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no. 10-0063 - Supreme Court of Texas

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					                              NO. 10-0063
                         ______________________

                                IN THE
                      SUPREME COURT OF TEXAS
                        ______________________

                            TAMARA PRINCE,
                              PETITIONER,

                                    VS.

 DAVID L. FOREMAN, d/b/a J&D CONTRACTORS, AND GEORGE WESLEY HAIR,
                                   JR.,
                             RESPONDENTS.
                          ______________________

                      On Petition for Review from the
                 Second Court of Appeals, Fort Worth, Texas
                         ______________________

                         PETITION FOR REVIEW
                          ______________________



                                  Respectfully submitted,

                                  ART BRENDER
                                  State Bar No. 02954500

                                  JASON C.N. SMITH
                                  State Bar No. 00784999

                                  LAW OFFICES OF ART BRENDER
                                  600 Eighth Ave.
                                  Fort Worth, Texas 76104
                                  (817) 334-0171, telephone
                                  (817) 334-0274, telecopier

                                  ATTORNEY FOR PETITIONER,
March 24, 2010                    TAMARA PRINCE
                                      IDENTITY OF PARTIES

        Pursuant to Tex. R. App. P. 53.2(a), the Petitioner certifies that the following is a complete

list of the interested parties in this matter:


Petitioner:                      Tamara Prince

Respondents:                     David L. Foreman, d/b/a J&D Contractors
                                 George Wesley Hair, Jr.

Petitioner’s Counsel:            Art Brender
                                 Jason C.N. Smith
                                 Law Offices of Art Brender
                                 600 Eighth Ave.
                                 Fort Worth, Texas 76104

Respondents’ Trial Counsel: Micheal V. Winchester
                            Jack Conner
                            Micheal V. Winchester & Associates, P.C.
                            5601 Granite Parkway, Suite 410
                            Plano, Texas 75024

Respondents’ Appellate
Counsel:                         D. Bradley Dickinson
                                 Dickinson/Bartlett, P.C.
                                 4849 Greenville Ave., Suite 1550
                                 Dallas, Texas 75206




                                                  i
                                                    RECORD REFERENCES


Clerk Record . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C.R.

Reporter’s Record . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . R.R.

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   App.

Plaintiff’s Exhibit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . P.Ex.

Defendants’ Exhibit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D.Ex.

Court’s Exhibit . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C.Ex.




                                                                        ii
                                    APPENDICES

App. 1.   Final Judgment (November 26, 2008)

App. 2.   Charge of the Court and Verdict

App. 3.   Opinion and Judgment

App. 4.   Tex. Fam. Code, § 2.401

App. 5.   Shepherd v. Ledford, 962 S.W.2d 28 (Tex. 1998)

App. 6.   Order Declaring Heirship and Granting Independent Administration (June 22, 2007)

App. 7.   Notice of Marriage




                                            iii
                                                   TABLE OF CONTENTS

                                                                                                                                  Page:

IDENTITY OF PARTIES .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

RECORD REFERENCES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

APPENDICES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix

STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

ISSUE PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii

          I.         The trial court erred in violation of Sec. 2.401, Tex. Fam. Code, and the
                     teaching of Shepherd v. Ledford, 962 S.W.2d 28 (Tex. 1998), in entering
                     judgment denying the marital status of Tamara Prince and Rodrick Williams,
                     contrary to the judgment of Probate Court No. 1, of Tarrant County, Texas,
                     which found, pursuant to § 2.401, Tex. Fam. Code, that Prince and Williams
                     were, prior to Williams’ death, legally married.

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

          I.         The trial court erred in violation of Section 2.401, Tex. Fam. Code, and the
                     teaching of Shepherd v. Ledford, 962 S.W.2d 28 (Tex. 1998), in entering
                     judgment denying the marital status of Tamara Prince and Rodrick Williams
                     contrary to the judgment of Probate Court No. 1, of Tarrant County, Texas,
                     which found, pursuant to Sec. 2.401, of the Tex. Fam. Code, that Prince and
                     Williams were, prior to Williams’ death, legally married.. . . . . . . . . . . . . . . . . . . 6

                     A. Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

                     B. Tamara Prince and Rodrick Williams Were Legally Married,
                     Pursuant to Sec. 2.401(a)(2), Tex. Fam. Code.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 7



                                                                     iv
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13




                                                                    v
                                              TABLE OF AUTHORITIES


Case:                                                                                                                                 Page:

Buster v. Metro. Transit Auth.,
       835 S.W.2d 236, 237-38 (Tex. App. – Houston [14th Dist.] 1992, no writ)                                              . . . . . . 12, 13

City of DeSoto v. White,
        288 S.W.3d 389 (Tex. 2009)                    .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Entergy Gulf States, Inc. v. Summers,
       282 S.W.3d 433 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fenton v. Reed,
      4 Johns 52 (N.Y. 1809). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

First American Title Ins. Co. v. Combs,
       258 S.W.3d 627 (Tex. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Garrett v. Borden,
       283 S.W.3d 852 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

H.C. Beck, Ltd. v. Rice,
       284 S.W.3d 349 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

In Re Dep’t of Family & Protective Svcs.,
       273 S.W.3d 637 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

In the Interest of R.L. and S.M.L., the Children,
        622 S.W.2d 660, 663 (Tex. Civ. App. – Fort Worth 1981, no writ). . . . . . . . . . . . . . . . . . 8

JC Penney Life Ins. Co. v. Heinrich,
      32 S.W.3d 380 (Tex. App. – San Antonio 2000, pet. den’d).. . . . . . . . . . . . . . . . . . . . . . xi

Kendrix v. Southern Pac. Transp.,
      907 S.W.2d 111, 112-14 (Tex. App. – Beaumont 1995, writ den’d). . . . . . . . . . . . . . . . 25

Loving v. Virginia,
       388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Marten v. Moore,
       96 U.S. 76, 81 (1877). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

                                                                   vi
Case:                                                                                                                            Page:


Middlebrook v. Wideman,
      203 S.W.2d 686, 688 (Tex. Civ. App. – Texarkana 1947, no writ).. . . . . . . . . . . . . . 10, 11

Nava v. Reddy Partnerships/Quail Chase,
      988 S.W.2d 346 (Tex. App. – Houston [1st Dist.] 1999, no pet.). . . . . . . . . . . . . . . . . . . xi

Prince v. Foreman, et al.,
       2010 WL 87334 (Tex.App.-Fort Worth January 7, 2010). . . . . . . . . . . . . . . . . . . . . . . . . 11

Russell v. Russell,
       865 S.W.2d 929, 931 (Tex. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-11

Shepherd v. Ledford,
      962 S.W.2d 28 (Tex. App. 1998).. . . . . . . . . . . . . . . . . . . . . . . xi, xii, 6, 7, 8, 9, 11, 12, 13

Skinner v. Oklahoma,
       316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tarpley v. Poages G.E’s Adm’r,
       2 Tex. 139, 147 (1847).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Tex. Employers Ins. Ass’n v. Elder,
       282 S.W.2d 371 (Tex. 1955) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8



Statutes and Other Authorities:


Tex. Civ. Prac. & Rem. Code, § 71.001, et seq.. . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . xi

Tex. Fam. Code, § 1.91, et seq. . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12

Tex. Fam. Code, § 2.401, et seq. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix, xii, 5, 6, 7, 11, 13

Tex. Gov’t Code, § 22.001, et seq. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

Tex. Prob. Code, § 233. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 12

Tex. R. App. P. 53.2(a) . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i


                                                                    vii
Tex. R. Civ. P. 93 . . . . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12


Note, Common Law Marriage and Unmarried Cohabitation: An Old Solution to a New Problem,
39 U.Pitt.L.Rev. 579, 585 (1978).. . . . . . . . . . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Kirkpatrick, Common-Law Marriages: Their Common Law Basis and Present Need, 6th St. Louis
U.L.J. 30, 45 (1960). . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10




