The Texas Court of Appeals conditionally granted the relator’s writ of mandamus and ordered the trial judge to vacate its order for the return of equipment and proceeds issued against the relator in his capacity as trustee, even though the suit had only been brought against him individually. In re Gregg, No. 07-25-00035-CV (Tex. Ct. App. May 29, 2025).
Kenneth Gregg owned substantial farmland. In 2023, he suffered from health problems, including dementia. He transferred land and cattle to his son, Monte, in June and October 2023. In December 2023, Kenneth’s daughters applied for temporary and permanent guardianship of Kenneth. On December 22, the trial court appointed Kenneth’s daughter Lucretia as temporary guardian of his estate. The trial court’s order limited Lucretia’s power over Kenneth’s estate to possessing the assets of the estate, spending estate funds for Kenneth’s daily care, and protecting and preserving the estate assets.
In July 2024, Kenneth created a trust, named Monte as the trustee, and conveyed all of his remaining property to the trust. Later in July 2024, the trial court entered an order appointing Lucretia as permanent guardian of Kenneth’s estate. Lucretia then filed a motion requesting the return and delivery of equipment and proceeds, but it was filed against and served on Monte only in his individual capacity, not as trustee of the trust. On December 30, 2024, the trial court entered an order to return equipment and proceeds.
Monte filed a petition for a writ of mandamus in the Court of Appeals of Texas seeking an order compelling the trial court judge to vacate the return order. Monte asserted that (1) the return order was an impermissible prejudgment attachment, (2) the return order exercised authority over him in all his capacities even though he was not a party to the suit as trustee, (3) Lucretia filed an original petition in the guardianship action instead of as a separate suit, and (4) the return order was impermissibly vague and overbroad.
The Court of Appeals addressed only Monte’s second argument, finding that it was dispositive. The court noted that mandamus is an extraordinary remedy granted only when a relator can show that the trial court clearly abused its discretion and there is no adequate appellate remedy. Lucretia responded to Monte’s argument that the return order improperly exercised control over him in all capacities even though he was not a party to the suit in his capacity as trustee by asserting that Texas law prohibited the transfer of Kenneth’s property out of his estate while he was under active guardianship, and thus no trust was created.
The court first addressed whether Kenneth had the authority to create the trust after the trial court’s December 2023 order appointing Lucretia as temporary guardian of Kenneth’s estate. The court determined that Texas Estate Code Ann. § 1151.001 controlled whether Kenneth could create the trust while under the temporary guardianship: It provided that an incapacitated person for whom a guardian is appointed retains all legal rights and powers except those designated by court order as legal disabilities because they have been specifically granted to the guardian. The court found that because section 1151.001 created a presumption that a ward retains all powers not specifically granted to the guardian, and nothing in the temporary guardianship order prohibited Kenneth from creating a trust or transferring estate property or granted those rights to Lucretia, Kenneth retained the right to create the trust in July 2024.
In addition, the court ruled that because the return order was entered against Monte in all his capacities even though he was not sued in his capacity as trustee, the trial court lacked jurisdiction over the trust and its return order was void. Because the return order was void, the court conditionally granted Monte’s petition for writ of mandamus and directed the court to vacate the return order.
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