Rogelio Estrada Rodriguez v. Gabriella Nicole McDow

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00362-CV
__________________

ROGELIO ESTRADA RODRIGUEZ, Appellant

V.

GABRIELLA NICOLE MCDOW, Appellee

__________________________________________________________________

On Appeal from the Probate Court No. 1
Montgomery County, Texas
Trial Cause No. 23-33141
__________________________________________________________________

MEMORANDUM OPINION

Appellee Gabriella Nicole McDow (“Appellee” or “Gabriella”) filed a

Petition for Bill of Review from a probate case, challenging the prior Judgment

Declaring Heirship because she did not receive notice of the probate proceedings,

and she sought a declaration that she was an heir of decedent Maria Montalvo

Rodriguez (“Maria”). After a hearing, the trial court signed a Final Order granting

the Bill of Review finding for Gabriella. Appellant Rogelio Estrada Rodriguez

1
(“Appellant” or “Rogelio”) timely filed a notice of appeal. We affirm in part and

reverse and remand in part.

Background

Maria Montalvo Rodriguez died intestate on December 29, 2020. The trial

court signed a Judgment of Heirship on February 3, 2022, which showed the

following:

Heir Share of Decedent’s Share of Decedent’s Share of Decedent’s
Community Separate Real Separate Personal
Property Property Property
Rogelio Estrada 100% life estate in 1/3 1/3
Rodriguez
Spouse
Alejandro Rodriguez 0 1/2 subject to life 1/3
Child estate
Ana Maria McDow 0 1/2 subject to life 1/3
Child estate

Gabriella filed a Petition for Bill of Review in the County Court at Law No. 2

for Montgomery County, Texas on March 30, 2023, and a First Amended Verified

Petition on September 15, 2023. Gabriella’s Amended Petition, the live pleading at

the time of trial, stated that she was filing her bill of review under section 55.251 of

the Texas Estates Code, 1 and she asked that the Judgment Declaring Heirship signed

by the trial court on February 3, 2022, be set aside.

1
Section 55.251 of the Texas Estates Code provides a statutory bill of review:
(a) An interested person may, by a bill of review filed in the court in
which the probate proceedings were held, have an order or judgment
rendered by the court revised and corrected on a showing of error in the
order or judgment, as applicable.
2
According to the Petition, Maria had two children: (1) Alejandro Rodriguez

(“Alejandro”), whom Maria had with her husband Rogelio, and (2) Ana Maria

McDow (“Ana”), who was born prior to and outside of Maria’s and Rogelio’s

marriage and whom Rogelio did not adopt. The Petition alleges that both Alejandro

and Ana executed valid disclaimers of their interest in Maria’s estate. The Petition

further alleges that, at the time of her death, Maria had four grandchildren: Austin,

Brandon, Lucas, and Gabriella. Gabriella alleges that Austin, Brandon, and Lucas

also executed disclaimers of their interest in Maria’s estate.

Gabriella alleged she was a minor when Maria died, Gabriella did not execute

a waiver or disclaimer, and Gabriella was a living heir of Maria. She also alleged

she was entitled to receive notice of the probate proceedings, she did not receive

notice, and she did not execute a waiver of notice. Gabriella alleged in her Petition

that substantial error exists in the Judgment Declaring Heirship because it declares

that Rogelio is entitled to 100% of the community property, whereas under section

201.003(c) of the Texas Estates Code, 2 Gabriella was entitled to take 100% of

(b) A bill of review to revise and correct an order or judgment may not
be filed more than two years after the date of the order or judgment, as
applicable.
Tex. Est. Code Ann. § 55.251 (“Revision and Correction of Order of Judgment in
Probate Proceeding.”). The parties do not dispute whether Gabriella’s Petition was
timely filed.
2
Section 201.003(c) of the Texas Estates Code provides, in relevant part, “If
the deceased spouse is survived by a child or other descendant who is not also a child
or other descendant of the surviving spouse, the deceased spouse’s undivided one-
3
Maria’s share of any community property. Gabriella stated that she has a meritorious

claim and that she was prevented from asserting her claim through no fault or

negligence on her part. Therefore, she asked that the Judgment Declaring Heirship

be set aside and corrected.

