In the Estate of Carlos Y. Benavides Jr. v. the State of Texas

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-21-00077-CV

IN THE ESTATE OF CARLOS Y. BENAVIDES JR.

From the County Court at Law No. 1, Webb County, Texas
Trial Court No. 2020-PB7-000138-L1
Honorable Hugo Martinez, Judge Presiding

Opinion by: H. Todd McCray, Justice

Sitting: Rebeca C. Martinez, Chief Justice
Adrian A. Spears II, Justice
H. Todd McCray, Justice

Delivered and Filed: January 21, 2026

REVERSED AND REMANDED

Appellant Leticia Benavides appeals the probate court’s denial of her request to abate and

its determination that she lacked standing to participate in the probate proceedings regarding the

estate of her ex-husband. We reverse and remand.

BACKGROUND

As this is a memorandum opinion and the parties are familiar with the facts of the case, we

will not recite them here except as necessary to advise the parties of this court’s decision and the

basic reasons for it. See TEX. R. APP. P. 47.4.

Linda Cristina Alexander was appointed as guardian for her elderly father Carlos

Benavides. Linda moved him out of the house he shared with his wife Leticia and later filed for
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divorce on his behalf. The divorce was granted and, while Leticia’s appeal of the divorce was

pending, Carlos died. Linda filed an application to probate his will. Leticia raised challenges to the

probate proceeding and, in response, Linda moved to strike Leticia’s filings and dismiss Leticia

from the proceeding on the basis that, as Carlos’s ex-wife, Leticia did not have standing to contest

any aspect of the proceeding. In response, Leticia requested the court grant a limited abatement of

the standing determination until the appeal of her divorce was final. The probate court denied

Leticia’s request for abatement and dismissed her from the proceedings on the grounds that she

lacked standing.

Leticia initiated this appeal shortly thereafter, challenging the probate court’s denial of her

request for abatement. While this appeal was pending, the Supreme Court of Texas vacated the

divorce decree, holding that Linda had failed to obtain a finding that pursuing and granting the

divorce would be in her father’s best interests. See Matter of Marriage of Benavides, 712 S.W.3d

561, 580 (Tex. 2025). After that ruling, this Court permitted the parties to file additional briefing.

In her supplemental briefing, Leticia additionally challenges the probate court’s finding that she

lacked standing, and her resulting dismissal from the probate proceeding. 1

APPELLATE JURISDICTION

We begin with a determination regarding whether this Court has jurisdiction over this

appeal. The existence of jurisdiction to determine the merits of an appeal is a question of law. In

re Guardianship of Jones, 629 S.W.3d 921, 924 (Tex. 2021) (per curiam). Generally, appeals may

be taken only from final judgments. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006).

“Probate proceedings are an exception to the ‘one final judgment’ rule; in such cases, ‘multiple

judgments final for purposes of appeal can be rendered on certain discrete issues.’” Id. (quoting

1
Leticia also filed a motion for leave to raise/address this standing issue. As discussed more fully below, we find that
this issue is intertwined with Leticia’s original issue. Accordingly, we grant the motion for leave.

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Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex. 2001)). However, the Texas Supreme Court

has held that “[n]ot every interlocutory order in a probate case is appealable,” and added that

“determining whether an otherwise interlocutory probate order is final enough to qualify for appeal

has proved difficult.” Mackie, 193 S.W.3d at 578.

In the past, courts relied on a “substantial right” test to determine whether an interlocutory

probate order should be appealable. Id. Under that test, once the probate court adjudicated a

“substantial right,” the order was appealable. Id. In 1995, the Texas Supreme Court attempted to

clarify this test, noting that “while adjudication of a ‘substantial right’ was one factor to be

considered, equally important” was “earlier precedent requiring that the order dispose of all issues

in the phase of the proceeding for which it was brought.” Id. Thus, “[t]o sidestep ‘potential

confusion’ about the appropriate test for jurisdiction,” the court adopted the following test:

If there is an express statute, such as the one for the complete heirship judgment,
declaring the phase of the probate proceedings to be final and appealable, that
statute controls. Otherwise, if there is a proceeding of which the order in question
may logically be considered a part, but one or more pleadings also part of that
proceeding raise issues or parties not disposed of, then the probate order is
interlocutory.