                                                                     viii
                              Statement of the Case


Nature of the case:           This is a wrongful death case. Tamara Prince (“Prince”),
                              individually, and as the common law spouse of Rodrick
                              Williams, and as the mother and next friend of Rodrick
                              Williams, Jr. and Shaleah Williams, the minor children of
                              Rodrick Williams, and Shelia Vanessa Williams, mother of
                              Rodrick Williams, filed suit, alleging that George Wesley
                              Hair, Jr. (“Hair”), while in the course and scope of his
                              employment for David L. Foreman, d/b/a J&D Contractors
                              (“J&D”), negligently caused the death of Rodrick Williams by
                              ignoring highway warning signs and properly placed safety
                              cones, crashing his pickup truck into the back of a road
                              maintainer, which was performing routine road maintenance
                              on the south shoulder of U.S. Hwy. 287, in Ellis County,
                              Texas. Hair’s pickup truck struck Rodrick Williams, causing
                              his death and that of another highway worker, as well as
                              causing injuries to several others. Trial to a jury commenced
                              on July 28, 2008, and resulted in a verdict awarding damages
                              to Rodrick Williams, Jr. and Shaleah Williams, the minor
                              children of Rodrick Williams, and to his mother, Shelia
                              Vanessa Williams. Over objection, the trial court submitted
                              the question of informal (common law) marriage to the jury,
                              which found against Tamara Prince on the issue of her
                              marriage to Rodrick Williams. The Plaintiffs filed a Notice
                              of Marriage and Motion in Limine to exclude evidence
                              concerning the marital relationship of Tamara Prince and
                              Rodrick William as determined by an Order of Probate Court
                              No. 1, Tarrant County, Texas, declaring them married, in
                              compliance with Sec. 2.401, Tex. Fam. Code. The trial court
                              denied that motion and Prince’s subsequent Motion for New
                              Trial. Prince timely perfected her appeal to the Court of
                              Appeals, which was denied by written opinion on January 7,
                              2010.

Trial Judge:                  Hon. Ken Curry

Trial Court:                  153rd District Court, Tarrant County, Texas

Disposition by Trial Court:   The jury by its verdict found that Tamara Prince and Rodrick
                              Williams were not married at the time of his death.



                                        ix
Parties in the Court of Appeals:     Appellant:   Tamara Prince
                                     Respondents: David L. Foreman, d/b/a J&D Contractors,
                                                  and George Wesley Hair, Jr.

Participating Justices and Author:   Justices Sue Walker, Bob McCoy and Bill Meier.

Citation for Opinion:                Prince v. Foreman, et al., 2010 WL 87334 (Tex.App.-Fort
                                     Worth January 7, 2010)

Disposition by the Court of Appeals: The Court of Appeals affirmed the trial court’s judgment.




                                               x
                                    Statement of Jurisdiction

       The Supreme Court has jurisdiction over this appeal because the Court of Appeals’ decision

holds differently, as a matter of law, from the decision of the Supreme Court in Shepherd v. Ledford,

962 S.W.2d 28 (Tex. 1998), with regard to the manner of proving an informal (common law)

marriage in a Texas wrongful death case. Tex. Gov’t Code, § 22.001(a)(2). The Court of Appeals

decision is also contrary, as a matter of law, to the holding of the Houston Court of Appeals, in Nava

v. Reddy Partnerships/Quail Chase, 988 S.W.2d 346 (Tex. App. – Houston [1st Dist.] 1999, no pet.),

and the holding of the San Antonio Court of Appeals, in JC Penney Life Ins. Co. v. Heinrich, 32

S.W.3d 380 (Tex. App. – San Antonio 2000, pet. den’d) on the same issue. Tex. Gov’t Code, §

22.001(a)(2).

       The Supreme Court also has jurisdiction over this appeal because the case involves the

construction or validity of Sec. 2.401, Tex. Fam. Code, as applied to the Texas Wrongful Death and

Survivor statutes, § 71.001, et seq., Tex. Civ. Prac. & Rem. Code.            Texas Gov’t Code, §

22.001(a)(2).

       The Supreme Court also has jurisdiction over this appeal because the Court of Appeals

committed an error regarding the interpretation of § 2.401 of the Texas Family Code as applied to

the Texas Wrongful Death and Survivor statutes, § 71.001, et seq., Tex. Civ. Prac. & Rem. Code,

that is of such importance to the jurisprudence of the state that this Court should correct the error.

Tex. Gov’t Code, § 22.001(a)(6).




                                                 xi
                                       Issue Presented

I.   Whether the trial court erred in violation of Sec. 2.401, Tex. Fam. Code, and the teaching of

     Shepherd v. Ledford, 962 S.W.2d 28 (Tex. 1998), in entering judgment denying the marital

     status of Tamara Prince and Rodrick Williams, contrary to the judgment of Probate Court

     No. 1, of Tarrant County, Texas, which found, pursuant to § 2.401, Tex. Fam. Code, that

     Prince and Williams were, prior to Williams’ death, legally married.




                                              xii
                                         Statement of Facts

       On October 9, 2006, Rodrick Williams was employed by Ballou Construction Co., as a

laborer on a micropaving machine that was used to lay asphalt on the highway prepared for

resurfacing. (R.R.2, 32-42, 45-61, 102-14) On the afternoon of the collision, the micropaver was

operating on the shoulder of the southbound lane of U.S. Hwy. 287 in Ellis County, Texas. (P.Ex.1)

It was a clear day and there were no visual obstructions to the paving operation. (P.Ex.1) The

micropaving operation was preceded on the highway by signage that included a message board,

flashing arrow board, and three fixed signs indicating that road work was ahead. (P.Ex.2, A-R) The

right traffic lane of southbound U.S. Hwy. 287 was closed one mile ahead of the micropaver by a

cone taper that closed all but the left southbound lane of U.S. Hwy. 287. (R.R.2, 32-42, 45-61, 102-

14; P.Exs. 2A-R, 4)

       According to Paul Nutsch, a co-worker of Rodrick Williams, who was working on top of

the micropaver, George Wesley Hair, Jr., driving a red Silverado pickup truck, initially moved to the

left lane as he was directed by the cones, but then turned to his right, crossed over the cones, placed

something in the seat of the pickup truck with his right hand, grabbed the steering wheel, while

sitting upright and struck the rear of the micropaver. (R.R.2, 109-115)

       Rodrick Williams, who had been working at the rear of the micropaver at the time of the

collision, died as a result of the collision. (R.R.2, 36-55, 60-61; P.Exs.1,6,7,8,9)

       Motorist, James Lowe, was driving behind the pickup truck driven by Hair and testified that

the road was well maintained, the weather was clear, and there were no obstructions along the

highway. (R.R.2, 63-69) Lowe, travelling two or three car lengths behind the pickup truck, saw

Hair’s pickup turned slowly to the right as if it was pulling off the highway, and never slowed down.


                                                  1
(R.R.2, 63-69) Lowe never saw the pickup brake lights come on before it ran into the back of the

paving machine. (R.R.2, 64-68) Lowe never saw Hair slump over or appear to have fallen asleep.

(R.R.2, 66)

       John Painter, an accident reconstructionist, former instructor at Northwestern Traffic

Institute, in Evanston, Illinois, and a former investigator for the National Transportation Safety

Board, examined the sensing diagnostic module (also known as the “black box”) which was

contained in Hair’s Silverado pickup truck and interpreted the information stored in the module.

(R.R.2, 82-88) Painter testified that the speed of the pickup prior to the point of impact was 37

m.p.h. (R.R.2, 82-88) He also testified there was no braking whatsoever for eight seconds,

approximately 432 ft. prior to impact. (R.R.2, 82-88) Waxahachie Police Officer, Joshua Williams,

a thirteen-year veteran who investigates approximately 100 traffic collisions a year, testified that

based upon his interview with Hair and his investigation at the scene, that Hair was responsible for

causing the collision due to fatigue, lack of sleep, failure to control his speed, failure to drive in a

single lane, and penetration of the barrier and cones of the construction zone. (R.R.2, 43-61)

       Hair had no remorse and refused to cooperate at the scene when confronted by Officer Kevin

Patterson to the point that Patterson told him:

        You know, I had to bring it to his attention, look, there is a guy laying 20 ft. from us.
       He’s dead. I think I even told him, you know, you caused this, I am going to need
       some cooperation.