Evidence and Arguments at the Bill of Review Proceeding

At the Bill of Review trial, Gabriella argued that she was a known heir at the

time of the proceedings to declare heirship, and her whereabouts were known to

Rogelio, who was the administrator of Maria’s estate. She further argued that under

section 202.051 of the Texas Estates Code, all heirs aged twelve or older whose

whereabouts are known must receive notice of the proceedings.3 She further argued

that the attorney ad litem had filed a report wherein he “flagged the issue that Ana

and Alejandro’s disclaimers might mean [] that the grandchildren became heirs”

under section 240.051 of the Texas Property Code because, having disclaimed their

own interest, their interest passed to their surviving descendants. At the time of the

heirship proceedings, Alejandro did not have children, and Ana had four children:

Austin, Lucas, Brandon, and Gabriella. According to Gabriella, there was untrue

half interest in the community estate passes to the deceased spouse’s children or
other descendants.” Tex. Est. Code Ann. § 201.003(c).
3
Section 202.051(1) of the Texas Estates Code states, “citation in a
proceeding to declare heirship must be served by a qualified delivery method on []
each distributee who is 12 years of age or older and whose name and address are
known or can be ascertained through the exercise of reasonable diligence[.]” Tex.
Est. Code Ann. § 202.051(1).
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testimony at the heirship proceedings that Ana and Alejandro both are Rogelio’s

children, but Ana was not Rogelio’s biological nor adopted child. She further argued

that under section 201.003 of the Texas Estates Code, 100% of Maria’s share of

community property should go to her children or other descendants, and although

three of Ana’s children (Austin, Lucas, and Brandon) filed disclaimers of their

interest, Gabriella did not.

Rogelio argued that the Judgment Declaring Heirship was correct because it

accurately named Maria’s two children, Alejandro and Ana, and correctly identified

their interests.

Gabriella testified that she was born on December 18, 2004, Ana is her

mother, Maria was her grandmother, and Rogelio is her “step-grandfather.” She

recalled that she was sixteen years old when Maria died. She testified that she did

not receive notice of the probate proceeding and that she had not signed a waiver of

notice or citation. According to Gabriella, she was not contacted by Rogelio’s

attorney nor by the attorney ad litem, she did not sign a disclaimer of her interest in

Maria’s estate, and she did not participate in the prior probate proceeding. Gabriella

recalled that, when Maria died, Gabriella was living with her mother (Ana), and that

Rogelio knew that she was living with Ana.

Ana testified that Maria was her mother, and she identified Exhibit PX-6 as

her birth certificate. The birth certificate does not include her father’s name, but Ana

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testified that she learned from her mother and other relatives that her father was

Francisco Pinto. Ana recalled that she did not have contact with Francisco when she

was growing up, and she and her mother lived with her mother’s employers—a

family for whom Maria worked as a housekeeper. Ana testified that Rogelio is her

step-father, Alejandro is her half-brother, and Rogelio did not adopt her. Ana

understood that Maria died without a will and that Rogelio was the administrator for

Maria’s estate. She recalled that the attorney ad litem contacted her during the

pendency of the probate, and she signed a waiver of notice for those proceedings.

Ana testified that she participated in the prior hearing in the probate proceedings,

she identified the Disclaimer she signed in October of 2021 disclaiming any interest

in Maria’s estate, and she testified that Rogelio asked her to sign it. According to

Ana, she did not know what interest she had in Maria’s estate.

Ana testified that she has four children—Austin, Lucas, Brandon, and

Gabriella—all of whom lived with her at the time of the prior proceeding except for

Austin. According to Ana, Rogelio knew where she lived, and he knew that Gabriella

lived with her at the time. Ana recalled she attended the prior hearing along with

Rogelio, Alejandro, and the attorney ad litem, but her children did not attend. Ana

explained that after the hearing, she learned from a friend that Gabriella may have

been left out of the distribution of the estate.

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On cross-examination, Ana testified that the attorney ad litem had asked her

about her children, but she did not recall whether the judge had. Ana believed that

the attorney ad litem knew she had children although she had not told him so. Ana

“vaguely” remembered saying that she wanted her mother’s property to go to

Rogelio.