Id.

In the present case the denial of Leticia’s motion to abate is intertwined with the probate

court’s finding that Leticia lacked standing to contest the will at issue. Accordingly, the trial court’s

order—ruling on both issues—foreclosed Leticia’s participation in the probate proceeding and is

therefore a final appealable order. See Womble v. Atkins, 160 Tex. 363, 368–69, 331 S.W.2d 294,

297–98 (1960) (“A judgment of no interest and consequent dismissal of an application for probate,

or contest of, a will is in no sense interlocutory. . . . Unless and until the party against whom the

judgment is rendered acquires a new status of interest which was not and could not have been

adjudicated, the judgment is a final judgment.”); Rosin v. Berco & Leja Rosin Tr., No. 04-08-

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00601-CV, 2009 WL 1956386, at *2 (Tex. App.—San Antonio July 8, 2009, pet. denied) (mem.

op.) (“Once the trial court found that the minor plaintiffs lacked standing to bring the will contest,

all issues in the phase of the proceeding for which it was brought had been disposed by the trial

court. Thus, the order granting the motion in limine was a final appealable order . . . .”).

Accordingly, we have jurisdiction to consider the order.

SCOPE OF REVIEW

In her original appellate brief Leticia challenged the denial of her motion to abate. In her

supplemental briefing, Leticia more directly addresses the probate court’s decision to strike her

pleadings and dismiss her from the underlying probate proceeding for a lack of standing, after

denying her request to abate. 2 Leticia also filed a motion for leave to raise and address this standing

issue. We conclude this “second” issue is entwined with Leticia’s appeal of the denial of her

motion to abate—the express purpose of which was to defer a ruling on standing prior to a final

determination of her marital status.

[T]he issues in the pending divorce appeal and the underlying probate proceeding—
whether Leticia and Carlos were lawfully divorced (without either spouse’s
consent) and thus, whether Leticia is Carlos’s surviving spouse—are inherently
intertwined. Indeed, whether Leticia has any interest in Carlos’s estate cannot be
adjudicated until the validity of the Divorce Decree is resolved on appeal. 3

Thus, the propriety of the trial court’s premature determination of standing is inherently

part of Leticia’s appeal of her dismissal from the probate proceedings. Accordingly, we grant

Leticia’s motion. See St. John Missionary Baptist Church v. Flakes, 595 S.W.3d 211, 215–16 (Tex.

2020) (per curiam) (“We hold that the court of appeals had authority under Rule 38.9 to request

additional briefing in this case because the “unbriefed issue” was “fairly included” in or

2
Leticia was precluded from directly challenging this ruling prior to the Supreme Court of Texas vacating the divorce
decree.
3
Brief of Appellant at 14 (filed September 3, 2021).

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“inextricably entwined” with a briefed issue.”); see also TEX. R. APP. P. 38.7 (“A brief may be

amended or supplemented whenever justice requires, on whatever reasonable terms the court may

prescribe.”); Stuart v. Coldwell Banker & Co., 552 S.W.2d 904, 906 (Tex. App.—Houston [1st

Dist.] 1977, writ ref’d n.r.e.) (“In order to effectuate the cause of justice, an appellate court has the

authority to permit an appellant to file an amended brief and to include therein additional points of

error, either prior to or after submission, upon such reasonable terms as it may prescribe.”).

Accordingly, we conclude that both issues raised by Leticia are properly before us for review.

ANALYSIS

A. Did the probate court err by not abating the determination of Leticia’s standing as
Carlos’s surviving spouse pending the resolution of the divorce appeal?

Leticia asserts the probate court erred when it refused to abate the determination of Linda’s

motion to dismiss until a final judgment was reached in Leticia’s appellate challenge to the divorce.

We agree.