(R.R.2, 41)

       Officer Patterson was also of the opinion that Hair was in violation of the rules of the road

by entering a construction zone and thus, was responsible for the collision. (R.R.2, 41-42)

       Hair admitted driving the red pickup truck on the occasion in question, but he could not


                                                   2
remember seeing the construction work signs; could not remember whether he was talking on a

cellular telephone at the time; could not remember whether he put the cell phone down in the seat

of the pickup before the collision; and could not remember driving into the back of the micropaver.

(R.R.2, 128-42)

       Zachary White, the Emergency Medical Technician, who examined Hair at the scene,

determined that Hair was alert and oriented, times four. (R.R.2, 70-76) Hair told White he had not

lost consciousness at any point. (R.R.2, 70-76, 132-134)

       Hair, in deposition, testified he had a cell phone on the occasion in question, but gave the

wrong cellular telephone number to Plaintiffs, a matter that was not discovered until one week before

trial, after the erroneous records had been subpoenaed to court. (R.R.2,135, 144-148) Despite

admitting that he crossed the cones into the construction zone and struck the deceased, Hair

maintained that he was not negligent in running into the micropaver machine and causing the death

of Williams. (R.2, 137)

       Williams, who died just short of his twenty-seventh birthday, was raised in the Baptist

Church by his religious mother, Sheila Williams, a twenty-seven-year employee of Child Care

Associates, a government contractor that runs Head Start Centers. (RR.4, 10-56) He sang in the

church choir and enjoyed the usual childhood activities. Rodrick Williams graduated from Trimble

Tech High School, where he excelled at all sports (R.R.4, 10-56; P.Exs. 34, 34A-N, 35), but

particularly, at football, where according to his football coach:

        Rodrick was small . . . but had a big heart. His work ethic was great. You know, he
       - what he made up for in size was his work, his work ethic.

(R.R.3, 124-29; P.Exs.34A-N)

       Williams had been employed by Ballou Construction Co. for three of the previous four

                                                  3
seasons prior to his death, from March through November, on similar type of road maintenance

projects throughout Texas and New Mexico. (R.R.2, 170-1)

       In 1999, Williams met Tamara Prince. After a nine-month courtship, they began to discuss

marriage, moved in together, and considered themselves husband and wife from that point forward.

(R.R.2, 27-30) They had two children, Rodrick Williams, Jr., born on July 10, 2000, and Shaleah

Williams, born on January 14, 2003. (R.R.2, 159-60) Rodrick Williams was listed as the father of

both children on their birth certificates. (P.Exs.36, 37) Their marriage was confirmed by Shelia

Williams (R.R.2, 27-59; P.Exs.44, 45, 46) and Tamara Prince testified that her one and only

marriage was to Rodrick Williams. (R.R.2, 159-90) They called and texted each other constantly

even when separated due to Williams’ work. (R.R.3, 106-10; P.Exs. 44, 45, 46)

       The informal marriage of Prince and Williams was determined pursuant to Sec. 2.401(a)(2),

Tex. Fam. Code, by Probate Court order dated June 15, 2007, and signed by Judge Steven M. King,

Probate Court No. 1, Tarrant County, Texas. (R.R.2, 150-4; C.R.758-61, 875-6, 1240, 1242) (App.

6) Notice of Marriage, which included the entire probate record, was filed in the trial court record

on April 21, 2008. (C.R.719-65) (App. 7) The trial court overruled the Plaintiffs’ Motion in Limine

seeking to prevent the introduction of evidence concerning the marriage of Prince and Williams

based upon their Notice of Marriage, which had been properly proven and authenticated, pursuant

to the procedures set forth in Sec. 2.401, et seq., Tex. Fam. Code. (C.R.16-18, 150-4, 719-65, 825-

26, 1240) (App. 7) The trial court following a pretrial hearing held that:

       . . . the asserted marital status of Tamara Prince is a fact issue which will be
       determined at the time of trial and the actions taken by Tamara Prince to authenticate
       such marriage and the action taken in Probate Court are not necessarily binding on
       in [sic] this action. Accordingly, this court is of the opinion and finds that Plaintiffs’
       First Motion in Limine should be denied; . . .


                                                   4
(R.R.2, 16-18, 150-62; C.R. 719-65, 875-6, 1240)

        The trial court admitted only the Order Declaring Heirship and Granting Independent

Administration to be introduced before the jury, thus, preventing the jury from fully considering the

entire probate record. After admitting the probate order, the trial court, in essence, nullified the order

by instructing the jury that the Order from the Probate Court:

         . . . is not binding upon you in your determination of any question regarding informal
        marriage. You may consider the order and assign such weight as you may decide to
        the order in your determination of any question regarding informal marriage.

(R.R.2, 16-18, 150, 153, 157-62; C.R. 719-65, 1240)

        The jury found against Prince.

        The trial court entered Final Judgment on November 26, 2008 (C.R.1640) (App. 1), ignoring

the Probate Court determination of the marriage of Prince and Williams, which conflicts with the

Order of the Probate Court with regard to the recovery of the Estate of Rodrick Williams. Tamara

Prince timely filed her Notice of Appeal (C.R.1649).



                                     Summary of the Argument

        At the time of Rodrick Williams’ death, in 2006, he and Tamara Prince, had children, ages

3 and 6 years, and had lived together since the fall of 1999. Following Williams’ death, in order to

pursue wrongful death and survival claims, on behalf of the Estate and her minor children, Prince

was required by Sec. 233, Tex. Prob. Code, to file an action for declaration of heirship.

        Pursuant to an Order of Probate Court No. 1, of Tarrant County, Texas, Tamara Prince was

declared the legal wife and heir of Rodrick Williams. (App. 6) An action in the probate court to

determine the common law (informal) marriage is authorized by Sec. 2.401(a)(2), of Tex. Fam.


                                                    5
Code. This procedure has been approved by the Texas Supreme Court in Shepherd v. Ledford, 962

S.W.2d 28 (Tex. 1998). (App. 5) The trial court refused to recognize the legality of the marriage

pursuant to the probate court order; refused to admit the entire probate file; and submitted the

question of informal marriage to the jury instructing them that the order of the probate court was “not

binding” on the jury in any determination on informal marriage.

       The trial court erred in failing to acknowledge the informal marriage of Tamara Prince and

Rodrick Williams by submitting the matter to the jury, thus, creating a conflict between the jury

verdict in this action and the determination by the probate court to the contrary.



                                    Argument and Authorities

I.     The trial court erred in violation of Section 2.401, Tex. Fam. Code, and the teaching of
       Shepherd v. Ledford, 962 S.W.2d 28 (Tex. 1998), in entering judgment denying the
       marital status of Tamara Prince and Rodrick Williams contrary to the judgment of
       Probate Court No. 1, of Tarrant County, Texas, which found, pursuant to Sec. 2.401,
       of the Tex. Fam. Code, that Prince and Williams were, prior to Williams’ death, legally
       married.

                                      A. Standard of Review

       The standard of review is de novo since the issue is one of statutory interpretation and thus,

a question of law.

       An appellate court reviews question of statutory interpretation de novo. City of DeSoto v.

White, 288 S.W.3d 389 (Tex. 2009). Statutory construction is a legal question which is reviewed

de novo to ascertain and give effect to the legislature’s intent. H.C. Beck, Ltd. v. Rice, 284 S.W.3d

349 (Tex. 2009); Garrett v. Borden, 283 S.W.3d 852 (Tex. 2009); Entergy Gulf States, Inc. v.

Summers, 282 S.W.3d 433 (Tex. 2009). Thus, the question of whether or not Tamara Prince and

Rodrick Williams’ marriage had been established pursuant to Probate Court No. 1, of Tarrant

                                                  6
County, Texas, as permitted by Sec. 2.401(a)(2), Tex. Fam. Code, is a legal question concerning the

meaning of that statute and thus, reviewed de novo. In Re Dep’t of Family & Protective Svcs., 273

S.W.3d 637 (Tex. 2009); First American Title Ins. Co. v. Combs, 258 S.W.3d 627 (Tex. 2008).



