CHAPTER 115. JURISDICTION, VENUE, AND PROCEEDINGS - Texas Statutes

PROPERTY CODE

TITLE 9. TRUSTS

SUBTITLE B. TEXAS TRUST CODE: CREATION, OPERATION, AND

TERMINATION OF TRUSTS

CHAPTER 115. JURISDICTION, VENUE, AND PROCEEDINGS

SUBCHAPTER A. JURISDICTION AND VENUE

Sec. 115.001. JURISDICTION. (a) Except as provided by

Subsection (d) of this section, a district court has original and

exclusive jurisdiction over all proceedings by or against a

trustee and all proceedings concerning trusts, including

proceedings to:

(1) construe a trust instrument;

(2) determine the law applicable to a trust instrument;

(3) appoint or remove a trustee;

(4) determine the powers, responsibilities, duties, and

liability of a trustee;

(5) ascertain beneficiaries;

(6) make determinations of fact affecting the administration,

distribution, or duration of a trust;

(7) determine a question arising in the administration or

distribution of a trust;

(8) relieve a trustee from any or all of the duties,

limitations, and restrictions otherwise existing under the terms

of the trust instrument or of this subtitle;

(9) require an accounting by a trustee, review trustee fees, and

settle interim or final accounts; and

(10) surcharge a trustee.

(a-1) The list of proceedings described by Subsection (a) over

which a district court has exclusive and original jurisdiction is

not exhaustive. A district court has exclusive and original

jurisdiction over a proceeding by or against a trustee or a

proceeding concerning a trust under Subsection (a) whether or not

the proceeding is listed in Subsection (a).

(b) The district court may exercise the powers of a court of

equity in matters pertaining to trusts.

(c) The court may intervene in the administration of a trust to

the extent that the court's jurisdiction is invoked by an

interested person or as otherwise provided by law. A trust is

not subject to continuing judicial supervision unless the court

orders continuing judicial supervision.

(d) The jurisdiction of the district court is exclusive except

for jurisdiction conferred by law on:

(1) a statutory probate court;

(2) a court that creates a trust under Section 867, Texas

Probate Code;

(3) a court that creates a trust under Section 142.005;

(4) a justice court under Chapter 27, Government Code; or

(5) a small claims court under Chapter 28, Government Code.

Amended by Acts 1983, 68th Leg., p. 3332, ch. 567, art. 2, Sec.

2, eff. Jan. 1, 1984; Acts 1997, 75th Leg., ch. 1375, Sec. 5,

eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch.

148, Sec. 22, eff. January 1, 2006.

Acts 2007, 80th Leg., R.S., Ch.

451, Sec. 11, eff. September 1, 2007.

Sec. 115.002. VENUE. (a) The venue of an action under Section

115.001 of this Act is determined according to this section.

(b) If there is a single, noncorporate trustee, an action shall

be brought in the county in which:

(1) the trustee resides or has resided at any time during the

four-year period preceding the date the action is filed; or

(2) the situs of administration of the trust is maintained or

has been maintained at any time during the four-year period

preceding the date the action is filed.

(c) If there are multiple trustees or a corporate trustee, an

action shall be brought in the county in which the situs of

administration of the trust is maintained or has been maintained

at any time during the four-year period preceding the date the

action is filed, provided that an action against a corporate

trustee as defendant may be brought in the county in which the

corporate trustee maintains its principal office in this state.

(d) For just and reasonable cause, including the location of the

records and the convenience of the parties and witnesses, the

court may transfer an action from a county of proper venue under

this section to another county of proper venue:

(1) on motion of a defendant or joined party, filed concurrently

with or before the filing of the answer or other initial

responsive pleading, and served in accordance with law; or

(2) on motion of an intervening party, filed not later than the

20th day after the court signs the order allowing the

intervention, and served in accordance with law.

(e) Notwithstanding any other provision of this section, on

agreement by all parties the court may transfer an action from a

county of proper venue under this section to any other county.

(f) For the purposes of this section:

(1) "Corporate trustee" means an entity organized as a financial

institution or a corporation with the authority to act in a

fiduciary capacity.