The trial court took judicial notice of the file for the underlying probate

proceedings, and a transcript of the prior hearing was admitted into evidence. The

transcript reflects that Ana testified that it was her desire for her mother’s property

to go to her “father,” which is why she signed the Disclaimer. On redirect, Ana

testified that when she was questioned at the previous hearing and asked about her

“father,” she did not correct the questioner because she knew that they were referring

to Rogelio, her step-father, and she “didn’t know to correct” the question. According

to Ana, she was never directly asked whether Rogelio was her biological or adopted

father.

The transcript from the previous hearing reflects that Rogelio testified that

there were two children born of his marriage to Maria—Ana and Alejandro:

[Rogelio’s counsel]: And you and Mrs. Rodriguez, this was your only
marriage?

[Rogelio]: Yes.

[Rogelio’s counsel]: And you were married for how long?

[Rogelio]: Over 37 years.
7
[Rogelio’s counsel]: Thirty seven years, okay. And of this marriage,
there were two children born, correct?

[Rogelio]: Correct.

[Rogelio’s counsel]: What are their names?

[Rogelio]: Ana Montalvo and Alejandro Rodriguez.

The transcript in the underlying probate also reflects that Claudia Montalvo 4 testified

that Alejandro and Ana were the biological children of Maria and Rogelio. Claudia

also testified that Alejandro’s sister had four children. Alvaro Montalvo also testified

that he was Maria’s brother, that Maria and Rogelio had two children—Ana and

Alejandro—and that Ana had four children. Ana testified that she had four children:

Austin, Lucas, Brandon, and Gabriella and agreed that “as far as [she] kn[e]w,” the

children wanted Rogelio to inherit whatever Maria had. She also testified that the

younger two children, Brandon and Gabriella, were younger than eighteen, and Ana

consented on their behalf to Rogelio acting as administrator of Maria’s estate. The

trial court asked Rogelio’s attorney to get waivers from “the two adult children[.]”

Also admitted into evidence was Petitioner’s First Request for Admissions served

on Rogelio, in which Rogelio admitted that Gabriella is Maria’s granddaughter.

4
Claudia did not testify about her relationship to the parties.
8
The Trial Court’s Ruling in the Bill of Review Proceeding

After hearing testimony and receiving evidence, the trial court announced

from the bench that it was ruling in favor of the plaintiff, Gabriella. On October 16,

2023, the trial court signed an order stating, in relevant part,

After receiving evidence and hearing argument the Court finds for the
Plaintiff. It is therefore ordered that the Judgement Declaring Heirship
rendered in cause number 21-41018-P previously filed in County Court
at Law #2 is/are set aside and the probate matter is reinstated on this
Court’s active docket. This judgment is (1) final, (2) a disposition of all
claims and parties, and (3) appealable.

Rogelio requested Findings of Fact and Conclusions of Law. The trial court issued

Findings of Fact and Conclusions of Law, which state, in relevant part:

FINDINGS
....
4. Ana Maria McDow and Alejandro Rodriguez filed disclaimers in the
heirship proceeding.
5. Gabriella McDow, daughter of Ana Maria McDow and
granddaughter of the decedent filed this bill of review complaining:
a. She was not served and should have been served as the
disclaimer of Ana Maria McDow caused her to be an heir of the
decedent.
b. The judgment rendered is incorrect.
6. Gabriella McDow was not served in the heirship case.
7. Rogelio Estrada Rodriguez and/or the witnesses were questioned by
this court as to whether Rogelio Estrada Rodriguez was the biological
parent of Alejandro Rodriguez and Ana Maria McDow during the
heirship proceeding to which there was an affirmative response.
a. This information was not true.

