in the Estate of Jessie Gray ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00271-CV
________________________
IN THE ESTATE OF JESSIE GRAY, DECEASED
On Appeal from the County Court
Bailey County, Texas
Trial Court No. 2556; Honorable Sherri Harrison, Presiding
June 10, 2014
CONCURRING OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
I concur with the opinion of the majority. I write separately, however, to express
my opinion that, while the trial court’s judgment, entitled Order for Delivery of
Homestead Property to Surviving Spouse might be construed as determining that
Appellee, Celia Gray, has a life-time possessory interest in the property the subject of
this dispute, this Court’s opinion should not be read as reaching that conclusion.
As the majority correctly states, we are faced with a situation where the record
was not sufficiently developed to allow this Court, or the trial court, to determine whether
the disputed property was “among the decedent’s effects” and therefore, subject to an
order of delivery pursuant to section 272, or an allowance in lieu of exempt property
pursuant to section 273 of the Texas Probate Code. See TEX. PROB. CODE ANN. §§ 272,
273 (West Supp. 2013).1 However, as stated by the majority, in the absence of
evidence to the contrary, we must assume the record supports the trial court’s implied
decision that the property was a part of the decedent’s estate. Accordingly, I believe the
opinion of this Court should be construed no further than saying the trial court did not err
in ordering that Celia Gray holds a possessory homestead interest in whatever property
interest the Estate of Jessie Gray might have owned upon his death.
Patrick A. Pirtle
Justice
1
In 2009, the Texas Legislature repealed the Texas Probate Code with an effective date of
January 1, 2014, and recodified the statutes as the Estates Code. See Act of May 26, 2009, 81st Leg.,
R.S., ch. 680, §§ 1, 10(a), 2009 Tex. Gen. Laws 1512, 1731-32. Section 272 is now section 353.052, and
section 273 is now section 353.053. See TEXAS ESTATES CODE ANN. §§ 353.052 & 353.053 (West
Pamphlet 2013).
2