Leslie Bean v. Amy Sue Bean

Affirmed and Opinion Filed December 13, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00286-CV
LESLIE BEAN, Appellant
V.
AMY SUE BEAN, Appellee
On Appeal from the Probate Court No 2
Harris County, Texas
Trial Court Cause No. 467,316-402
OPINION
Before Justices Partida-Kipness, Reichek, and Goldstein
Opinion by Justice Partida-Kipness
This probate-related appeal presents the Court with an issue of first impression
concerning the proper marital characterization of property utilized or received by an
astronaut during Apollo-era space programs. Such “artifacts” were in the decedent
Alan Lavern Bean’s (Alan’s) possession before his 1982 marriage to appellant Leslie
Bean (Leslie). Alan consistently characterized the artifacts as his separate property,
and Congress confirmed “full ownership” and “clear title” of such artifacts in 2012
when it enacted H.R. 4158. See Owners and Ownership—Artifacts of Astronauts,
Pub. L. No. 112-185, 126 Stat. 1425 (2012) (“An Act To confirm full ownership
rights for certain United States astronauts to artifacts from the astronauts’ space
missions.”). The probate court concluded thirty-nine artifacts were Alan’s separate
property. Leslie appeals1 that ruling. Finding no error, we affirm.
BACKGROUND
Alan was a NASA astronaut in the 1960s and 1970s. In November 1969, Alan
made his first flight into space as a member of the Apollo 12 crew. During that
mission, Alan became the fourth man to walk on the Moon. In 1973, he served as
Commander of NASA’s Skylab III mission. During his career at NASA, Alan
obtained many artifacts and mementos, some of which were items brought back from
his two space missions. Alan had many of those “space artifacts” in his possession
at the time of his death. The overarching question on appeal is whether the trial court
erred by characterizing thirty-nine of those artifacts as Alan’s separate property for
purposes of probating Alan’s estate.
I. Alan’s First Marriage
Alan married his first wife, Sue Ragsdale Bean (Sue), in 1955. He and Sue
had two children, appellee Amy Sue Bean (Amy) and Clay Bean (Clay). Amy is
Alan’s sole-surviving child.2 Alan and Sue separated in April 1976, and divorced on
October 7, 1976. As part of the divorce, Alan and Sue voluntarily entered into a
Property Settlement and Division Agreement (the property settlement), which
1
This appeal was transferred to this Court from the Fourteenth District Court of Appeals in Houston
pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE §
73.001. Because this is a transfer case, we apply the precedent of the Fourteenth Court of Appeals to the
extent it differs from our own. See TEX. R. APP. P. 41.3.
2
Although Clay survived his father, he died on December 6, 2019.
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divided the community property and designated the parties’ separate property.
Exhibit A to the property settlement listed Alan’s personal property. That list of
personal property included:
 “All space pictures, mementos, awards.”
 “Alan Bean’s desk and contents, chair and lamp. All books,
awards, artifacts, etc.” in Alan’s study.
 “½ of all space flown Apollo and Skylab flags and medallions.”
 “N.A.S.A. documents” in Clay’s bedroom.
Alan retired from NASA and the United States Air Force in 1981.
II. Alan’s Second Marriage
Alan married Leslie, his second wife, in 1982. Before the marriage, Alan and
Leslie entered into an Agreement in Contemplation of Marriage (the prenuptial
agreement), which they signed on July 15, 1982. The stated purpose and intent of
the prenuptial agreement was to allow Alan and Leslie to each “continue to own and
to manage his or her separate property,” and own all increases from and bear all
obligations and liabilities of their respective separate property. Under the prenuptial
agreement, Alan and Leslie defined “separate property” as:
[C]onsisting of all property owned or claimed by the respective parties
prior to marriage, the property acquired by said party during marriage
by gift, devise or descent, and any recovery for personal injuries
sustained by the party during marriage, except any recovery for loss of
earning capacity during marriage, together with any traceable or
identifiable change in form or mutation of such property.
They further agreed to the following concerning their separate property:
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Separate Property of the Parties. All of the properties, both real and
personal, owned by each of the parties, respectively, as of the date of
this Agreement and as of the date of the marriage are hereby declared,
respectively, to be the separate property of such party; in addition, all
properties which are acquired after the marriage by each of the parties,
respectively, shall, to the extent acquired by gift, devise or descent or
by purchase with or exchange for separate property or obligations
binding only on separate property, be and remain the separate property
of such party.
The prenuptial agreement further stated “[f]or the purpose of segregating the
properties of the parties,” Alan’s separate property was set forth in Exhibit A
attached to the agreement, and Leslie’s separate property was set forth in Exhibit B.
The three-page list of Alan’s separate property on Exhibit A to the prenuptial
agreement stated Alan’s separate property consisted of “[a]ll items owned by Alan
L. Bean as of July 15, 1982” including but not limited to the items listed in Exhibit
A. The list included the following space-related items:
 “All space related photographs, models, mementos, awards,
coins, stamps, souveniers [sic], jewelry except for one Apollo 12
silver medallion.” (¶ 6);
 “All flags, jewelry, medallions, and other items that were taken
by Alan L. Bean on space flights.” (¶ 7);
 “All contents” of Alan’s carved desk. (¶ 21).
In addition to the separate property listed in Exhibits A and B, Alan and Leslie
agreed that any property acquired after the marriage “by gift, devise or descent or by
purchase with or exchange for separate property or obligations binding only on
separate property” would remain the separate property of the party acquiring it.
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III. Alan’s Will
Alan signed his Last Will and Testament (the Will) on April 25, 2007. The
Will mentions and incorporates the property settlement and the prenuptial agreement
and emphasizes Alan’s desire and intent to segregate his separate property, as set out
in Exhibit A to the prenuptial agreement, from his and Leslie’s community property.
In the Will, Alan updated the status of the items listed in Exhibit A to the prenuptial
agreement. Alan confirmed the items referencing space artifacts in Exhibit A were
within Alan’s possession at the time he executed the Will.
