COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: Olga de la Cerda-Cabrera, Independent Executrix of the Estate of
Rosie A. Zuniga, Deceased, Appellant v. Chase Manhattan Bank USA,
N.A.; Hull & Associates, P.C. a/k/a James N. Hull & Associates, P.C.;
James N. Hull; and Palisades Collection, LLC, Appellees
Appellate case number: 01-11-00320-CV
Trial court case number: 2009-65455
Trial court: 61st District Court of Harris County
Appellees Chase Manhattan Bank USA, N.A.; Hull & Associates, P.C. a/k/a James N.
Hull & Associates, P.C.; James N. Hull; and Palisades Collection, LLC argued in their appellate
brief that Rosie A. Zuniga’s declaratory judgment claims were mooted by her death during the
pendency of this appeal. We construe appellees’ argument as a motion to dismiss the appeal for
want of jurisdiction.
After learning of Zuniga’s passing, we asked Zuniga’s counsel to file a supplemental
brief explaining what effect, if any, her death had on this appeal. Olga de la Cerda-Cabrera was
subsequently appointed Independent Executrix of Zuniga’s estate. Cerda-Cabrera ratified the
contract with Zuniga’s attorneys and authorized them to proceed with the appeal. In her
supplemental brief, Cerda-Cabrera argued that Zuniga sought “a declaratory judgment that the
Texas post-judgment garnishment statute, as implemented, violates the due process clause of the
Fourteenth Amendment and the Supremacy Clause,” and, as such, her claim was cognizable
under both the Declaratory Judgment Act and 42 U.S.C. § 1983. She argued that § 1983 claims
survive to and in favor of the heirs, legal representatives of the person’s estate, and therefore, to
the extent that declaratory relief was sought under § 1983, the declaratory judgment action
should survive Zuniga’s death as well.
Appellees argued that because Zuniga died after she filed her notice of appeal, her
declaratory judgment claims were moot because there will be no further opportunity to garnish
her bank accounts. According to appellees, those accounts will either be devised in a will or pass
through intestacy laws, and the garnishment statutes will no longer affect Zuniga.
It is well settled that a money judgment obtained against a decedent during his lifetime is
a claim that must be presented to the executor or administrator and enforced through the probate
court. See Jenkins v. Cain, 72 Tex. 88, 10 S.W. 391 (1888); Dent v. A. Harris & Co., 255 S.W.
221 (1923); see also First Nat. Bank of Bowie v. Cone, 170 S.W.2d 782 (Civ. App. 1943), writ
ref’d; Long v. Castaneda, 475 S.W.2d 578 (Tex. Civ. App.—Corpus Christi 1971, writ ref’d
n.r.e.). Generally, funds and other property that are in hands of an executor are considered to be
in the custody of the law, and are therefore exempt from garnishment. See Huggins v. Phillips,
275 S.W. 1084 (Tex. Civ. App.—Waco 1925, writ dism’d). The purpose of this general rule is
to prevent conflicts of jurisdiction from one court to another and to insure orderly judicial
procedure in the administration of the funds. Id. Once a court has entered a decree or order for
the distribution of the funds and nothing remains for the custodian of the funds to do but to make
delivery or payment to the person entitled, however, the rule of exemption from garnishment
ceases. See Sw. Bell Tel. Co. v. Watson, 413 S.W.2d 846, 848 (Tex. App.—Corpus Christi 1967,
no writ). Zuniga was living off of her social security benefits at the time of her death and the
judgment in favor of appellees was only partially satisfied by the garnishment proceeding. Thus,
even though Zuniga, individually, will no longer be affected by the garnishment statute, there is a
strong possibility that her estate may be affected by the statute in the future.
Appellees’ motion to dismiss appellant’s declaratory judgment claims is DENIED.
Judge’s signature: /s/ Jim Sharp
 Acting individually  Acting for the Court
Date: August 26, 2013