s two-year limitations period significantly
differs from the Court’s apparently nearly limitless availability of
partition. 48 We should not profess to know better than the Legislature
what policy of finality should apply to post-divorce claims of undivided
marital property. 49

45 See Tex. Fam. Code § 9.101 et seq.
46 Ante at 27.
47 See Waffle House, 313 S.W.3d at 807 (summarizing the differences
between the statutory and common law remedies at issue and concluding that
if the common law claim is allowed to coexist with the statutory claim, “the
panoply of special rules applicable to [statutory] claims could be
circumvented”).
48Tex. Fam. Code § 9.202(a). Community property does not remain in
“suspended animation” when Subchapter C’s statute of limitations expires.
Ante at 36. At some point, courts must look beyond the perpetual assertion of
an unrecorded community interest—to a contract, deed, or other relevant
evidence—to determine ownership.
49Before us in this permissive appeal is purely a jurisdictional question.
Yet the Court’s discourse delves into the merits of the alleged claim and into
what the divorce decree in this case says about the claimed interest—according
to the Court, “nothing.” Ante at 17.

17
Both our precedent and the Government Code instruct that the
more specific statute controls when conflicting statutory provisions exist
“unless the general provision is the later enactment and the manifest
intent is that the general provision prevail.” 50 The Family Code is
patently more specific in governing an undivided piece of marital
property than Section 23.001 of the Property Code. The latter governs
property division among the larger class of tenants-in-common, and it
applies to interests that do not arise by operation of law at the cessation
of a marriage. In contrast, the Family Code expressly governs the post-
decree division of marital property. Further, now-Section 9.203 of the
Family Code—enacted in 1987—is the later-enacted statute; the
Legislature most recently reenacted Section 23.001 of the Property Code
in 1983. 51
The proper method of dividing a leftover piece of marital property
is what Section 9.203(a) commands: a just and right division in the court
that rendered the final divorce decree.
III
With its decision, the Court undoes the Legislature’s work. The
Court’s permissive choice between just and right division and partition
provides an incentive for embittered parties to hide or neglect to discover
community property, finalize the divorce, and then sue to partition that

Tex. Gov’t Code § 311.026(b); In re Mem’l Hermann Hosp. Sys., 464
50

S.W.3d 686, 716 (Tex. 2015).
51 Compare Act of May 26, 1983, 68th Leg., R.S., ch. 576, § 1, 1983 Tex.
Gen. Laws 3475, 3513 (codified at Tex. Prop. Code § 23.001), with Act of July
20, 1987, 70th Leg., 2nd C.S., ch. 50, § 3, 1987 Tex. Gen. Laws 159, 160 (current
version at Tex. Fam. Code §§ 9.201–9.205).

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property in a court of the spouse’s choice—a court without the benefit of
first-hand knowledge of the circumstances of the divorce, with any
division the court makes not subject to the rule of just and right
division. 52 Fixing jurisdiction with the court that decided the original
decree prevents this kind of forum shopping when disputes as to the
finality of a decree arise.
Divorced spouses are welcome to make contractual arrangements
that are not incident to their divorce, for which other law governs. If a
property right arises from something other than a community interest
not divided in the final divorce decree, then the Family Code’s mandated
just and right division does not apply. But it is alleged here that the
interests at issue arose by operation of law when a court dissolved the
community estate upon the parties’ divorce, not as part of an
independent agreement between the parties.
The Family Code affixes jurisdiction in the court best equipped to
accomplish a just and right division of marital property that went
undivided in the final decree. In contrast, this Court permits a suit to
divide the property to be brought in a county far from the court that

52 As Chief Justice Sudderth in her dissent observed:
It would be absurd, indeed, to allow a party who hid assets
during a divorce proceeding to get a second bite at the apple
post-divorce by unilaterally filing in the court of his or her choice
when the Legislature has provided that the party shall receive
a ‘just and right’ division of the assets by the divorce court
exercising its jurisdiction over the case.
634 S.W.3d at 108 (Sudderth, C.J., dissenting); see also Tex. Fam. Code
§§ 7.001, 9.203(a) (emphasis added).

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heard the divorce, possibly to one spouse’s extreme detriment. 53
Unfamiliar with the facts and record surrounding the parties’ divorce,
that new court essentially must relitigate the divorce. 54 This result is
exactly what the statute precludes.
* * *
Section 9.203(a) of the Family Code vests jurisdiction over suits
asserting a post-divorce interest in marital property in the court that
rendered the final decree. In so doing, the Legislature limited when and
how a former spouse may pursue further division of the marital estate
once the divorce is final. In keeping with the Legislature’s prerogative
to affix jurisdiction in a particular court, we should reverse the court of
appeals’ judgment. Because we do not, I respectfully dissent.

Jane N. Bland
Justice

OPINION DELIVERED: June 17, 2022

53 Tex. Prop. Code § 23.002(a) (“A joint owner or a claimant of real
property or an interest in real property may bring an action to partition the
property or interest in a district court of a county in which any part of the
property is located.”).
54 The Court offers that some claims may not arise until after the judge
who rendered the final decree has left the bench. Ante at 29–30. However, “a
trial court may take judicial notice of its own records in a cause involving the
same subject matter between the same, or practically the same, parties.”
Gardner v. Martin, 345 S.W.2d 274, 276 (Tex. 1961).

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