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CONCLUSIONS OF LAW

1. The bill of review was timely filed and the Court has jurisdiction over
the bill of review as judgement in the underlying case was had in this
Court.
2. The disclaimer(s) do not change the identities of the intestate heirs
of the decedent.
3. Ana McDow is not an heir of the decedent, and was not entitled to
service in the heirship proceeding.
4. The Court had jurisdiction over the heirship and all required notices
and service were completed.
5. The judgment of heirship contains an error regarding the percentages
of the estate attributable to the heirs.
a. The untruthful response(s) that the decedent’s spouse was the
biological parent of the decedent’s children resulted in Rogelio
Estrada Rodriguez’ assignment of 100% of the decedent’s
community property as opposed to 0% which would have been
the case had a truthful answer been given to this Court’s question.

Rogelio timely filed a Notice of Appeal.

Issues

On appeal, Rogelio argues that the trial court erred by granting the bill of

review and setting aside the Judgment Declaring Heirship for two reasons: (1) the

Judgment Declaring Heirship correctly identified Maria’s heirs, and (2) Gabriella

was not entitled to notice of the heirship proceeding. In a third issue, Rogelio argues

that the trial court erred by concluding as a matter of law that Ana was not Maria’s

heir.

Standard of Review

“A bill of review is brought as a direct attack on a judgment that is no longer

appealable or subject to a motion for new trial.” Frost Nat’l Bank v. Fernandez, 315
10
S.W.3d 494, 504 (Tex. 2010); see also Valdez v. Hollenbeck, 465 S.W.3d 217, 226

(Tex. 2015). “The purpose of a direct attack is to change the former judgment and

secure the entry of a correct judgment in lieu of the earlier incorrect one.” Austin

Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973).

Section 55.251 of the Texas Estates Code provides for a statutory bill of

review whereby “[a]n interested person may, by a bill of review filed in the court in

which the probate proceedings were held, have an order or judgment rendered by the

court revised and corrected on a showing of error in the order or judgment,” provided

the bill of review is filed not more than two years after the date of the order or

judgment. See Tex. Est. Code Ann. § 55.251; Valdez, 465 S.W.3d at 226-27. The

interested party filing a bill of review is required to prove that the trial court

committed substantial error. See Ablon v. Campbell, 457 S.W.3d 604, 609 (Tex.

App.—Dallas 2015, pet. denied); Buck v. Estate of Buck, 291 S.W.3d 46, 53 (Tex.

App.—Corpus Christi–Edinburg 2009, no pet.). The movant must prove the error by

a preponderance of the evidence, and the error need not appear on the face of the

record and may be proved at trial. See In re Miramontes, 648 S.W.3d 590, 601 (Tex.

App.—El Paso 2022, no pet.) (citing Chavez v. Chavez, No. 01-13-00727-CV, 2014

Tex. App. LEXIS 11557, at *4 (Tex. App.—Houston [1st Dist.] Oct. 21, 2014, no

pet.) (mem. op.)).

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We review a trial court’s ruling on a bill of review for an abuse of discretion,

indulging every presumption in favor of the trial court’s ruling. See Woods v.

Kenner, 501 S.W.3d 185, 190 (Tex. App.—Houston [1st Dist.] 2016, no pet.);

Xiaodong Li v. DDX Grp. Inv., LLC, 404 S.W.3d 58, 62 (Tex. App.—Houston [1st

Dist.] 2013, no pet.). A trial court abuses its discretion if it acts in an unreasonable

or arbitrary manner, or without reference to guiding rules and principles. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

Ordinarily, an order granting a bill of review is an interlocutory order and it

is not considered to be a final appealable judgment unless it also disposes of all

issues and claims. See Kiefer v. Touris, 197 S.W.3d 300, 302 (Tex. 2006) (“A bill of

review which sets aside a prior judgment but does not dispose of all the issues of the

case on the merits is interlocutory in nature and not a final judgment appealable to

the court of appeals or the supreme court.”); Barnett Cycles, LLC v. Cornstubble,

No. 09-23-00216-CV, 2025 Tex. App. LEXIS 176, at **1-2 (Tex. App.—Beaumont

Jan. 16, 2025, no pet. h.) (mem. op.) (dismissing an appeal from an order granting a

bill of review because the order was interlocutory); In re Est. of Carr, No. 04-23-

00287-CV, 2024 Tex. App. LEXIS 7827, at **7-9 (Tex. App.—San Antonio, Nov.