              B. Tamara Prince and Rodrick Williams Were Legally Married,
                      Pursuant to Sec. 2.401(a)(2), Tex. Fam. Code

       The marriage of Tamara Prince and Rodrick Williams had been determined and approved

by Probate Court No. 1, in Tarrant County, Texas, in Cause No. 07-0335-1, styled, Estate of Rodrick

Williams, Deceased, by Order, dated June 15, 2007. (C.R.722-64) (Apps. 6 and 7) The Probate

Court had jurisdiction to declare Tamara Prince and Rodrick Williams married, pursuant to Sec.

2.401(a)(2) (formerly § 1.91(a)), of the Tex. Fam. Code, which states as follows:

               In a judicial, administrative or other proceeding, the marriage of a man and
       woman may be proved by evidence that:
               .
               .
               .
               (2)     the man and woman agreed to be married and after the agreement they
       lived together in this state as husband and wife and they represented to others that
       they were married. [Emphasis added.]

       The Texas Supreme Court interpreted this section of the Texas Family Code to approve this

method of proving a common law marriage in a wrongful death case in Shepherd v. Ledford, 962

S.W.2d 28 (Tex. 1998). (App. 5)

       In Shepherd, Mrs. Ledford claimed to have an informal marriage to her husband who died

as a result of medical negligence. The Court held as follows:

       Mrs. Ledford did not have to file her medical liability claim within one year of Mr.
       Ledford’s death. Rather, she only had to initiate a proceeding to prove the requisite
       elements of an informal marriage within one year of his death. See, Tex. Fam. Code
       § 1.91(a) & (b). There are legal procedures available for common-law spouses in

                                                7
       Mrs. Ledford’s situation. For example, Mrs. Ledford could have filed a Proceeding
       to Declare Heirship to establish the existence of her common-law marriage. See,
       Tex. Prob. Code § 48(a). Or she could have filed the wrongful death claim within
       one year of Mr. Ledbetter’s death and established the existence of the common-law
       marriage at trial. The choice was hers, as long as she initiated a proceeding to prove
       her informal marriage within the one-year time limit. See, Tex. Fam. Code § 1.91(b);
       Mossler, 818 S.W.2d at 754.

Shepherd at 32. (App. 5)

       Tamara Prince followed the Supreme Court’s instructions. She chose to establish her

informal marriage by filing in the probate court. She was required by the Texas Probate Code, Sec.

233, to file a probate action in order to retain counsel for the Estate and the two minors. After an

investigation by the Probate Court, which included an investigation and report of a court-appointed

guardian ad litem. Tamara Prince was declared to be the legal spouse and heir of Rodrick Williams

and their children were found to be legitimate children of their marriage. The determination by the

Probate Court created a presumption in favor of a valid marriage, which has long been recognized

by case law. Tex. Employers Ins. Ass’n v. Elder, 282 S.W.2d 371 (Tex. 1955). The Family Code,

likewise, recognizes this presumption in favor of marriage. Section 1.101, Tex. Fam. Code. The

presumption of marriage applies to informal marriages. In the Interest of R.L. and S.M.L., the

Children, 622 S.W.2d 660, 663 (Tex. Civ. App. – Fort Worth 1981, no writ). According to the

Supreme Court’s holding in Shepherd, the choice of where to prove the informal marriage belonged

to the surviving spouse.

       Only by plea to the jurisdiction based upon a legal impediment to the marriage as a matter

of law, i.e., an impediment which would void the marriage, such as the failure to terminate a prior

marriage, can attack a legal, valid marriage. The Defendants made no such plea. There is no

evidence in this record of any legal impediment to the marriage of Tamara Prince and Rodrick


                                                 8
Williams as found by Probate Court No. 1, of Tarrant County, Texas. (Apps. 6 and 7)

       The legislature was under “strong pressure” to abolish common law marriage altogether

when it enacted Title 1 of the Family Code. See, Russell v. Russell, 865 S.W.2d 929, 931 (Tex.

1993). Rather than abolish common law marriage, however, the legislature codified it and in doing

so, permitted the common law marriage to be proved, “[I]n any judicial, administrative, or other

proceeding, . . .” The statute did not limit that proof to actions brought only in the district court

permitting proof of informal marriage even in administrative or “other proceedings . . .” The

Supreme Court has recognized that there are “ . . . two basic fact patterns that will develop depending

upon whether both parties are now living” in attempts to prove a common law marriage. Russell,

865 S.W.2d at 932. Where one of the parties is deceased, our Supreme Court has recognized that

the survivor has a choice of either bringing the informal marriage suit before the probate court or

incorporating it in the wrongful death action. Shepherd, 962 S.W.2d at 32. (App. 5)

       Common law marriage, in the United States, has deep roots having been firmly established

by the middle of the nineteenth century. Most courts followed the decision of the State of New

York, in Fenton v. Reed, 4 Johns 52 (N.Y. 1809), which clearly established the right of common law

marriage.

       The Texas Supreme Court recognized common law marriage in 1847, following the holding

in Fenton , supra. Tarpley v. Poages G.E’s Adm’r, 2 Tex. 139, 147 (1847). The United States

Supreme Court has recognized that common law marriage is favored by public policy. Marten v.

Moore, 96 U.S. 76, 81 (1877). The Supreme Court has also held that the freedom to marry is one

of the “basic civil rights of man.” Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655

(1942). The freedom to marry has long been recognized as “. . . one of the vital personal rights


                                                  9
essential to the orderly pursuit of happiness by free men.” Loving v. Virginia, 388 U.S. 1, 87 S.Ct.

1817, 18 L.Ed.2d 1010 (1967).

       Texas courts have long held that informal marriage is a marriage for all purposes and cannot

be dissolved absent a formal divorce proceeding. Middlebrook v. Wideman, 203 S.W.2d 686, 688

(Tex. Civ. App. – Texarkana 1947, no writ).

       Despite pressure to abolish common law marriage by the insurance lobby in the passage of

the Family Code, the legislature not only failed to do so, but, rather, recognized common law

marriage by statute and set out the prerequisites for the determination of common law marriage.

Russell v. Russell, supra at 941. The formal codification by the legislature of the case law defining

common law marriage, together with subsequent amendments, established common law marriage

as a firm tenant of Texas law. The establishment of common law marriage recognizes the focus of

a marital relationship is the essence of the marriage, rather than the mere form. See, Note, Common

Law Marriage and Unmarried Cohabitation: An Old Solution to a New Problem, 39 U.Pitt.L.Rev.

579, 585 (1978).

       Most U.S. jurisdictions embraced common law marriage as a ‘means of making marriage

possible and clothing form with respectability.’” Kirkpatrick, Common-Law Marriages: Their

Common Law Basis and Present Need, 6th St. Louis U.L.J. 30, 45 (1960).

       The intent of the legislature and the interpretation by the Texas Supreme Court are consistent

with the obvious goal of preserving the right of common law or informal marriage so as to confirm

the legal status of children of the marriage, as well as establish rights of heirship and inheritance.

By codifying informal marriage, the legislature recognized informal marriage as the equivalent of

a formal marriage. The legislature did not limit the proof of such marriages to either district or


                                                 10
county courts since, according to the statute, even in an administrative procedure, one can prove

marital status under the Texas Family Code. Once proof of an informal marriage has been made,

there is no right to attack that marriage in a collateral proceeding, such as was the case at bar. The

only attack on a formal or established informal marriage is by plea to the jurisdiction, claiming that

parties were unable to marry because of a legal impediment to marriage such as age or the failure to

dissolve a prior marriage. Otherwise, informal marriage is as secure and binding as a formal

marriage, requiring a divorce in order to dissolve it. Russell v. Russell, supra; Middlebrook, supra.