The Will states several times that Alan believes the items listed as his separate
property in the prenuptial agreement and in the Will are his separate property and
should be disbursed upon his death as he sets out in the Will:
 “I updated the information under this Section because I want the
reader to know this Will and the Exhibits that are attached for
reference purposes only clearly identify and enumerate those
items that are my separate property. Consequently, for good
reason, I direct my Executors and/or Trustees to rely on this Will|
with confidence when identifying, inventorying, appraising,
giving, devising, and bequeathing my separate property.”
 “Because of my experiences as a NASA Astronaut and my later
career as a dedicated artist, I am giving and bequeathing my
personal property with very specific instructions.”
 “I direct my Executors and/or Trustees to fully, faithfully, and
aggressively comply with the Sections entitled “My Separate
Property – A Precise Look After More Than 24 Years” through
and including “My Copyrights and Royalties.””
The sections of the Will entitled “My Separate Property – A Precise Look After
More Than 24 Years” through and including “My Copyrights and Royalties”
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comprise fifteen pages of the Will, include detailed descriptions of property, and
provide extensive, detailed instructions for how each item of property should be
handled upon Alan’s death.
In the first section, titled “My Separate Property – A Precise Look After More
Than 24 Years,” Alan listed several personal items that “were retained” as Alan’s
separate property, including his “space artifacts, mementos, coins, stamps, envelopes
(covers), and medallions” and his “personal desk.” The Will states each of the items
in that list “is conveyed under specific Sections of this Will, which follow.”
In the next section titled “A Roadmap for My Property’s Distribution,” Alan
states he is “giving and bequeathing my personal property with very specific
instructions” and “I have not conveyed any of my property (including . . . space
artifacts and mementos) at the time this Will was signed.” Alan also included
instructions for how to determine if Alan conveyed any separate property after
signing the Will. Specifically, Alan stated he “will issue the beneficiary a notarized
written receipt to that effect.” He instructed the trustees and executors to use the
existence of a notarized written receipt as a litmus test for ownership. If a party
claiming ownership could not produce a receipt, then the trustees and executors were
instructed to presume Alan did not promise the property to the alleged claimant, and
the person does not own the property.
In the section titled “NASA Property, Which was Given to Me, That is in My
Possession,” Alan states “certain artifacts, which flew aboard” the Apollo 12 and
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Skylab 3, Mission II flights were given to him by “NASA through officials at the
Johnson Space Center.” The Will states those artifacts are Alan’s “personal property
and should not be returned to NASA nor should they be brought to the undue
attention of the U.S. Government.” Those artifacts “include, but are not limited to
the following items”:
 Alan’s Apollo Suit Patch and PLSS Patches
 Alan’s Apollo 12 Hammer
 Alan’s Apollo 12 Checklist
 Alan’s Apollo 12 Core Tube Bit
According to the Will, Alan used the hammer on the Moon. The hammer was
scheduled to be left on the Moon, but Alan brought it back with him instead. Alan
states in the Will that “NASA reviewed the situation and said the hammer was mine
to keep.” For each item in the list, Alan suggested how the item should be handled
by his co-executors. He “strongly” encouraged the co-executors to keep his Apollo
suit patch and PLSS patches but allow them to be displayed in a museum replica of
his studio. He suggested the co-executors “loan but not give” the Apollo 12 hammer,
Apollo 12 checklist, and Apollo 12 core tube bit to the National Air and Space
Museum. Alan also explained he did not want the National Air and Space Museum
to be given those items permanently:
Based on my past dealings with the officials at the Air and Space
Museum, I know they will want my co-executors to give [the Apollo
12 Core Tube Bit] to the Museum, but my instructions need to be clear.
“Do not do this! Only loan this artifact.”
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Finally, under the section titled “My Space Artifacts and Mementos,” Alan stated
“All of my space artifacts and mementos are my separate property, which are listed
under Exhibit ‘A’. ”3 The Exhibit “A” referenced in the Will is identical to Exhibit
A attached to the prenuptial agreement. Alan also described where to find his “space
artifacts and mementos”:
For reference, most of my space artifacts and mementos are located in
the drawers of my desk, in the top drawer of the tall chest to the left of
my desk, all around the third floor of our personal residence, and on the
white chest in the third floor [sic] closet.
Alan instructed Clay’s trustee and Amy’s trustee “to distribute the artifacts and
mementos so that shares of equal value are conveyed” and the Trustees’ decisions
“are binding and final.” Alan appointed Leslie and Amy as co-executors of his estate.
He also included a provision for the appointment of a third co-executor with
“authority limited to any issue(s) for which my wife and my daughter disagree” and
whose decisions “are to break any ties between my wife and my daughter and
therefore be binding and final.”
IV. Probate Proceedings
Alan died on May 26, 2018. The probate court appointed Amy and Leslie
independent co-executors of Alan’s estate in accordance with the Will.
Unfortunately, Amy and Leslie could not agree on many issues concerning the
3
Alan states in the Will that three items acquired during his time with NASA were merely loaned to
him by NASA and “must be returned to NASA as soon as possible” after his death. Those items are two
Skylab gloves, “the Apollo helmet,” and “a suit hose and two hose connectors.” Those items are not
included in the thirty-nine artifacts at issue in this appeal.
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administration of the estate. On April 17, 2019, Amy filed an application for issuance
of letters testamentary to appoint Tom Kartsotis as the tie-breaking independent co-
executor. Amy explained in the application that she and Leslie could not agree “upon
various administration matters,” and an independent co-executor to act as a tie-
breaker should be appointed as provided for in the Will. The probate court signed an
order appointing Tom on May 7, 2019.
On August 26, 2019, Leslie filed a Form 7064 with the Internal Revenue
Service. Under penalty of perjury, she reported all but four of Alan’s space items,
artifacts, mementos, and memorabilia as Alan’s separate property. According to
Amy, the Form 706 filing showed that “the property characterization of the space
artifacts and mementos as Alan’s separate property was not in dispute” when she
requested Tom’s appointment.