(2) "Principal office" means an office of a corporate trustee in

this state where the decision makers for the corporate trustee

within this state conduct the daily affairs of the corporate

trustee. The mere presence of an agent or representative of the

corporate trustee does not establish a principal office. The

principal office of the corporate trustee may also be but is not

necessarily the same as the situs of administration of the trust.

(3) "Situs of administration" means the location in this state

where the trustee maintains the office that is primarily

responsible for dealing with the settlor and beneficiaries of the

trust. The situs of administration may also be but is not

necessarily the same as the principal office of a corporate

trustee.

Amended by Acts 1983, 68th Leg., p. 3332, ch. 567, art. 2, Sec.

2, eff. Jan. 1, 1984; Acts 1999, 76th Leg., ch. 344, Sec. 4.026,

eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 933, Sec. 1, eff.

Sept. 1, 1999.

SUBCHAPTER B. PARTIES, PROCEDURE, AND JUDGMENTS

Sec. 115.011. PARTIES. (a) Any interested person may bring an

action under Section 115.001 of this Act.

(b) Contingent beneficiaries designated as a class are not

necessary parties to an action under Section 115.001. The only

necessary parties to such an action are:

(1) a beneficiary on whose act or obligation the action is

predicated;

(2) a beneficiary designated by name in the instrument creating

the trust;

(3) a person who is actually receiving distributions from the

trust estate at the time the action is filed; and

(4) the trustee, if a trustee is serving at the time the action

is filed.

(c) The attorney general shall be given notice of any proceeding

involving a charitable trust as provided by Chapter 123 of this

code.

(d) A beneficiary of a trust may intervene and contest the right

of the plaintiff to recover in an action against the trustee as

representative of the trust for a tort committed in the course of

the trustee's administration or on a contract executed by the

trustee.

Amended by Acts 1983, 68th Leg., p. 3332, ch. 567, art. 2, Sec.

2, eff. Jan. 1, 1984; Acts 1995, 74th Leg., ch. 172, Sec. 1, eff.

Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch.

148, Sec. 23, eff. January 1, 2006.

Sec. 115.012. RULES OF PROCEDURE. Except as otherwise provided,

all actions instituted under this subtitle are governed by the

Texas Rules of Civil Procedure and the other statutes and rules

that are applicable to civil actions generally.

Amended by Acts 1983, 68th Leg., p. 3332, ch. 567, art. 2, Sec.

2, eff. Jan. 1, 1984.

Sec. 115.013. PLEADINGS AND JUDGMENTS. (a) Actions and

proceedings involving trusts are governed by this section.

(b) An affected interest shall be described in pleadings that

give reasonable information to an owner by name or class, by

reference to the instrument creating the interest, or in other

appropriate manner.

(c) A person is bound by an order binding another in the

following cases:

(1) an order binding the sole holder or all coholders of a power

of revocation or a presently exercisable general power of

appointment, including one in the form of a power of amendment,

binds other persons to the extent their interests, as objects,

takers in default, or otherwise are subject to the power;

(2) to the extent there is no conflict of interest between them

or among persons represented:

(A) an order binding a guardian of the estate or a guardian ad

litem binds the ward; and

(B) an order binding a trustee binds beneficiaries of the trust

in proceedings to review the acts or accounts of a prior

fiduciary and in proceedings involving creditors or other third

parties;

(3) if there is no conflict of interest and no guardian of the

estate or guardian ad litem has been appointed, a parent may

represent his minor child as guardian ad litem or as next friend;

and

(4) an unborn or unascertained person who is not otherwise

represented is bound by an order to the extent his interest is

adequately represented by another party having a substantially

identical interest in the proceeding.

(d) Notice under Section 115.015 shall be given either to a

person who will be bound by the judgment or to one who can bind

that person under this section, and notice may be given to both.

Notice may be given to unborn or unascertained persons who are

not represented under Subdivision (1) or (2) of Subsection (c) by

giving notice to all known persons whose interests in the

proceedings are substantially identical to those of the unborn or

unascertained persons.

Amended by Acts 1983, 68th Leg., p. 3332, ch. 567, art. 2, Sec.

2, eff. Jan. 1, 1984.