The granting of a plea in abatement in a later-filed suit is mandatory when “an inherent

interrelation of the subject matter exists in two pending lawsuits.” Wyatt v. Shaw Plumbing Co.,

760 S.W.2d 245, 247 (Tex. 1988). “In determining whether an inherent interrelationship exists,

courts should be guided by the rule governing persons to be joined if feasible and the compulsory

counterclaim rule.” Id. “The term ‘guided’ does not indicate that all elements of the compulsory

counterclaim rule must be met for an inherent interrelationship to exist between two cases.” In re

PlainsCapital Bank, No. 13-17-00021-CV, 2018 WL 2979836, at *9 n.5 (Tex. App.—Corpus

Christi-Edinburg June 8, 2018, orig. proceeding) (collecting cases). “Abatement because of a prior

pending suit is based upon broader principles: comity, convenience, and the necessity for orderly

procedure in the trial of contested issues.” Hopkins v. NCNB Tex. Nat. Bank, 822 S.W.2d 353, 355

(Tex. App.—Fort Worth 1992, no writ) (citing Wyatt, 760 S.W.2d at 248). Where there is “an

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obvious interrelationship between the subject matter of the case, a trial court is required to grant a

plea in abatement. See Hopkins, 822 S.W.2d at 355. A trial court abuses its discretion if it fails to

grant a plea in abatement when abatement is mandatory. Coastal Oil & Gas Corp. v. Garza Energy

Trust, 268 S.W.3d 1, 26 (Tex. 2008).

In the present case, Leticia’s standing in the probate case was dependent on the final

determination of her appeal of her divorce—if the divorce was upheld, she would not have standing

but if the divorce was voided, she would have standing. It necessarily follows that a final judgment

on standing should have been deferred until Leticia’s appeal of her divorce was resolved.

Given the uniqueness of the facts of this case, there is little case law directly on point. But

this approach, and conclusion, is supported by cases addressing a taxing unit’s right to proceed

with a Chapter 33 suit against a property owner whose Chapter 42 appeal is pending and undecided

in district court. See, e.g., Carrollton-Farmers Branch Indep. Sch. Dist. v. JPD, Inc., 168 S.W.3d

184, 187 (Tex. App.—Dallas 2005, no pet.); Valero Transmission Co. v. San Marcos Consol.

Indep. Sch. Dist., 770 S.W.2d 648, 652 (Tex. App.—Austin 1989, writ denied); New v. Dallas

Appraisal Review Bd., 734 S.W.2d 712, 716–17 (Tex. App.—Dallas 1987, writ denied). In these

cases, it was determined that because a taxing authority’s “legal right to the taxes claimed in its

Chapter 33 suit depends upon the validity of the appraised value assigned” to the property at issue,

“[o]rderly procedure requires . . . that judgment in the Chapter 33 suit be deferred until [the

property owner’s] Chapter 42 ‘appeal’ has been finally determined.” Valero Transmission Co.,

770 S.W.2d at 652; see also JPD, Inc., 168 S.W.3d at 187 (“A taxing unit’s legal right to taxes

claimed in a chapter 33 lawsuit depends upon the final determination of the appraised value of the

property. . . . [I]t necessarily follows that judgment in the chapter 33 delinquency lawsuit be

deferred until the chapter 42 appraisal appeal is resolved.”); New, 734 S.W.2d at 717 (“[O]nce the

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issue of valuation of the property is properly on appeal . . . an action by a taxing authority for the

balance of the taxes is premature until the order on valuation becomes final.”). 4

In similar fashion, Linda’s motions to strike Leticia’s filings and dismiss Leticia from the

probate proceeding relied on the validity of the divorce decree. Accordingly, there was an inherent

interrelationship between Leticia’s appeal of that divorce and the issue of standing in the probate

case. Orderly procedure required the probate court to defer judgment until the appeal was resolved.

We sustain Leticia’s first issue.

B. Should the probate court’s dismissal of Leticia be reversed?

In her second issue Leticia asserts the probate court’s decision to dismiss her from the

probate matter for lack of standing should be reversed. We agree.

In the present case, Leticia’s divorce judgment precluded her from establishing standing.