Nonetheless, in a memorandum to Tom’s counsel dated September 12, 2019,
Leslie submitted five issues for Tom to consider in his capacity as tie-breaker. “Issue
# 5” referenced the division of “space artifacts and mementos.” Leslie asserted the
following items were not Alan’s separate property because they were merely on loan
to Alan from NASA when she and Alan signed the prenuptial agreement in 1982:
(1) Apollo hammer, (2) Apollo cuff checklist, (3) Apollo core bit tube, (4) Apollo
suit patches, (5) Skylab gloves, (6) suit/hose connectors, (7) Apollo clip, and (8)
4
“The executor of a decedent’s estate uses Form 706 to figure the estate tax imposed by Chapter 11 of
the Internal Revenue Code.” About Form 706, United States Estate (and Generation-Skipping Transfer)
Tax Return, https://www.irs.gov/forms-pubs/about-form-706#.
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Apollo helmet. At the hearing on Amy’s motion for partial summary judgment,
Leslie’s counsel confirmed Leslie sought Tom’s tie-breaker determination as to only
those items, and Tom’s counsel maintained that Tom’s decisions were limited to
those items. Tom, however, made a much broader finding. In a February 20, 2020
email to counsel, Tom interpreted HR 4158 and decided “title to space artifacts in
Alan’s possession had not been vested in Alan prior to the date of House Bill 4158
and therefore constituted community property at his death.”
Amy viewed this determination as counter to Alan’s intent as stated in his
Will, the law, the prenuptial agreement, and Leslie’s sworn Form 706 filing. She
also believed Tom’s determination was beyond the scope of his tie-breaking
authority as to non-legal, administrative matters. That prompted Amy to file a
petition for declaratory judgment concerning various aspects of the Estate’s
administration. The petition included Amy’s request for a declaration that Alan’s
space artifacts and mementos belong to Alan’s estate and are characterized as his
separate property.
Ultimately Amy filed her second amended motion for partial summary
judgment, in which she asserted certain “space artifacts and mementos” should be
characterized as Alan’s separate property. She moved the probate court to declare
the following items Alan’s separate property:
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 The Apollo suit patch and PLSS patches, the Apollo 12 Hammer,
the Apollo 12 Cuff Checklist, and the Apollo 12 Core Tube Bit;5
and
 The space artifacts and mementos listed on Exhibit A to the Will
and Exhibit A to the prenuptial agreement, which encompassed
all items owned by Alan as of July 15, 1982.
In response, Leslie maintained Tom’s decision was final and binding and, as such,
ownership in the space artifacts and mementos vested in Alan when HR 4158 was
enacted on October 5, 2012. Because Alan did not “own” the items on July 15, 1982,
they were not included in the list of separate property found in Exhibit A to the
prenuptial agreement. Leslie further argued Amy failed to defeat the presumption of
community property because the items were not “owned” by Alan before his
marriage to Leslie or “acquired” by Alan by “gift, devise or descent.”
The hearing transcript reflects confusion among counsel and the probate judge
concerning which specific items the court was being asked to characterize. Amy
submitted a proposed order with her motion listing 243 items included by Leslie as
“Space Items, Artifacts and Memorabilia” in her Form 706 tax filing. Amy informed
the probate court at the hearing that she was not seeking a ruling on all 243 items.
Rather, she sought a ruling only on item numbers 1 through 167 from her proposed
order. Those items had been appraised by Sotheby’s before the Rule 706 tax filing,
whereas items 168 through 243 had not been appraised. Leslie conceded 128 of the
5
Those Apollo items were also included in the list of items identified by Leslie as “Space Items:
Artifacts and Memorabilia” in her 2019 Form 706 Estate Tax Return.
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167 items at issue were Alan’s separate property because he owned those items
before their marriage. The probate court ruled on the remaining thirty-nine items
(the 39 Space Artifacts). Those are the rulings at issue on appeal.
In a December 23, 2020 order, the probate court granted Amy’s motion in part
and characterized the 39 Space Artifacts as Alan’s separate property. The trial court
severed the December 23, 2020 summary judgment order into a new cause number.
This appeal followed.
STANDARD OF REVIEW
In four issues, Leslie contends the probate court erred by granting Amy’s
motion for summary judgment. We review orders granting summary judgment de
novo. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). If no grounds are
specified for the ruling, we must affirm on any meritorious grounds on which
judgment was requested. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.
2013). With respect to a traditional motion for summary judgment, we require the
movant to demonstrate the absence of a genuine issue of material fact and her
entitlement to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Provident Life
& Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). If the movant
satisfies this burden, to avoid summary judgment the nonmovant then bears the
burden of demonstrating a genuine issue of material fact. Lujan, 555 S.W.3d at 84.
We credit all evidence favoring the nonmovant, indulging every reasonable
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inference and resolving all doubts in its favor. Johnson v. Brewer & Pritchard, P.C.,
73 S.W.3d 193, 208 (Tex. 2002).
THE 39 SPACE ARTIFACTS
The December 23, 2020 order includes a numbered list of the 39 Space
Artifacts. Leslie challenges the probate court’s characterization of the 39 Space
Artifacts as Alan’s separate property. On appeal, however, she divides the 39 Space
Artifacts and her challenges to their characterization into two categories: “the 2012
Space Artifacts” and “the other space artifacts.” Leslie’s first two issues focus on
“the 2012 Space Artifacts,” her third issue addresses “the other space artifacts,” and
her final issue relates to the 39 Space Artifacts as a whole.
Unfortunately, the items Leslie includes in each category are a moving target.
When she defines the term “2012 Space Artifacts” in her brief, she states those items
were “Government-owned space artifacts” that included 20 of the 39 Space
Artifacts. (Br. at 1–3). In her statement of facts, however, Leslie states 34 of the 39
Space Artifacts are included in her definition of “2012 Space Artifacts” and were
erroneously characterized as community property. (Br. at 21). That number changes
again within Leslie’s argument section of the brief. When discussing the community
property presumption related to the “other space artifacts,” Leslie listed 16 items as
“other space artifacts,” which left 23 items characterized as “2012 Space Artifacts.”