       The action of the trial court in ignoring the determination of informal marriage declared by

the probate court, in essence, was to dissolve the marriage of Tamara Prince and Rodrick Williams,

and thus, throw the legal status of both the children and the inheritance into conflict. A portion of

the recovery in this case was to the Estate of Rodrick Williams. If Prince and Williams were not

married, Prince would have no right to any portion of the award of the Estate. Likewise, the status

of Williams’ children, Rodrick Williams, Jr. and Shaleah Williams, has been thrown in disarray

because of the conflicting judgments between the probate and district courts. The only logical

interpretation of Sec. 2.401(a)(2) is that the Probate Court order and judgment must be followed and

there can be no attack on that judgment other than by plea to the jurisdiction based upon a legal

impediment to the marriage. No such impediment exists. No such plea was made in this case.

       The Court of Appeals misconstrued this Court’s opinion in Shepherd, claiming that the

procedure for establishing one’s marriage, under § 2.401, of the Tex. Fam. Code (formerly, § 1.91),

was merely a procedural step in the process which requires additional proof in some other proceeding

in order to establish the marriage. Prince v. Foreman, 2010 WL 87334 (Tex. App. – Fort Worth

January 7, 2010) *6. (App. 3) Neither the statute nor this Court’s opinion, in Shepherd, states that


                                                 11
establishing an informal marriage is merely a procedural step to preventing estoppel in subsequent

actions. The Court of Appeals erroneously cites Shepherd, at p. 32, for that proposition. This Court,

in Shepherd, clearly held that Mrs. Ledford could prove her marriage in a probate hearing to declare

heirship. See, 962 S.W.2d at 32. (Petition for Review, p.8)1 The Court of Appeals based its opinion

on a pre-Shepherd opinion by the Fourteenth Court of Appeals, in Buster v. Metro. Transit Auth.,

835 S.W.2d 236, 237-38 (Tex. App. – Houston [14th Dist.] 1992, no writ). Buster, however,

predated this Court’s opinion in Shepherd, applying the Family Code provisions of marriage to the

wrongful death act. Furthermore, the issue itself was not presented in Buster. In examining the facts

in Buster, it is clear that Buster did not file a claim in the probate court until December 21, 1990,

following the August 24, 1989 death of Cathy Ann Espy, the woman to whom he claimed to have

a common law marriage. Buster, 835 S.W.2d at 237. This was well after the one-year statute of

limitation then in effect, pursuant to § 1.91, Tex. Fam. Code. Furthermore, the Court of Appeals

held that the record failed to indicate that the issue of common law marriage was “. . . fully and

fairly litigated in the probate court.” Id. at 237. Thus, based on the facts of that case, the issue of

the establishment of marriage by the Family Code was never presented since the probate record was

apparently never filed in the district court and no claim was made pursuant to the Family Code since

Buster did not meet the one-year statute of limitation imposed by Sec. 1.91, of the Family Code, as


       1
        The Court of Appeals additionally errs in footnote 2, claiming “appellees filed a verified
denial pursuant to Tex. R. Civ. P. 93(2), denying Prince was the surviving spouse of Williams.”
The defense never filed a plea to the jurisdiction and their “verified denial” denied that Rodrick
Williams, Jr. (the son of Rodrick Williams) was the surviving spouse of Williams. (C.R. 325-
31) Prince objected to this specific claim in Plaintiffs’ First Supplemental Petition (C.R. 648-53),
which was overruled by the district court. (C.R. 513-14) Prince continued to object before,
during and after the trial to the allowance of evidence on the marriage issue based on the failure
to properly plead, all of which were overruled by the trial court. (R.R.2, 150-53, 160-62; C.R.
648, 1240, 1275, 1340, 1550)

                                                  12
it then existed. Thus, Buster is not authority for, nor contrary, to the decision of the Supreme Court

in Shepherd.

                                            Conclusion

       WHEREFORE, PREMISES CONSIDERED, Petitioner, Tamara Prince, respectfully moves

the Court to enforce the ruling in Shepherd v. Ledford, apply Sec. 2.401, Tex. Fam. Code to the

marriage of Tamara Prince and Rodrick Williams, and thus, overrule the decision of the trial court

and the Court of Appeals, and remand the case for trial.

                                               Respectfully submitted,



                                               ______________________________
                                               ART BRENDER
                                               State Bar No. 02954500

                                               JASON C.N. SMITH
                                               State Bar No. 00784999

                                               LAW OFFICES OF ART BRENDER
                                               600 Eighth Avenue
                                               Fort Worth, Texas 76104
                                               (817) 334-0171, telephone
                                               (817) 334–0274, telecopier

                                               ATTORNEYS FOR PETITIONER,
                                               TAMARA PRINCE


                                 CERTIFICATE OF SERVICE

       The undersigned certifies that a copy of the foregoing instrument was served upon the
attorneys of record of all parties to the above cause in accordance with the Texas Rules of Appellate
Procedure, on this the 24th day of March, 2010:


                                               ______________________________
                                               ART BRENDER

                                                 13
                                    APPENDICES



App. 1.   Final Judgment (November 26, 2008)

App. 2.   Charge of the Court and Verdict

App. 3.   Opinion and Judgment

App. 4.   Tex. Fam. Code, § 2.401

App. 5.   Shepherd v. Ledford, 962 S.W.2d 28 (Tex. 1998)

App. 6.   Order Declaring Heirship and Granting Independent Administration (June 22, 2007)

App. 7.   Notice of Marriage




                                            14
APPENDIX 1
                                     NO. 153-22149J-06

 TAMARA LASHAE PRINCE,                      §         IN THE DISTRICT COURT
 INDIVIDUALLY, AND AS NEXT                  §
 FRIEND OF RODRICK WILLIAMS, JR.            §
 AND SHALEAH WILLIAMS, MINORS,              §
 AND SHELIA VANESSA WILLWv1S,               §
 INDlVIDUALLY, AND AS THE                   §
 ADMINISTRATRIX OF THE ESTATE               §
 OF RODRICK WILLIAMS, DECEASED              §
                                            §
 VS.                                        §      TARRANT COUNTY TEXAS
                                            §
BALLOU CONSTRUCTION CO., INC.               §
DAVID 1. FOREMAN,                           §
d/b/a T& D CONTRACTORS;                    .§
and GEORGE WESLEY HAIR, JR.                 §      J53 RD JUDICIAL DISTRICT

                                    FINAL JUDGMENT

       On the 28,h day of July, 2008, the above styled and numbered cause was called to

trial. Plaintiffs, TAMARA LASHAE PRINCE, Individually, and as Next Friend of RODRICK

WILLIAMS, JR. and SHALEAH WILLIAMS, minor children, and SHELIA VANESSA

WILLIAIvlS, Individually, and as the Adminisratrix of the Estate of Rodrick Williams,

Deceased, appeared in person and by and through their attorneys of record. Defendants,

DAVID 1. FOREMAN, D/B/A J & D CONTRACTORS, AND GEORGE WESLEY HAIR,

JR., appeared in person and by and through their attorneys of record.        The parties had

requested a jury panel and from this panel a jury of twelve (12) duly qualified persons were

accepted, impaneled, and sworn.

       Mter presentation of opening remarks,. the evidence, the instructions of the court, and

closing remarks, the case was submitted to the jury. The jury returned its verdict which was

accepted by the Court and entered of record in this cause. Based upon the findings by the

jury, the Court hereby renders Judgment as follows:
                                              1.