Accordingly, the probate court struck Leticia’s pleadings and dismissed her from the proceedings

on the grounds that she lacked standing. But the Supreme Court of Texas has since vacated the

divorce decree. Matter of Marriage of Benavides, 712 S.W.3d at 580. Therefore the prior judgment

4
In Scurlock Oil Co. v. Smithwick, the Supreme Court of Texas ruled that “a judgment is final for the
purposes of issue and claim preclusion ‘despite the taking of an appeal unless what is called an appeal
actually consists of a trial de novo.’” 724 S.W.2d 1, 6 (Tex. 1986). However, “[t]he principal reason [the
Supreme Court] cited for this rule was the nonsensical alternative of retrying the same issues between the
same parties in subsequent proceedings with the possibility of inconsistent results.” Tex. Beef Cattle Co. v.
Green, 921 S.W.2d 203, 207 (Tex. 1996) (citing Scurlock, 724 S.W.2d at 6) (emphasis in original).
Accordingly, in addition to the property tax cases we have already cited, the Supreme Court of Texas has
carved out exceptions to Scurlock when the issues are not the same in both cases, but the issues in the
second case are predicated upon a final decision in the first. See, e.g., In re State Farm Mut. Auto. Ins. Co.,
712 S.W.3d 53, 64-66 (Tex. 2025) (holding the trial court clearly abused its discretion in denying a motion
to bifurcate and abate plaintiff’s extracontractual claims of bad faith until plaintiff received a judgment that
she was actually owed uninsured motorist benefits under the policy); Tex. Beef Cattle Co., 921 S.W.2d at
208 (“[A]n underlying civil suit has not terminated in favor of a malicious prosecution plaintiff until the
appeals process for that underlying suit has been exhausted.”). This distinction is also recognized when
applying tolling rules. See Apex Towing Co. v. Tolin, 41 S.W.3d 118, 119 (Tex. 2001) (“When an attorney
commits malpractice in the prosecution or defense of a claim that results in litigation, the statute of
limitations on a malpractice claim against that attorney is tolled until all appeals on the underlying claim
are exhausted or the litigation is otherwise finally concluded.”).

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which Linda relied on to support her standing argument has been nullified. See Watson v. Houston

Indep. Sch. Dist., No. 01-04-01116-CV, 2005 WL 3315254, at *1 (Tex. App.—Houston [1st Dist.]

Dec. 8, 2005, no pet.) (mem. op.) (“The earlier judgment against Frank is no longer a final

judgment because a reversed judgment is generally nullified, leaving it as if it had never been

rendered other than as to further rights of appeal.”). As such it is no longer a judgment that can

support the probate court’s ruling. See Scurlock, 724 S.W.2d at 6 (“A judgment in a second case

based on the preclusive effects of a prior judgment should not stand if the first judgment is

reversed.”); see also In re A.K.B., 2024 WL 3056663, at *26 (“When an appellate court reverses

the first judgment, the finality necessary for claim or issue preclusion is eliminated.”) (quoting

Waller v. Waller, No. 12-19-00326-CV, 2020 WL 5406246, at *2 (Tex. App.—Tyler Sept. 9, 2020,

no pet.)). In re A.K.B., No. 04-23-00154-CV, 2024 WL 3056663, at *26 (Tex. App.—San Antonio

June 20, 2024, pet. denied) (mem. op.) (“Because the judgment in Father’s first appeal was

reversed, he cannot now rely on that judgment to assert claim preclusion—also known as res

judicata—or issue preclusion—also known as collateral estoppel—as there was no final

judgment.”) (quoting In re J.W., No. 06-21-00074-CV, 2022 WL 68229, at *8 (Tex. App.—

Texarkana Jan. 7, 2022, pet. denied)). With the divorce voided, Leticia qualifies as an interested

person under section 22.018(a). See TEXAS ESTATES CODE § 22.018(a) (“‘Interested person’ or

‘person interested’ means: (1) an heir, devisee, spouse, creditor, or any other having a property

right in or claim against an estate being administered. . . .”) (emphasis added). We sustain Leticia’s

second issue.

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CONCLUSION

For the reasons stated above, we reverse the judgment of the trial court and remand this

case for further proceedings consistent with this opinion. 5

H. Todd McCray, Justice

5
Any other relief sought by either of the parties is denied.

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