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The record and oral argument did not clarify this issue. What is clear, however, is
Leslie never defines the following items6 as part of the “2012 Space Artifacts”:
 Biomedical Harness worn by Bean LM-6 Apollo 12
 Silver Skylab 2 (Mission I) Robbins Medallion Serial No. 12
Flown
 Silver Skylab 2 (Mission I) Robbins Medallion Serial No. 294
Unflown
 Skylab 2 Mission Emblem Sticker
For purposes of our analysis of Leslie’s first two issues, we will treat the remaining
thirty-five items as included in the “2012 Space Artifacts” category. As for her third
issue, we will treat the sixteen7 items addressed by Leslie in her brief as “other space
artifacts.” As discussed below, however, this delineation is superfluous because we
conclude the 39 Space Artifacts were properly characterized as Alan’s separate
property regardless of how Leslie characterized the items.
ANALYSIS
Leslie challenges the probate court’s characterization of the 39 Space
Artifacts as Alan’s separate property. She argues the characterization was erroneous
because (1) NASA, not Alan, owned the 2012 Space Artifacts in 1982, (2) Alan did
not acquire title to the 2012 Space Artifacts until 2012 with the passage of HR 4158,
(3) Amy did not overcome the community property presumption regarding the other
6
These items are item numbers 1, 34, 35, and 38 in the December 23, 2020 order.
7
Leslie defines “the other space artifacts” as item numbers 1 through 13, 34, 35, and 38.
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space artifacts, and (4) Tom’s decision that the space artifacts were community
property was final and binding.
I. Characterization of the 2012 Space Artifacts
Leslie’s first two issues address the 2012 Space Artifacts. She does not dispute
that Alan had those items in his possession as of July 15, 1982. Rather, she maintains
Alan did not own the items as of July 15, 1982 because (1) they were “Government-
owned” items that NASA instructed Alan to return, and (2) Alan did not obtain title
to the items until Congress passed HR 4158 in 2012, which was during the marriage.
We disagree and will address each argument separately.
A. Lack of ownership in 1982
Leslie first asserts the 2012 Space Artifacts cannot be characterized as Alan’s
separate property because he possessed but did not own those items before the
marriage. A spouse’s separate property is “the property owned or claimed by the
spouse before marriage” and includes property acquired by the spouse during
marriage by gift, devise, or descent. TEX. FAM. CODE § 3.001 (emphasis added);
TEX. CONST. art. XVI, § 15 (“All property, both real and personal, of a spouse owned
or claimed before marriage, and that acquired afterward by gift, devise or descent,
shall be the separate property of that spouse . . . .”) (emphasis added). Here, the
record conclusively shows that Alan claimed the 2012 Space Artifacts as his separate
property before the marriage.
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Alan consistently treated the artifacts as his separate property before and after
he married Leslie. When divorcing his first wife, he entered a property settlement
agreement designating his space artifacts and mementos as his separate property. He
again designated those items as his separate property in the prenuptial agreement
with Leslie. Alan was already retired from NASA when he married Leslie, and she
does not dispute Alan had the 2012 Space Artifacts in his possession as of July 15,
1982. Moreover, Leslie agreed the 2012 Space Artifacts were Alan’s separate
property by signing the prenuptial agreement and listing those items as his separate
property in her Form 706 tax filing. Under this record, we conclude the 2012 Space
Artifacts were properly characterized as Alan’s separate property because he
consistently claimed the property as his separate property. See, e.g., In re Marriage
of Douthit, 573 S.W.3d 927, 930 (Tex. App.—Amarillo 2019, no pet.) (evidence that
husband claimed the tract of land was his before marriage, even though he had not
yet obtained the legal title or evidence of title property, was sufficient to characterize
the property as husband’s separate property).
B. H.R. 4158
The United States Senate and House of Representatives enacted H.R. 4158 as
Public Law 112–185 on October 5, 2012. Owners and Ownership—Artifacts of
Astronauts, Pub. L. No. 112-185, 126 Stat. 1425 (2012) (“An Act To confirm full
ownership rights for certain United States astronauts to artifacts from the astronauts’
space missions.”). Leslie contends H.R. 4158 made the 2012 Space Artifacts
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community property because the legislation transferred title to Alan in 2012 during
the marriage. We disagree.
In construing a statute, our ultimate purpose must be to give effect to the
Legislature’s intent. Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 280 (Tex.
1994). We resort to rules of construction only when the statute in question is
ambiguous. Ex parte Roloff, 510 S.W.2d 913, 915 (Tex. 1974). When the meaning
of an existing law is uncertain, the Legislature’s later interpretation of it is highly
persuasive. Tex. Water Comm’n v. Brushy Creek Mun. Util. Dist., 917 S.W.2d 19,
21 (Tex. 1996); Stanford v. Butler, 181 S.W.2d 269, 274 (Tex. 1944).
HR 4158 first defines “artifact” and then confirms “full ownership” and “clear
title” of such artifacts on certain United States astronauts:
SECTION 1. DEFINITION OF ARTIFACT.
For purposes of this Act, the term “artifact” means, with respect to an
astronaut described in section 2(a), any expendable item utilized in
missions for the Mercury, Gemini, or Apollo programs through the
completion of the Apollo–Soyuz Test Project not expressly required to
be returned to the National Aeronautics and Space Administration at
the completion of the mission and other expendable, disposable, or
personal-use items utilized by such astronaut during participation in
any such program. The term includes personal logs, checklists, flight
manuals, prototype and proof test articles used in training, and
disposable flight hardware salvaged from jettisoned lunar modules. The
term does not include lunar rocks and other lunar material.
SEC. 2. FULL OWNERSHIP OF ARTIFACTS.
(a) IN GENERAL.—A United States astronaut who participated in any
of the Mercury, Gemini, or Apollo programs through the completion of
the Apollo–Soyuz Test Project, who received an artifact during his
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participation in any such program, shall have full ownership of and
clear title to such artifact.