        The jury awarded damages to Rodrick Williams,    Jr., a minor, in the amount of Two

Hundred Eighty-Seven Thousand Dollars and No Cents ($287,000.00), to which is added,

by statute, pre-judgment interest in the amount of Three Thousand, Six Hundred Sixty-Nine

Dollars and fifty-Nine Cents ($3,669.59);

       IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff Rodrick

Williams,   Jr., a minor, shall recover from Defendants, David L Foreman, d/b/a J&D

Contractors, and George Wesley Hair,      Jr., damages in the sum of Two Hundred Ninety

Thousand Dollars, Six Hundred Sixty-Nine Dollars and Fifty-Nine Cents ($290,u69.59),

plus post-judgment interest at the rate of five percent (5%) per annum;

                                              2_

       The jury awarded damages to Shaleah Williams, a minor, in the amount of Two

Hundred Eighty-Seven Thousand Dollars and No Cents ($287,000.00), to which is added,

by statute, pre-judgment interest in the amount of Three Thousand, Six Hundred Sixty-Nine

Dollars and Fifty-Nine Cents ($3,669.59);

       IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff Shaleah

Williams, a minor, shall recover from Defendants, David L Foreman, d/b/a J&D Contractors,

and George Wesley Hair, Jr., damages in the sum of Two Hundred Ninety Thousand Dollars,

Six Hundred SiA1:y-Nine Dollars and Fifty-Nine Cents ($290,669.59), plus post-judgment

interest at the rate of five percent (5%) per annum;

                                              3.

       With regard to damages· awarded to Rodrick Williams, Jr., a minor, and Shaleah

Williams, a minor, the parties have agreed that the Defendants shall satisfy that portion of




                                               2
this Judgment by making Periodic Payments to both minors. The damages awarded by the

jury to each minor were received as a result of personal injuries as defined within Section

104(a)(.2) and Section 130, Internal Revenue Code of 1986, as amended. These Periodic

Payments shall be made through the purchase of an annuity contract from New York Life

Insurance Company, together with a qualified assignment, as permitted by the above

referenced sections of the Internal Revenue Code.        No portion of the monies used to

purchase the annuity contract from New York Life Insurance Company will come from

punitive damages, pre-judgment interest or post-judgment interesL After the funding the

annuity, the balance of the funds owed pursuant to. this Judgment, induding any pre-

judgment interest and post-judgment interest is to be placed into the Registry of the Court

until each of the minors reaches age eighteen or until further order of the Court;

       The Court hereby waives the thirty-day waiting period for each minor to receive a

distribution from the Registry of the Court;

                                               4.

       The jury awarded damages to Sheila Vanessa Williams in the amount of Seventy-Five

Thousand Dollars and No Cents ($75,000.00), to which is added, by statute, pre-judgment

interest in the amount of Three Thousand, Nine Hundred Sixty-Seven Dollars and Twelve

Cents ($3,967.1.2);

       IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff Sheila

Vanessa Williams, shall recover from Defendants, David L. Foreman, d/b/a J&O Contractors,

and George Wesley Hair,   Jr., damages   in the sum of Seventy-Eight Thousand, Nine Hundred

Sixty-Seven Dollars and Twelve Cents ($78,967..12), plus post-judgment interest at the rate

of five percent (5%) per annum;




                                               3.
                                              5.

       The jury awarded damages to the Estate of Rodrick   William~,   in the amount of Ten

Thousand, Six Hundred Seventy·Seven Dollars and No Cents ($10,677.00), to which is

added, by statute, pre-judgment interest in the amount of One Thousand, Fifty-Eight Dollars

and Ninety-Two Cents ($1,058.92);

       IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Estate of

Rodrick Williams, by and through the Administratrix of the Estate, Sheila Vanessa Williams,

shall recover from Defendants, David L. Foreman, d/b/a J&D Contractors, and George

Wesley Hair, Jr., damages in the sum of Eleven Thousand, Seven Hundred Thirty-Five

Dollars and Ninety-Two Cents ($1l,735.92), plus post-judgment interest at the rate of five

percent (5%) per annum.

                                               6.

       The jury by its verdict found the Tamara LaShae Prince was not the wife of Rodrick

Williams, deceased;

       IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiff Tamara

LaShae Prince, take nothing from Defendants, David L. Foreman, d/b/a J&D Contractors,

and George Wesley Hair, Jr., by reason of this suit;

                                               7.

       IT IS FURTHER ORDERED, ADJUDGED AND DECREED that taxable court costs

include those costs tendered by the Plaintiffs and approved by the Court in the amount of

Nine Thousand, Ninety-Six Dollars and Eighty-Five Cents ($9,096.85) are to be paid by the

Defendants for which Judgment is heceby rendered;




                                               4
       IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that Plaintiffs

recover from Defendants, David L. Foreman, dlb/a J&D Contractors, and George \'\Tesley

Hair, Jr., the. amount of Nine Thousand, Ninety-Six Dollars and Eighty-Five Cents

($9,096.85) as taxable court costs, plus post~judgment interest at the rate of five percent

(5%) per annum, should the costs remain unpaid;

                                               8.

       Execution shall issue on the damages and p,e-judgment interest awarded to Shelia

Vanessa Williams and to the Estate of Rodrick Williams and for taxable court costs if

satisfaction of this J udgmcnt is not made as required by law;

       This Final Judgment is final and disposes of all claims and all parties and        IS


appealable; and

       Any and all relief, which is not specifically granted herein, is denied.
                              ~
       SIGNED on this the    &.. day of November, 2008.
                                                                          ·-1- .




                                             JUDGE PRESIDING




                                                5
    APPENDIX 2




I
"""1




                                 NO. 153-221491-06

       TAMARA LASHAE PRINCE,                 *       IN THE DISTRICT COURT OF
       Individually and as Next Friend       *
       Of RODRICK WILLIAMS, JR. and          *
       SHALEAH WILLIAMS, Minors, and         *
       SHELIA VANESSA WILLIAMS,              *
       Individually, and as the              *
       Administratrix of the Estate of       *
       RODRICK WILLIAMS, Deceased            *
                                             *
       VS.                                   *       TARR...2lliT COUNTY, TEXAS
                                             *
       DAVID L. FOREMAN d/b/a                *
       J & D CONTP~CTORS, and                *
       GEORGE WESLEY HAIR JR.                *       153 rd JUDICIAL DISTRICT

                                Charge of the Court
        ";l



       LADIES AND GENTLEMEN OF THE JURY;

            This case is submitted to you by asking questions about the
       facts, which you must decide from the evidence you have heard in
       this trial.   You are the sole judges of the credibility of the
       witnesses and the weight to be given their testimony, but in
       matters of law, you must be governed by the instructions in this
       charge. In discharging your responsibility on this jury, you will
       observe all the instructions, which have previously been given you.
       I shall .now give you additionai instructions, which you should
       carefully and strictly follow during your deliberations.

              1.   Do not let bias, prejudice or sympathy play any part in.
                   your deliberations.

              2.   In arriving at your answers,consider only the evidence
                   introduced here under oath and such exhibits, if any, as
                   have been introduced for your consideration under the
                   rulings of the court, that is, what you have seen and
                   heard in this courtroom, together with the law as given
                   you by the court.   In your deliberations, you will not
                   consider or discuss anything that is not represented by
                   the evidence in this case.

              3.   Since every answer that is required by the charge is
                   important, no Juror should state or consider that any
                   required answer is not important.

              4.   You must not decide who you think should win, and then

                                         1
          try to answer the questions accordingly. Simply answer
          the questions, and do not discuss nor concern yourselves
          with the effect of your answers.

     5.   You will not decide the answer to a question by lot or by
          drawing straws, or by any other method of chance. Do not
          return a quotient verdict. A quotient verdict means that
          the jurors agree to abide by the result to be reached by
          adding together each juror's figures and dividing by the
          number of jurors to get an average.       Do not do any
          trading on your answers; that is, one juror should not
          agree to answer a certain question one way if others will
          agree to answer another question another way.

     6.   You may render your verdict upon the vote of ten or more
          members of the jury.   The same ten or more of you must
          agree upon all of the answers made and to the entire'
          verdict.     You will not, therefore, enter into an
          agreement to be bound by a majority or any other vote of
          less than ten jurors.    If the verdict and all of the
          answers therein are reached by unanimous agreement, the
          presiding juror shall sign the verdict for the entire
          jury.   If any juror disagrees as to any answer made by
          the verdict, those jurors who agree to all findings shall
          each sign the verdict.

      These instructions are given you because your conduct is
subj ect to review the same as that of the witnesses, parties,
attorneys and the judge.    If it should be found that you have
disregarded any of these instructionS, it will be jury misconduct
and it may require another trial by another jury; then all of our
time will have been wasted.

