In In re Estate of Poff, the Texas Appeals Court was presented with numerous issues but found one to be determinative — the Texas statutory probate court had a statutory obligation to have a court reporter transcribe oral testimony at a contested probate hearing and failed to do so. The error was harmful, so the Texas appeals court reversed.
The Facts of In re Estate of Poff
Harmon Bryan Poff, Sr. had three children: Bryan, Nathalee, and Nina. Poff held an ownership interest in an entity called Poff LLC. One week before Poff died, the manager of Poff LLC relinquished the LLC’s operating rights to the “Scamardo well” and resigned Poff LLC as the operator of that well.
Decedent died on August 25, at the age of 104.
On September 11 the manager of Poff LLC granted and quitclaimed to Poff Family LLC (Family LLC) the interest in the Scamardo well that had been held by Poff LLC.
Bryan then applied to probate Poff’s will in Tarrant County Texas Probate Court Number Two, a statutory probate court. Shortly thereafter, Nathalee’s son, Scott, filed a first amended application to probate Poff’s will and for issuance of letters of dependent administration.
Scott was named the dependent administrator of Poff’s will. Scott later informed the court that the primary estate asset was Poff’s interest in Poff LLC. Scott requested court authority to operate Poff LLC and obtain its business records, and the court granted his request in January 2016.
A dispute arose between Scott, as administrator of the estate, and Bryan. Bryan accused Scott of wrongfully converting funds, and that Poff LLC owed profits to Bryan’s own company from the sale of oil and gas.
Two hearings occurred. At the second hearing, Scott requested that the trial be on record. No court reporter was provided. The court issued an order finding certain transfers valid, and finding that Bryan “shall continue as the Operator of the Scamardo Well.”
The trial court entered additional findings and conclusions adverse to Scott and the Texas estate.
Scott, in the capacity of representative of the Estate of Poff, appealed. Scott raised nine issues in the estate’s challenge to the Texas probate court’s rulings. The Texas appeals court only addressed the issue of whether the Texas statutory probate court erred when it held the final trial on disputed facts without a court reporter present to make a record of oral testimony.
The Texas Government Code Court Reporter Requirement
(a) On request, an official court reporter shall:
(1) attend all sessions of the court;
(2) take full shorthand notes of oral testimony offered before the court, including objections made to the admissibility of evidence, court rulings and remarks on the objections, and exceptions to the rulings;
(3) take full shorthand notes of closing arguments if requested to do so by the attorney of a party to the case, including objections to the arguments, court rulings and remarks on the objections, and exceptions to the rulings;
(4) preserve the notes for future reference for three years from the date on which they were taken; and
(5) furnish a transcript of the reported evidence or other proceedings, in whole or in part, as provided by this chapter.
(b) An official court reporter of a district court may conduct the deposition of witnesses, receive, execute, and return commissions, and make a certificate of the proceedings in any county that is included in the judicial district of that court.
(c) The supreme court may adopt rules consistent with the relevant statutes to provide for the duties and fees of official court reporters in all civil judicial proceedings.
(d) A judge of a county court or county court at law shall appoint a certified shorthand reporter to report the oral testimony given in any contested probate matter in that judge’s court.
A Statutory Hierarchy Exists For Probate Jurisdiction In Various Texas Courts
In Texas, where a county has a county court but no county court at law or statutory probate court, the court with original probate jurisdiction is the county court. Tex. Estates Code § 32.002(a).
If the county also has a county court at law that exercises original probate jurisdiction but no statutory probate court, then both the county court and the county court at law will have concurrent original jurisdiction of probate matters, unless otherwise provided by law. Id. § 32.002(b).
If the county has a statutory probate court, then the statutory probate court is the court with original probate jurisdiction. Id. § 32.002(c)
Here, the case proceeded in a statutory probate court. The term “statutory probate court” is defined in the Estates Code along with other types of courts.
The Estates Code defines the generic term “court” to include “a court created by statute and authorized to exercise original probate jurisdiction.” Tex. Estates Code § 22.007(a)(2). The Code provides that the terms “county court” and “probate court” are synonymous and both include “a court created by statute and authorized to exercise original probate jurisdiction.” Id. § 22.007(b)(2). The Estates Code defines a “statutory probate court” as a court created by statute and designated as a statutory probate court under Chapter 25 [of the] Government Code. For purposes of this code, the term does not include a county court at law exercising probate jurisdiction unless the court is designated a statutory probate court under Chapter 25 [of the] Government Code.
Does The Court Reporter Requirement Apply To Statutory Probate Courts In Texas?
Yes, the court reporter requirement contained in the Texas Government Code applies to statutory probate courts.
A statutory probate court is a court created by statute and authorized to exercise original probate jurisdiction. See id. §§ 22.007(c), 32.002(c). As such, a statutory probate court meets the definition of a “county court.” Id. § 22.007(b)(2). And the Government Code directs that a judge of a “county court . . . shall appoint a certified shorthand reporter to report the oral testimony given in any contested probate matter in that judge’s court.” Tex. Gov’t Code § 52.046(d).
Therefore, the requirement of a court reporter was mandatory on the statutory probate court under Section 52.046(d) requiring “a judge of a county court or a county court at law to appoint a certified shorthand reporter to report the oral testimony given in any contested probate matter in that judge’s court.”
The Texas appeals court stated:
The court did not have a court reporter to record the testimony. This was error. Further, because the obligation was on the court to supply the court reporter, and not on Scott to request a court reporter, we reject Family LLC’s argument that Scott waived error by either failing to object or failing to request a court reporter…
The absence of a record probably prevents Smith from properly presenting his appeal to this court. Tex. R. App. P. 44.1(a)(2). The inability to properly present the appeal is highlighted by Family LLC’s repeated argument in its brief that every issue raised by Smith is waived absent a record to support his arguments.
The lack of a court reporter was error, and the error was harmful. Having a court reporter in any contested probate matter is required in Texas statutory probate court.