(b) NO FEDERAL GOVERNMENT CLAIM.—The Federal
Government shall have no claim or right to ownership, control, or use
of any artifact in possession of an astronaut as described in subsection
(a) or any such artifact that was subsequently transferred, sold, or
assigned to a third party by an astronaut described in subsection (a).
Id. at 1425–26. President Barack Obama signed HR 4158 into law on October 5,
2012. The White House Press Secretary stated the act “confirms full ownership for
U.S. astronauts who participated in the Mercury, Gemini, or Apollo programs of
artifacts from their space missions.” STATEMENT BY THE PRESS SECRETARY, 2012
WL 4751794, at *1 (White House, Oct. 5, 2012).
Applying the plain language of the statute, we conclude H.R. 4158 did not
provide Apollo-era astronauts new ownership rights in the artifacts defined in the
Act. Rather, H.R. 4158 simply “confirmed” what those astronauts believed for
decades: that they owned and had clear title to the artifacts. The legislative history
and commentary concerning the Bill support this conclusion.
The House of Representatives debated and confirmed H.R. 4158 on
September 19, 2012. 158 CONG. REC. H6086-01 (daily ed. Sept. 19, 2012), 158
CONG. REC. H6086-01, at *H6086 (Westlaw 2012 WL 4120031). Several
representatives spoke in favor of H.R. 4158. In those statements, they emphasized
the need to “confirm” that astronauts own and have legal title to the artifacts defined
in H.R. 4158. For example, when explaining the history and purpose of the Act,
Congressman Ralph Hall stated H.R. 4158 “would confirm full ownership rights” in
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the artifacts to the Apollo-era astronauts. He went on to explain the history of the
astronauts’ ownership of the artifacts:
From the first days of our manned spaceflight program through the
Apollo-Soyuz Test Project, at the conclusion of a mission NASA
managers routinely allowed astronauts to keep mementos of their
flights. In some instances, astronauts were also given certain pieces of
expendable equipment. The range of items included space suit
emblems, expendable space suits, checklists, flight manuals, and
disposable flight hardware salvaged from the jettisoned lunar landers.
A majority of these items have been in the personal possession of the
astronauts for 40 years or more. Over the last decade, NASA has begun
to challenge the astronauts’ ownership of these mementos. This issue
was first brought to my attention late last year. I was surprised to learn
that NASA had, on an irregular basis, intervened several times to claim
ownership.
***
This bill seeks to eliminate in any further ambiguity about Apollo-era
artifacts that were received by the astronauts. It simply says that
astronauts who flew through the end of the Apollo program will be
granted full right of ownership of any artifacts received from their
missions. If we don’t pass this bill, the artifacts and the astronauts face
huge financial risks arising from donations, gifts, and sales already
completed.
These men are heroes. They’re great heroes. Sadly, we had to say good-
bye to one of these heroes just last week. They took extraordinary risks
to establish American preeminence in space and, by doing so, helped
our country become a world leader. I think it’s a miscarriage of justice
that today NASA should seek return of these very same mementos and
keepsakes.
158 CONG. REC. H6086-01, 158 Cong. Rec. H6086-01, at *H6086.
Other House Members spoke in favor of H.R. 4158 and echoed Representative
Hall’s thoughts. For example, Representative Eddie Bernice Johnson called H.R.
4158 “a necessary bill which will protect our iconic early astronauts from needless
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harassment. This bill will ensure that any U.S. astronaut who participated in the
historic Mercury, Gemini, or the Apollo programs will be able to keep the space
artifacts which are still in their possession from those missions.” Id. (statement of
Rep. Johnson). Representative Johnson went on to explain why such protections
were needed:
At the time of these missions, it was accepted practice that astronauts
could keep expendable equipment like checklists and hygiene kits as
mementos of their missions. However, this was an informal policy, and
those astronauts lacked paperwork establishing ownership over these
items.
This bill will protect those astronauts from any claims made by the
Federal Government regarding any of these artifacts. Further, the bill
protects our national interest by ensuring that any lunar rocks or other
lunar material remain property of the United States.
Id. Representative Lamar Smith shared those sentiments and further explained why
a bill clarifying ownership of the artifacts was imperative:
The problem this bill addresses is to confirm the ownership of
mementoes the Apollo astronauts received from their journeys. I was
first contacted one year ago about this problem by my constituent,
Apollo 16 moonwalker Charlie Duke, who now lives in New Braunfels,
Texas and also chairs the Astronaut Scholarship Foundation.
The Scholarship Foundation is one of the beneficiaries from the sale of
such artifacts, and they have provided over $3 million in scholarships
to college students studying science and engineering so they too can
aspire to be astronauts.
At the end of the Apollo program, these mementoes were deemed to be
of little value, and NASA was simply going to throw many of these
items in the trash heap of history-checklists with scribbled equations
and calculations in the margins, a camera and other personal effects the
Apollo astronauts were offered to keep for themselves.
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However, in the intervening 40 years, these mementoes took on a
greater historical context, just like mementoes from past wars or famous
people take on greater significance. Unfortunately, over-zealous NASA
and the Justice Department lawyers recently started filing law suits
against Apollo astronauts-our American heroes-and started questioning
their integrity.
This is wrong. And this bill clarifies the ownership of these artifacts in
the possession of our astronauts.
Id. at *H6088 (statement of Rep. Smith). Similarly, Representative Jerry F. Costello
told House Members he supported H.R. 4158 “because it clarifies that the ownership
of those artifacts rests with the astronauts who served during those missions, while
preserving the current policy that ownership of moon rocks and lunar material will
continue to rest with the Federal Government.” 158 CONG. REC. E1581-01 (daily ed.
Sept. 20, 2012), 158 CONG. REC. E1581-01, at *E1581 (Westlaw 2012 WL 4207964)
(speech of Rep. Costello). Representative Costello urged the House to pass H.R.