      The presiding juror or any other who observes a violation of
the' court's instructions shall immediately warn the one who is
violating the same and caution the juror not to do so again.

     When words are used in this charge in a sense, which varies
from the meaning commonly understood, you are given a proper legal
definition, which you are bound to accept in place of any other
meaning.

      Answer "Yes" or "No" to all questions unless otherwise
instructed. A "Yes" answer must be based on a preponderance of the
evidence. If you do not find that a preponderance of the evidence
supports "Yes" answer, then answer "No."   The term "preponderance
of the evidence" means the greater weight and degree of credible
testimony or evidence introduced before you and admitted in this

                                 2
case.

     Whenever a question requires other than a "Yes" or II No II
answer, your answer must be based on a preponderance of the
evidence.

     A fact may be     established by direct evidence or by
circumstantial evidence or both.. A fact is established by direct
evidence when proved by documentary evidence or by witnesses who
saw the act done or heard the words spoken. A fact is established
by circumstantial evidence when it may be fairly and reasonably
inferred from other facts proved.

      During trial it was permissible for you to take notes.    You
may carry those notes to the jury room for your personal use during
deliberations on the court's charge. You may not share these notes
wi th other jurors.   Your personal recollection of the evidence
takes precedence over any notes you have taken.    A juror may not
rely on the notes of another juror.     If you disagree about the
evidence, the presiding juror may apply to the court and have the
court reporter's notes read to the jury.

      "Negligence" means failure to use ordinary care that is,
failing to do that which a person of ordinary prudence would have
done under the same or similar circumstances or doing that which a
person of ordinary prudence would not have done under the same or
similar circumstances.

     "Ordinary care" means that degree of care that would be used
by a person of ordinary prudence under the same or similar
circumstances.

      "Proximate cause" means that cause which, in a natural and
continuous sequence, produces an event, and without which cause
such event would not have occurred. In order to be a proximate
cause, the act or omission complained of must be such that a person
using ordinary care would have foreseen that the event, or some
similar event, might reasonably result there from. There may be
more than one proximate cause of an event.




                                 3
                          QUESTION 1


     Do you find from a preponderance of the evidence that the
negligence, if any, of George Wesley Hair proximately cause the
occurrence in question?

    Answer Yes or No.

         Yes·




                              4
                            QUESTION 2

     Do you find from· a preponderance of the evidence that Tamara
Prince and Rodrick Williams were married at the time of his death
on October 9, 20067

     You are instructed that a marriage may be either formal or
informal. An informal marriage is established where 1) a man and
woman agree to be married, 2) the man and woman live together after
their agreement to be married, and 3) the man and woman represent
to others that they are married.

     You are instructed that proof of an agreement to be married
may be established by circumstantial evidence or the conduct of the
parties. Proof of cohabitation and representation to others that
the couple are married may constitute circumstantial evidence of an
agreement to be married.

     Answer Yes or No.




                                 5
     If you answered Yes to Question 2,   then answer Question 3.
Otherwise, do not answer Question 3.

                            QUESTION 3

     What sum of money do you find from a preponderance of the
evidence, if paid now in cash, would fairly and reasonably
compensate Tamara Prince for her damages, if any, resulting from
the death of Rodrick Williams?

     Consider the elements of damages listed below and none other.
Consider each element separately. Do not award any sum of money on
any element if you have otherwise, under some other element,
awarded a sum of money for the same loss. That is, do not
compensate twice for the same loss, if any. Do not include interest
on any amount of damages you find.

     Answer separately, in dollars and cents, for damages, if any.
Do not reduce the amounts, if any, in your answers because of the
negligence, if any, of Rodrick Williams.

          a.   Pecuniary loss sustained in the past.

               "Pecuniary loss" means the loss of the care,
          maintenance, support, services, advice, counsel, and
          reasonable contributions of a pecuniary value that Tamara
          Prince, in reasonable probability, would have received
          from Rodrick Williams had he lived.

          Answer:

          b.   Pecuniary loss ·that, in reasonable· probability,
               will be sustained in the future.

          Answer:

          c.   Loss of companionship and society sustained in the
               past.

                "Loss of companionship and society" means the loss
          of the positive benefits flowing from the love, comfort,
          companionship,   and society that Tamara Prince,      in
          reasonable probability, would have received from Rodrick
          Williams had he lived.


                                 6
          Answer:

          d.   Loss   of  companionship and  society that,   in
               reasonable probability, will be sustained in the
               future.

          Answer:

          e.   Mental anguish sustained in the past.

               "Mental anguish" means the emotional pain, torment,
          and suffering experienced by Tamara Prince because of the
          death of Rodrick Williams.

          Answer:

          f.   Mental anguish that, in reasonable      probability,
               will be sustained in the future.

          Answer:

      In determining damages for elements c, d, e, and f, you may
consider the relationship between Tamara Prince and Rodrick
Williams, their living arrangements, any extended absences from one
another, the harmony of their family relations, and their common
interests and activities.




                                 7
                            QUESTION 4

     What sum of money do you find from a preponderance of the
evidence, if paid now in cash, would fairly and reasonably
compensate Rodrick Williams, Jr. for his damages, if any, resulting
from the death of Rodrick Williams?

     Consider the elements of damages listed below and none other.
Consider each element separately. Do not award any sum of money on
any element if you have otherwise, urider some other element,
awarded a sum of money for the same loss. That is, do not
compensate twice for the same loss, if any. Do not include interest
on any amount of damages you find.

     Answer separately, in dollars and cents, for damages, if any.
Do not reduce the amounts, if any, in your answers because of the
negligence, if any, of Rodrick Williams.

          a.   Pecuniary loss sustained in the past.

               "pecuniary loss" means the loss of the care,
          maintenance, support, services, advice, counsel, and
          reasonable contributions. of a pecuniary value that
          Rodrick Williams, Jr., in reasonable probability, would
          have received from Rodrick Williams had he lived.

          Answer:

          b.   Pecuniary loss that, in reasonable probability,
               Rodrick Williams, Jr. will sustain in the future.



          c.   Loss of companionship and society sustained in the
               past.

                "Loss of companionship and society" means the loss
          of the positive benefits flowing from the love, comfort,
          companionship, and society that Rodrick Williams, Jr., in
          reasonable probability, would have received from Rodrick
          Williams had he lived.

          Answer:

          d.   Loss   of   companionship   and   society   that,   in

                                 8
               reasonable probability, Rodrick Williams, Jr. will
               sustain in the future.

          Answer:

          e.   Mental anguish sustained in the past.

               "Mental anguish" means the emotional pain, torment,
          and suffering experienced by Rodrick Williams, Jr.
          because of the death of Rodrick Williams.

          Answer:

          f.   Mental anguish that, in reasonable probability,
               Rodrick Williams, Jr. will sustain in the future.

          Answer:

      In determining damages for elements c, d, e, and f, you may
consider the relationship between Rodrick Williams, Jr. and Rodrick
Williams, their living arrangements, any extended absences from one
another, the harmony of their family relations,and their common
interests and activities.




                                 9
                            QUESTION 5

     What sum of money do you find from a preponderance of the
evidence,  if paid now in cash, would fairly and reasonably
compensate Shaleah Williams for her damages, if any, resulting from
the death of Rodrick Williams?

     Consider the elements of damages listed below and none other.
Consider each element separately. Do not award any sum of money on
any element if you have otherwise, under some other element,
awarded a sum of money for the same loss. That is, do not
compensate twice for the same loss, if any. Do not include interest
on any amount of damages you find.

     Answer separately, in dollars and cents, for damages, if any.
Do not reduce the amounts, if any, in your answers because of the
negligence, if any, of Rodrick Williams.

          a.    Pecuniary loss sustained in the past.

               "pecuniary loss" means the loss of the care,
          maintenance, support, services, advice, counsel, and
          reasonable contributions of a pecuniary value that
          Shaleah Williams, in reasonable probability, would have
          received from Rodrick Williams had he lived.



          b.    Pecuniary loss that, in reasonable probability,
                Shaleah Williams will sustain in the future.

