In In re Estate of Moore, the court of appeals addressed the proper procedure for removing an acting trustee and appointing a successor trustee. No. 08-14-00298-CV, 2018 Tex. App. LEXIS 1950 (Tex. App.—El Paso March 15, 2018, no pet. history). A beneficiary filed a motion to remove a trustee, but did not serve notice of the hearing. After the court removed the trustee, the trustee appealed on multiple grounds, including that she was denied due process by being removed without notice of the hearing.
The court of appeals first described the authority to remove a trustee:
A trustee may be removed by the terms prescribed in the trust instrument, or by a court of competent jurisdiction after a hearing brought by an “interested person,” provided the court finds cause for removal. Tex. Prop. Code Ann. § 113.082 (West 2014). Under the Texas Property Code, a district court has original jurisdiction over all proceedings against a trustee and all proceedings concerning trusts, including proceedings to construe a trust instrument and to appoint or remove a trustee. Tex. Prop. Code Ann. § 115.001(a)(West Supp. 2017); Cone v. Gregory, 814 S.W.2d 413, 414 (Tex. App.–Houston [1st Dist.] 1991, no pet.). A district court’s jurisdiction over such proceedings is exclusive, except for jurisdiction conferred by law on lesser courts, including a county court at law. Tex. Prop. Code Ann. § 115.001(d). Further, in a county that lacks a statutory probate court but has a county court a law exercising original probate jurisdiction, the interpretation and administration of a testamentary trust or an inter vivos trust created by a decedent whose will has been admitted to probate in that court is considered a matter related to a probate proceeding. Tex. Est. Code Ann. § 31.002 (West 2014). Thus, under either code, a county court a law acting in this capacity has jurisdiction over a suit involving a testamentary trust. Gregory, 814 S.W.2d at 414. A trustee is a necessary party to an action involving a trust or against a trustee, provided a trustee is serving at the time the action is filed. Tex. Prop. Code Ann. § 115.011; Smith v. Plainview Hospital and Clinic Foundation, 393 S.W.2d 424, 427 (Tex. Civ. App.—Amarillo 1965, writ dism’d). Notice may be given to parties or those entitled to receive notice by the manner prescribed by the Texas Rules of Civil Procedure, or may be given directly to the party or to the party’s attorney if the party has appeared by attorney or requested that notice be sent to his attorney. Tex. Prop. Code Ann. § 115.016 (West 2014). Texas Rules of Civil Procedure 21a allows service to be accomplished by delivering a copy to the party to be served or to the party’s duly authorized agent or attorney of record. Tex.R.Civ.P. 21a.
Id. The court held that the order removing the trustee must be reversed because she was not served with notice of the hearing:
Here, it is undisputed that Appellant did not personally receive notice in the proceeding below. It is also undisputed that Wm. Monroe Kerr and A.M. Nunley III, Appellant’s attorneys of record in the original probate proceeding, were not served with notice of the hearing. The record only contains a certificate of service on Brandon S. Archer, who did not appear as attorney of record in the original probate proceeding and was not designated to receive service on Appellant’s behalf as allowed by Section 115.016 of the Texas Property Code. Failure to give proper notice “violates ‘the most rudimentary demands of due process of law.’” Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 84, 108 S.Ct. 896, 899, 99 L.Ed.2d 75 (1988)(quoting Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 1190, 14 L.Ed.2d 62 (1965)). If improper notice is given to a party of proceedings when notice is required, any subsequent court proceedings vis-à-vis the party not given notice are void. Lytle v. Cunnigham, 261 S.W.3d 837, 840 (Tex.App.–Dallas 2008, no pet.); Gutierrez v. Lone Star Nat. Bank, 960 S.W.2d 211, 214 (Tex.App.–Corpus Christi-Edinburg 1997, pet. denied). At the time of the hearing below, Appellant had been serving and holding herself out as acting trustee for more than twenty years. Appellee asserts that she did not qualify as interested person under the Estates Code and therefore there was no requirement that she be cited or otherwise given notice. But Appellant was not required to show that she was an interested person; per Section 115.011 of the Texas Property Code, as trustee, Appellant was a necessary party to the proceedings. Tex. Prop. Code Ann. § 115.011. She was, however, not served with citation, and “[i]f proper service is not affirmatively shown, there is error on the face of the record.” Westcliffe, Inc. v. Bear Creek Const., Ltd., 105 S.W.3d 286, 290 (Tex.App.–Dallas 2003, no pet.)(citing Primate Const., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994)). Because Appellant was a necessary party and has demonstrated error on the face of the record, she has carried her burden under elements two and four to succeed on restricted appeal. Alexander, 134 S.W.3d at 848. Since proper service on Appellant is not shown, it is apparent that the county court at law did not obtain jurisdiction over Appellant and the proceeding to have her removed as trustee and a successor trustee appointed is void. Lytle, 261 S.W.3d at 840.
Id. The court reversed and remanded for further proceedings.