4158 as a way to thank the Apollo-era astronauts for fulfilling “the dreams of a
grateful nation by pushing the boundaries of space.” Id. The plain language of the
statute and the legislative history support a conclusion that H.R. 4158 confirmed and
clarified Alan’s ownership rights to the 39 Space Artifacts and did not create new
property rights in those items.
H.R. 4158 can also be reasonably construed as giving the space artifacts to the
astronauts as either gifts or compensation. As Representative Costello told the
House, the artifacts should be given to Apollo-era astronauts by “a grateful nation”
to thank the astronauts for their brave and heroic actions. Gifts acquired during
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marriage are characterized as separate property. TEX. FAM. CODE § 3.001 (separate
property includes “property acquired by the spouse during marriage by gift, devise,
or descent.”); TEX. CONST. art. XVI, § 15 (separate property includes property
acquired after marriage by gift). As gifts, there is no presumption the artifacts belong
to the community estate. The same is true if the artifacts are considered
compensation under H.R. 4158. Alan never worked as an astronaut during his
marriage to Leslie. Any “payment” to Alan of space artifacts and mementos is,
therefore, his separate property. See, e.g., Moore v. Moore, 192 S.W.2d 929, 930–
31 (Tex. App.—Fort Worth 1946, no writ) (“Moneys received by an ex-soldier after
marriage for services rendered to the government prior to marriage become his
separate property. If the ‘bonus money’ received by appellee in this case were
additional compensation to that formerly paid by the government to him for services
rendered, the services were performed before marriage, and his rights thereto existed
at the time of marriage . . . .”). Either way, those artifacts would be Alan’s separate
property as a matter of law.
II. Community property presumption as to the “other space artifacts”
Leslie’s third issue relates to “the other space artifacts,” which she contends
were not in Alan’s possession before their marriage. A spouse’s separate property is
“the property owned or claimed by the spouse before marriage” and includes
property acquired by the spouse during marriage by gift, devise, or descent. TEX.
FAM. CODE § 3.001; TEX. CONST. art. XVI, § 15. Property possessed by either spouse
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during or on dissolution of the marriage, however, is presumed to be community
property. TEX. FAM. CODE § 3.003(a); Sink v. Sink, 364 S.W.3d 340, 344 (Tex.
App.—Dallas 2012, no pet.). To overcome the community property presumption,
the spouse claiming certain property as separate must trace and clearly identify the
property through clear and convincing evidence “showing the time and means by
which the spouse originally obtained possession of the property.” Sink, 364 S.W.3d
at 344; see also TEX. FAM. CODE § 3.003(b). Separate property will retain its
character through a series of exchanges so long as the party asserting separate
ownership traces the assets back to property that, “because of its time and manner of
acquisition, is separate in character.” Sink, 364 S.W.3d at 344–45.
“The burden of tracing is a difficult, but not impossible, burden to sustain.”
Id. at 344. It involves establishing the separate origin of the property through
“evidence showing the time and means by which the spouse originally obtained
possession of the property.” Id. To establish that property is separately owned, a
party must offer clear and convincing evidence of that fact. TEX. FAM. CODE
§ 3.003(b). “Clear and convincing” evidence means the measure or degree of proof
that will produce in the mind of the trier of fact a firm belief or conviction as to the
truth of the allegations sought to be established. In re J.F.C., 96 S.W.3d 256, 264
(Tex. 2002); Matter of Marriage of Murgola & Blythe, No. 14-21-00139-CV, 2022
WL 3365264, at *2 (Tex. App.—Houston [14th Dist.] Aug. 16, 2022, no pet.) (mem.
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op.). Any doubt as to the character of property is resolved in favor of the community
estate. Sink, 364 S.W.3d at 345.
In general, the characterization of property is determined by the time and
circumstances of its acquisition, often referred to as the “inception of title” doctrine.
Rivera v. Hernandez, 441 S.W.3d 413, 420 (Tex. App.—El Paso 2014, pet. denied)
(citing Scott v. Estate of Scott, 973 S.W.2d 694 (Tex. App.—El Paso 1998, no pet.)).
“Inception of title occurs when a party first has a right or claim to the property by
virtue of which title is finally vested.” Pettitt v. Pettitt, 704 S.W.2d 921, 924 (Tex.
App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.); see also Parnell v. Parnell, 811
S.W.2d 267, 269 (Tex. App.—Houston [14th Dist.] 1991, no writ); John Hancock
Mut. Life Ins. Co. v. Bennett, 128 S.W.2d 791, 795 (Tex. 1939); Winkle v. Winkle,
951 S.W.2d 80, 88 (Tex. App.—Corpus Christi–Edinburg 1997, writ denied). If the
inception of title predated the marriage, then the property may be characterized as
separate property, but if the inception of title occurred after the marriage began, then
the property is generally considered to be community property. Attaguile v.
Attaguile, 584 S.W.3d 163, 173 (Tex. App.—El Paso 2018, no pet.) (first citing
Willett v. Rodriguez, No. 03-16-00084-CV, 2017 WL 2417831, at *2 (Tex. App.—
Austin June 2, 2017, pet. denied) (mem. op.), then citing Tarver v. Tarver, 394
S.W.2d 780, 783 (Tex. 1965)).
To establish the award as separate property, a party must merely show that
before the marriage he had a right to claim the property, he pursued that right, and
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the right later ripened. Smith v. Smith, 22 S.W.3d 140, 144–45 (Tex. App.—Houston
[14th Dist.] 2000, no pet.) (damages recovered in lawsuit after the marriage were
Smith’s separate property because he suffered the damages before the marriage).
The fact that the right is unenforceable at inception is irrelevant:
The status of the property of marital partners is determined by the time
and circumstances attending its “acquisition.” It is therefore helpful to
keep in mind what is meant by “acquired.” The term signifies the origin
or inception of the right, rather than its later ripening or fruition.
SPEER’S MARITAL RIGHTS IN TEXAS § 388 (4th ed.); see Roach v. Roach, 672 S.W.2d
524, 530–31 (Tex. App.—Amarillo 1984, no writ) (“Moreover, it is a familiar
principle of law that the separate or community character of property is determined
not by the acquisition of the final title . . . but by the origin of title to the property.”).