Amended by:

Acts 2009, 81st Leg., R.S., Ch.

672, Sec. 4, eff. September 1, 2009.

Sec. 115.014. GUARDIAN OR ATTORNEY AD LITEM. (a) At any point

in a proceeding a court may appoint a guardian ad litem to

represent the interest of a minor, an incapacitated, unborn, or

unascertained person, or person whose identity or address is

unknown, if the court determines that representation of the

interest otherwise would be inadequate. If there is not a

conflict of interests, a guardian ad litem may be appointed to

represent several persons or interests.

(b) At any point in a proceeding a court may appoint an attorney

ad litem to represent any interest that the court considers

necessary, including an attorney ad litem to defend an action

under Section 114.083 for a beneficiary of the trust who is a

minor or who has been adjudged incompetent.

(c) A guardian ad litem may consider general benefit accruing to

the living members of a person's family.

(d) A guardian ad litem is entitled to reasonable compensation

for services in the amount set by the court to be taxed as costs

in the proceeding.

(e) An attorney ad litem is entitled to reasonable compensation

for services in the amount set by the court in the manner

provided by Section 114.064.

Amended by Acts 1983, 68th Leg., p. 3332, ch. 567, art. 2, Sec.

2, eff. Jan. 1, 1984.

Amended by:

Acts 2005, 79th Leg., Ch.

148, Sec. 24, eff. January 1, 2006.

Acts 2009, 81st Leg., R.S., Ch.

672, Sec. 5, eff. September 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

672, Sec. 6, eff. September 1, 2009.

Sec. 115.015. NOTICE TO BENEFICIARIES OF TORT OR CONTRACT

PROCEEDING. (a) A court may not render judgment in favor of a

plaintiff in an action on a contract executed by the trustee or

in an action against the trustee as representative of the trust

for a tort committed in the course of the trustee's

administration unless the plaintiff proves that before the 31st

day after the date the action began or within any other period

fixed by the court that is more than 30 days before the date of

the judgment, the plaintiff gave notice of the existence and

nature of the action to:

(1) each beneficiary known to the trustee who then had a present

or contingent interest; or

(2) in an action on a contract involving a charitable trust, the

attorney general and any corporation that is a beneficiary or

agency in the performance of the trust.

(b) The plaintiff shall give the notice required by Subsection

(a) of this section by registered mail or by certified mail,

return receipt requested, addressed to the party to be notified

at the party's last known address. The trustee shall give the

plaintiff a list of the beneficiaries or persons having an

interest in the trust estate and their addresses, if known to the

trustee, before the 11th day after the date the plaintiff makes a

written request for the information.

(c) The plaintiff satisfies the notice requirements of this

section by notifying the persons on the list provided by the

trustee.

Amended by Acts 1983, 68th Leg., p. 3332, ch. 567, art. 2, Sec.

2, eff. Jan. 1, 1984.

Sec. 115.016. NOTICE. (a) If notice of hearing on a motion or

other proceeding is required, the notice may be given in the

manner prescribed by law or the Texas Rules of Civil Procedure,

or, alternatively, notice may be given to any party or to his

attorney if the party has appeared by attorney or requested that

notice be sent to his attorney.

(b) If the address or identity of a party is not known and

cannot be ascertained with reasonable diligence, on order of the

court notice may be given by publishing a copy of the notice at

least three times in a newspaper having general circulation in

the county where the hearing is to be held. The first publication

of the notice must be at least 10 days before the time set for

the hearing. If there is no newspaper of general circulation in

the county where the hearing is to be held, the publication shall

be made in a newspaper of general circulation in an adjoining

county.

Added by Acts 1983, 68th Leg., p. 3332, ch. 567, art. 2, Sec. 2,

eff. Jan. 1, 1984.

Sec. 115.017. WAIVER OF NOTICE. A person, including a guardian

of the estate, a guardian ad litem, or other fiduciary, may waive

notice by a writing signed by the person or his attorney and

filed in the proceedings.

Added by Acts 1983, 68th Leg., p. 3332, ch. 567, art. 2, Sec. 2,

eff. Jan. 1, 1984.