6, 2024, pet. filed) (mem. op.) (dismissing an appeal from an order granting a bill of

review in probate proceedings for lack of jurisdiction because the order did not

dispose of all issues and all parties and did not end a discrete phase of the

12
proceedings). That said, in this case, the trial court’s Final Order includes the

following language: “This judgment is (1) final, (2) a disposition of all claims and

parties, and (3) appealable.” We conclude that the trial court used unmistakable

language of finality, and the otherwise unappealable Final Order granting the Bill of

Review is appealable, and we therefore address whether the trial court erred in

granting the bill of review. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203-04

(Tex. 2001) (When the order contains unmistakable language of finality, “an order

can be final and appealable when it should not be[]” or even if it grants “more relief”

than the movant is entitled to receive.).5

Analysis

We first address whether Gabriella, the party who filed the bill of review,

proved that the trial court committed substantial error. See Ablon, 457 S.W.3d at

609; Buck, 291 S.W.3d at 53. In the previous proceeding, Rogelio testified that there

were two children born of his marriage to Maria: Ana and Alejandro. However, in

the bill of review proceeding, Ana testified that she was born of the relationship Ana

had with Francisco Pinto. Her birth certificate was admitted into evidence, and it

does not provide the name of her father. Ana testified that Rogelio is her step-father

and that Rogelio did not adopt her. Ana’s testimony about her true biological father

5
Neither party challenges whether the trial court’s order in the Bill of Review
proceeding is a final appealable order.
13
was undisputed in the bill of review proceeding. Therefore, the evidence in the Bill

of Review proceeding supports the trial court’s finding #7:

7. Rogelio Estrada Rodriguez and/or the witnesses were questioned by
this court as to whether Rogelio Estrada Rodriguez was the biological
parent of Alejandro Rodriguez and Ana Maria McDow during the
heirship proceeding to which there was an affirmative response.
a. This information was not true.

We conclude that Gabriella met her burden to prove there was a substantial error in

the previous heirship proceeding and Judgment Declaring Heirship, and we cannot

say the trial court abused its discretion in granting the Bill of Review and setting

aside the court’s previous judgment in the heirship proceeding. See Ablon, 457

S.W.3d at 609; Buck, 291 S.W.3d at 53. We overrule Appellant’s first issue.

Next, we address Appellant’s third issue, wherein Appellant argues that the

trial court erred by concluding that Ana had disclaimed her interest and she therefore

was no longer Maria’s heir. The Texas Estates Code defines “heir” as “a person who

is entitled under the statutes of descent and distribution to a part of the estate of a

decedent who dies intestate.” Tex. Est. Code Ann. § 22.015. Under the Texas

Property Code, where property passes because of an owner’s death, a person may

disclaim their interest in the property and such a disclaimer relates back to and takes

effect at the time of the decedent’s death. Tex. Prop. Code Ann. § 240.051(b)(1).

“[I]f the disclaimant is an individual [and] the interest is passing because of the death

of a decedent, the disclaimed interest passes as if the disclaimant had died

14
immediately before the time as of which the disclaimer takes effect[,]” and “[a]

disclaimed interest that passes by intestacy passes as if the disclaimant died

immediately before the decedent.” Id. § 240.051(e)(2)(A), (f).

Ana testified in the previous heirship proceeding that she had filed a

Disclaimer. A copy of her Disclaimer was admitted into evidence in the Bill of

Review proceedings. Therefore, under section 240.051 of the Property Code, the

effect of her Disclaimer was that her disclaimed interest passed as if she had died

immediately before Maria. See id. Ana’s disclaimer was effective at the time of

Maria’s death. See id. § 240.051(b)(1). Therefore, Ana was not an heir because she

was not entitled to a distribution of Maria’s estate. See Tex. Estates Code Ann.

§ 22.015. Ana’s disclaimed interest passed as if she had died immediately before the

time the disclaimer took effect—when Maria died. See In re Est. of Wells, No. 12-

23-00066-CV, 2023 Tex. App. LEXIS 8475, at **20-21 (Tex. App.—Tyler Nov. 8,

2023, pet. denied) (mem. op.) (citing Tex. Prop. Code Ann. § 240.051(b), (e)). Ana’s

other three children—Austin, Brandon, and Lucas—disclaimed their interests in

Maria’s estate, so Ana’s interest passed to Gabriella. We overrule Appellant’s third

issue.