In other words, a party’s right to claim property as one’s separate property is “not
required to vest completely before marriage.” Smith, 22 S.W.3d at 144–45.
For example, in Smith, the husband was damaged in an accident before his
marriage but did not recover damages until after the marriage. 22 S.W.3d at 144–45.
The court concluded the damages recovered were the husband’s separate property
because he suffered the damages before the marriage. Id. Similarly, when real
property is acquired under a contract for deed or installment contract, the inception
of title occurs when the contract was executed, not when legal title is conveyed. In
re Marriage of Morris, 123 S.W.3d 864, 871 (Tex. App.—Texarkana 2003, no pet.)
(citing Wilkerson v. Wilkerson, 992 S.W.2d 719, 722 (Tex. App.—Austin 1999, no
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pet.)); Pettitt, 704 S.W.2d at 924 (“fee title to the realty was the husband’s separate
property since it was acquired by him prior to marriage”).
A party’s own testimony is sufficient to rebut the community property
presumption if it is uncontroverted. For example, in Sanchez v. Wales, No. 05-20-
00485-CV, 2022 WL 1055376, at *4 (Tex. App.—Dallas Apr. 8, 2022, no pet.)
(mem. op.), the husband offered sufficient evidence to rebut the community property
presumption by presenting uncontroverted, clear and convincing evidence that the
funds used to purchase the property at issue were his separate assets. We noted in
Sanchez that “the record contains no evidence suggesting that the funds at issue were
actually derived from some other source.” Similarly, we concluded in Pace v. Pace,
160 S.W.3d 706, 714 (Tex. App.—Dallas 2005, pet. denied) that “[t]he testimony of
a spouse seeking to overcome the community property presumption need not be
corroborated to meet the clear and convincing standard.” Our sister courts have
reached the same conclusion. Vannerson v. Vannerson, 857 S.W.2d 659 (Tex.
App.—Houston [1st Dist.] 1993, writ denied) (wife’s testimony that items on
inventory list were her separate property provided sufficient evidence to support
separate property characterization where husband presented no evidence to the
contrary); Monroe v. Monroe, 358 S.W.3d 711 (Tex. App.—San Antonio 2011, pet.
denied) (wife’s uncontradicted testimony that her jewelry was separate property
because she either owned it before marriage or received it as a gift after marriage
established, as a matter of law, that the jewelry was her separate property).
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Leslie contends the probate court erroneously characterized the following
“other space artifacts” as Alan’s separate property:
 Biomedical Harness worn by Bean LM-6 Apollo 12 (Item #1)
 Nine silver Robbins Medallions from the Apollo 7, 9, 10, 14, 15,
and 16 missions (Items #s 2–10)
 Two groups of manned flight awareness medals from the Apollo
8 and 11 missions (Item #s 11, 13)
 Skylab Manned Flight Awareness Medal Flown May 14,1973 to
Feb 6, 1974 (Item # 12)
 Silver Skylab 2 (Mission I) Robbins Medallion Serial No. 12
Flown (Item # 34)
 Silver Skylab 2 (Mission I) Robbins Medallion Serial No. 294
Unflown (Item # 35)
 Skylab 2 Mission Emblem Sticker (Item # 38)
She maintains summary judgment should not have been granted because Amy did
not overcome the community property presumption as to “the other space artifacts.”
We disagree.
Amy presented the probate court with uncontroverted, clear and convincing
evidence that Alan acquired the 39 Space Artifacts before his marriage to Leslie.
This evidence included the property settlement between Alan and Sue, the prenuptial
agreement between Alan and Leslie, Alan’s Will, and the Form 706 Leslie filed with
the Internal Revenue Service under penalty of perjury identifying the 39 Space
Artifacts as Alan’s separate property. The evidence was uncontroverted that the 39
Space Artifacts were in Alan’s possession before his marriage to Leslie. In his Will,
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Alan stated he received the artifacts and mementos during his NASA career. He
retired from NASA before marrying Leslie. Those documents and Alan’s statements
within them constitute clear and convincing evidence that the 39 Space Artifacts
were in his possession and claimed by him as separate property before July 15, 1982.
Leslie presented no evidence to controvert Amy’s evidence. Indeed, she confirmed
Alan’s statements by signing the prenuptial agreement and filing the Form 706.
Moreover, Amy presented uncontroverted evidence that the items carved out
by Leslie as “other space artifacts” were in Alan’s possession before his marriage to
Leslie. For example, the biomedical harness, Skylab manned flight awareness medal,
and patches from Alan’s Apollo 12 spacesuit were worn by or carried by Alan into
space during his Apollo or Skylab III missions. In his Will, Alan states “certain
artifacts, which flew aboard” the Apollo 12 and Skylab 3, Mission II flights were
given to him by “NASA through officials at the Johnson Space Center.” The Will
states those artifacts are Alan’s “personal property and should not be returned to
NASA nor should they be brought to the undue attention of the U.S. Government.”
Those flights occurred years before Alan married Leslie. Alan’s use of those items
during those flights establishes his possession of them before his marriage to Leslie.
Further, in the property settlement and prenuptial agreement, Alan described
his separate property as encompassing the following:
 “All space pictures, mementos, awards.”
 “Alan Bean’s desk and contents, chair and lamp. All books,
awards, artifacts, etc.” in Alan’s study.
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 “½ of all space flown Apollo and Skylab flags and medallions.”
 “All space related photographs, models, mementos, awards,
coins, stamps, souveniers [sic], jewelry except for one Apollo 12
silver medallion.”
 “All flags, jewelry, medallions, and other items that were taken
by Alan L. Bean on space flights.”
 “All contents” of Alan’s carved desk.
The remaining items within “the other space artifacts” category are medallions,
medals, and emblems. They, therefore, are items described by Alan as his separate
property in the Will, the property settlement, and prenuptial agreement. At a
minimum, those items are mementos as set out in the Will and its attachments.
Under this record, we conclude that the trial court could “reasonably have
formed a firm conviction or belief” that the “other space artifacts” were in Alan’s
possession before his marriage to Leslie and were, therefore, his separate property.
III. Tom’s characterization of the space artifacts
In a February 20, 2020 email to counsel, Tom interpreted HR 4158 and
decided “title to space artifacts in Alan’s possession had not been vested in Alan
prior to the date of House Bill 4158 and therefore constituted community property
at his death.” Leslie asserts the probate court erred by disregarding Tom’s decision
because that decision was “final and binding” pursuant to the Will. We disagree.
A provision in a will making the executor’s decision on disputed questions
regarding the will’s construction binding on all interested parties is generally valid.
Nations v. Ulmer, 139 S.W.2d 352, 356 (Tex. App.—El Paso 1940, writ dism’d).
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Such decisions by the executor, if fairly and honestly made and reasonably
susceptible to the terms of the will, are binding and final on all interested parties. Id.;
Key v. Metcalf, No. 14-04-00782-CV, 2006 WL 348149, at *2 (Tex. App.—Houston
[14th Dist.] Feb. 16, 2006, no pet.) (mem. op.). However, a gross departure from the
testator’s intent cannot be considered an honest endeavor by the executor to
determine that intent. Pray v. Belt, 26 U.S. (1 Pet.) 670, 680 (1828). The executor’s
construction of the will is subject to court review “[i]f an unreasonable use be made
of such a power so given in a will, one not foreseen, and which could not be intended
by the testator . . . .” Id. Such is the case here.
Throughout his life, Alan consistently maintained that his space artifacts and
mementos were his separate property. This was central to his property settlement
with Sue and the prenuptial agreement with Leslie. He vehemently reiterated this
view in the Will. Indeed, the Will included fifteen pages of detailed explanations and
instructions concerning Alan’s space artifacts and mementos. Alan adamantly
believed his space artifacts and mementos were his separate property and explicitly
provided those items should remain his separate property and be distributed after his
death per his instructions in the Will. Tom’s decision to characterize all of Alan’s
space artifacts and mementos as community property directly contradicts Alan’s
stated intent. The decision is such a gross departure from Alan’s intent that it cannot
be considered an honest endeavor by Tom to determine that intent. Further, there is
some evidence to support a finding that Tom acted with bias toward Amy and in
–30–
favor of Leslie. In his affidavit, Tom testified he knew his role was to determine
disputes fairly. However, he also conceded that he viewed his role was to protect
Leslie because Alan knew Amy “was often tough on and in disagreement with
Leslie.” This evidence of slight bias in favor of Leslie further supported the probate
court’s decision to review Tom’s determination of how to characterize the 39 Space
Artifacts.
Moreover, the probate court properly disregarded Tom’s decision. Not only
does the decision directly contradict Alan’s stated intent, but the decision is a legal
one properly delegated to the probate court. The Will provided for Tom to break ties
concerning issues related to the administration of the estate on which Leslie and
Amy could not agree. That tie-breaker role does not explicitly or implicitly provide
Tom with the authority to make legal decisions such as determining Alan’s intent or
applying a legal characterization to property of the estate. Tom is not an attorney and
lacks the education and training to interpret a federal statute and determine its legal
meaning. Amy had a right to have such decisions addressed by the probate court.
See, e.g., TEX. CIV. PRAC. & REM. CODE § 37.004(a) (interested persons under a will
“may have determined any question of construction or validity arising under the
instrument, . . . and obtain a declaration of rights, status, or other legal relations
thereunder.”). Indeed, the characterization of marital property is routinely submitted
to courts as a declaratory judgment in independent administrations. E.g., In re Estate
of Wilson, 7 S.W.3d 169, 172 (Tex. App.—Eastland 1999, pet. denied) (declaratory
–31–
judgment action was appropriate means for testator’s daughter to seek construction
of will); Donalson v. Harrington, No. 09-19-00286-CV, 2021 WL 3196970, at *3
(Tex. App.—Beaumont July 29, 2021, no pet.) (mem. op.) (party sought declaratory
judgment characterizing marital property).
Finally, we reject Leslie’s contentions that Amy was barred from challenging
Tom’s decision by res judicata or collateral estoppel. The doctrine of res judicata
requires proof of the following elements: (1) a prior final judgment on the merits by
a court of competent jurisdiction; (2) identity of parties or those in privity with them;
and (3) a second action based on the same claims that were raised or could have been
raised in the first action. Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 595 (Tex.
App.—Houston [14th Dist.] 2000, no pet.) (citing Amstadt v. U.S. Brass Corp., 919
S.W.2d 644, 652 (Tex.1996)). Likewise, “[a] prior adjudication of an issue will be
given estoppel effect only if it was adequately deliberated and firm.” Id. (quoting
Mower v. Boyer, 811 S.W.2d 560, 562 (Tex. 1991)). That determination requires a
showing that (1) the parties were fully heard; (2) the court supported its decision
with a reasoned opinion; and (3) the decision was subject to appeal or was in fact
reviewed on appeal. Id. Tom’s decision was not a final judgment on the merits by a
court of competent jurisdiction and was not made after adequate deliberation
allowing the parties to be fully heard. These doctrines are inapplicable under these
facts.
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Under this record, we conclude the probate court properly reviewed Tom’s
decision and did not err by disregarding that decision.
CONCLUSION
We find no error in the probate court’s characterization of the 39 Space
Artifacts as Alan’s separate property. Accordingly, we affirm the trial court’s
December 23, 2020 order granting Amy’s second amended motion for partial
summary judgment.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
210286F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LESLIE BEAN, Appellant On Appeal from the Probate Court
No 2, Harris County, Texas
No. 05-21-00286-CV V. Trial Court Cause No. 467,316-402.
Opinion delivered by Justice Partida-
AMY SUE BEAN, Appellee Kipness. Justices Reichek and
Goldstein participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee AMY SUE BEAN recover her costs of this
appeal from appellant LESLIE BEAN.
Judgment entered this 13th day of December 2022.
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