Finally, we address Appellant’s second issue, in which Appellant argues that

Gabriella was not entitled to notice of the heirship proceedings. The record does not

reflect that Appellant made this argument at the Bill of Review proceeding, which

15
is required to preserve error for appeal. See Tex. R. App. P. 33.1. Gabriella’s

testimony in the Bill of Review hearing that she did not receive notice of the heirship

proceedings was uncontroverted. We overrule Appellant’s second issue.

Neither party has raised any issue on appeal about the language in the trial

court’s Final Order that states it has reinstated the prior probate proceeding (trial

cause number 21-41018-P) “on the court’s active docket.” That said, we may address

jurisdictional matters sua sponte. See M.O. Dental Lab v. Rape, 139 S.W.3d 671,

673 (Tex. 2004).

Under section 55.251 of the Texas Estates Code, a statutory bill of review is

available “to revise and correct an order or judgment[.]” Tex. Est. Code Ann.

§ 55.251(b). The bill of review is filed in the court in which the probate proceedings

were held. Here, Gabriella filed her Petition for Bill of Review in the same probate

court where the probate proceedings were held, and the bill of review petition was

docketed under a new cause number.

If a trial court denies a bill of review, the order denying the bill of review

becomes a final order for purposes of appeal. Alaimo v. U.S. Bank Trust Nat’l Assoc.,

551 S.W.3d 212, 215 (Tex. App.—Fort Worth 2017, no pet.) (citing Baker v.

Goldsmith, 582 S.W.2d 404, 409 (Tex. 1979)). If the trial court grants the bill of

review, a second step follows in the bill of review proceeding: adjudication of the

original, underlying cause of action. Id. (citing Hartford Underwriters Ins. v. Mills,

16
110 S.W.3d 588, 590 (Tex. App.—Fort Worth 2003, no pet.)); see also Baker, 582

S.W.2d at 409. The second step should occur in the bill of review cause of action,

not the original action, because a judgment in a bill of review proceeding does not

restore a trial court’s plenary power in the underlying cause. Alwazzan v. Alwazzan,

No. 01-11-00316-CV, 2024 Tex. App. LEXIS 4233, at *16 (Tex. App.—Houston

[1st Dist.] June 20, 2024, no pet.) (mem. op.).

When a bill of review is granted, the underlying judgment is vacated
but the parties proceed to final judgment in the bill of review
proceeding on the merits of the underlying claims in the bill of review
proceeding, not in the underlying case in which the judgment was
vacated. The merits must be resolved in the bill of review case because
the court’s plenary power in the underlying case has expired and
therefore, the trial court lacks subject-matter jurisdiction over that case.
...
[A] bill of review is a different procedural device—it is both filed and
resolves the underlying dispute in a separate lawsuit. It does not,
therefore, restore a court’s plenary power over a cause of action that
has been resolved by final judgment.

Alaimo, 551 S.W.3d at 216-17.

Here, the trial court’s Final Order sets aside its ruling in cause number 21-

41018-P and then it purports to “reactivate” the probate case. However, the trial

court’s plenary power in that case had expired. See Tex. R. Civ. P. 329b. Because

the original case was final and no longer appealable, every issue arising on the merits

should be disposed of in the suit on the petition for a bill of review. See Kiefer, 197

S.W.3d at 302.

17
Therefore, we affirm that portion of the trial court’s Final Order vacating the

prior Judgment Declaring Heirship in trial cause number 21-41018-P, we reverse

that portion of the trial court’s Final Order that states, “the probate matter is

reinstated on this Court’s active docket[,]” and we remand this matter to the trial

court for a final determination of heirship to be conducted in the Bill of Review

proceeding.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

LEANNE JOHNSON
Justice

Submitted on September 25, 2024
Opinion Delivered March 6, 2025

Before Johnson, Wright and Chambers, JJ.

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