          Answer:

          c.    Loss of companionship and society sustained in the
                past.

                "Loss of companionship and society" means the loss
          of the positive benefits flowing from the love, comfort,
          companionship, and society that Shaleah Williams, in
          reasonable probability, would have received from Rodrick
          Williams had he lived.

          lLBswer:

          d.    Loss   of   companionship   and   society   that,   in

                                  10
               reasonable probability,    Shaleah   Williams   will
               sustain in the future.

          Answer:

          e.   Mental anguish sustained in the past.

               "Mental anguish" means the emotional pain, torment,
          and suffering experienced by Shaleah Williams because of
          the death of Rodrick Williams.

          Answer:

          f.   Mental anguish that, in reasonable probability,
               Shaleah Williams will sustain in the future.

          Answer:

      In determining damages for elements c, d, e, and f, you may
consider the relationship between Shaleah Williams and Rodrick
Williams, their living arrangements, any extended absences from one
another, the harmony of their family relations, and their common
interests and activities.




                                11
                            QUESTION 6

     What sum of money do you find from a preponderance of the
evidence, if paid now in cash, would fairly and reasonably
compensate Shelia Williams for her damages, if any, resulting from
the death of Rodrick Williams?

     Consider the elements of damages listed below and none other.
Consider each element separately. Do not award any sum of money on
any element if you have otherwise, under some other element,
awarded a sum of money for the same loss. That is, do not
compensate twice for the same loss, if any. Do not include interest
on any amount of damages you find.

     Answer separately, in dollars and cents, for damages, if any.
Do not reduce the amounts, if any, in your answers because of the
negligence, if any, of Rodrick Williams.

          a.    Loss of companionship and society sustained in the
                past by Shelia Williams.

                Answer:

                "Loss of companionship and society" means the loss
          of the positive benefits flowing from the love, comfort,
          companionship, and society that Shelia Williams, in
          reasonable probability, would have received from Rodrick
          Williams had he lived.

          b.    Loss· of   companionship    and society that, in
                reasonable probability, will be sustained in the
                future by Shelia Williams .

                . Answer:

          -c.   Mental anguish sustained   in   the   past   by Shelia
                Williams.

                Ans-wer:

               "Mental anguish" means the emotional pain, torment,
          and suffering experienced by Shelia Williams because of
          the death of Rodrick Williams.


                                12
          d.   Mental anguish that, in reasonable probability,
               will be sustained in the future by Shelia Williams.

               Answer:

      In determining damages for elements a, b, c and d, you may
consider the relationship between Rodrick Williams and his Shelia
Williams, their living arrangements, any extended absences from one
another, the harmony of their family relations, and their common
interests and activities.




                                13
                              QUESTION 7

     What sum    of money do you find from a preponderance of the
evidence, if     paid now in cash, would fairly and reasonably
compensate the   Estate of Rodrick Williams for its damages, if any,
resulting from   the death of Rodrick Williams?

     Consider the elements of damages listed below and none other.
Consider each element separately. Do not award any sum of money on
any element if you have otherwise, under some other element,
awarded a sum of money for the same loss. That is, do not
compensate twice for the same loss, if any. Do not include interest
on any amount of damages you find.

     Answer separately, in dollars and cents, for damages, if any.
Do not reduce the amounts, if any, in your answers because of the
negligence, if any, of Rodrick Williams.

          a.     Medical expenses.

                 Answer:

               Medical expenses means the reasonable expense of the
          necessary medical and hospital care received by Rodrick
          Williams for treatment of injuries sustained by him as a
          result of the occurrence in question.

          b.     Funeral and burial expenses.

                 Answer:    7.02'1
                             ,
               Funeral and burial expenses means the reasonable
          amount of expenses for funeral and burial for Rodrick
          Williams reasonably suitable to his station in life.




                                     14
     Answer the following question regarding George Wesley Hair
only if you unanimously answered Yes to Question 1. Otherwise, do
not answer the following question regarding George Wesley Hair.

     You are instructed that,     in order to answer "Yes" to the
following question, your answer   must be unanimous. You may answer
"No" to the following question     only upon a vote of ten or more
jurors. Otherwise, you must not    answer the following question.

                            QUESTION 8

     Do you find by clear and convincing evidence that the harm to
Rodrick Williams resulted from gross negligence?

          "Clear and convincing evidence" means the measure or
     degree of proof that produces a firm belief or conviction of
     the truth of the allegations sought to be established.

         "Gross negligence" means an act or omission by George
    Wesley Hair,

          (a)  which when viewed objectively from the standpoint of
          George Wesley Hair at the time of its occurrence involves
          an extreme degree of risk, considering the probability
          and magnitude of the potential harm to others; and

          (b)  of which George Wesley Hair has actual, subjective
          awareness of the risk involved, but nevertheless proceeds
          with conscious indifference to the rights, safety, or
          welfare of others.

    Answer "Yes" or "No."

     Answer:




                                  15
     After you retire to the jury room, you will select your own
presiding juror.  The first thing the presiding juror will do is to
have this complete charge read aloud and then you will deliberate
upon your answers to the ques.tions asked.

     It is. the duty of the presiding juror:

     1.   to preside during your deliberations,
     2.   to see that your deliberations are conducted in an
          orderly manner and in accordance with the instructions in
          this charge,
     3.   to write out and hand to the bailiff any communications
          concerning the case that you desire to have delivered to
          the judge,
     4.   to vote on the questions,
     5.   to write your answers to the questions in the spaces
          provided, and
     6.   to certify to your verdict in the space provided for the
          presiding juror's signature or to obtain the signatures
          of all the jurors who agree with the verdict if your
          verdict is. less than unanimous..

     You should not discuss the case with anyone, not even with
other members of the jury, unless all of you are present and
assembled in the Jury room.  Should anyone attempt to talk to you
about the case before the verdict is returned, whether at the
courthouse, at your home, or elsewhere, please inform the judge of
this fact.

     When you have answered all the questions you are required to
answer under the instructions of the judge and your presiding Juror
has placed your answers in the spaces provided and signed the
verdict as. presiding Juror or obtained the signatures, you will
inform the bailiff at the door of the jury room that you have
reached a verdict, and then you will return into court with your
verdict.




                                         KEN CURRY
                                         JUDGE PRESIDI




                                16
                                  CERTIFICATE

        We, the jury, have answered the above and foregoing questions
   as herein indicated, and herewith return same into court as our
   verdict.

        I certify that     the    jury    was   unanimous        in       answering   the
   following questions:

        Answer "All" or list questions:         /) Q/ *~ If(:,l?~ 5-:f10c-P£
                                              ~.   98   ~ ... / '7-#13·
                                     ~~g
                                     Presiding Juror


                                         Vi Grog    JI1 ( 13&l)iLL. d
                                     Printed Name of Presiding Juror
                                                                             S'le .


   (If the answers to some questions were not unanimous, the jurors
   who agreed to those answers must certify as follows:) To be signed
   by those rendering the verdict if not unanimous.)

   We agree to the answers to the following questions:

   List Questions:   if r) fL',,",   tA Bf!j).
   Jurors' Signatures                Jurors' Printed Names




 /kd4JW~
~;ay(/m!l~
 Jh oJ UYL :!;W{Jj 111 tv! :h,~
   ~~JJJq


                                         17
tJ\.0\.{'~   C S ester
10\tr=\ 0a     Rono1dl.c (




18
APPENDIX 3
                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-08-495-CV


TAMARA LASHAE PRINCE                                             APPELLANT

                                     V.
DAVID L. FOREMAN D/B/A
J&D CONTRACTORS AND
GEORGE WESLEY HAIR, JR.                                           APPELLEES




       FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY




                       MEMORANDUM OPINION'



      A jury found that Appellant Tamara Lashae Prince was not the spouse of

Rodrick Williams, Jr., and accordingly, the trial court signed a judgment that

Prince take nothing in the suit she brought against Appellees David'L. Foreman

d/b/a J&D Contractors and George Wesley Hair, Jr. for the wrongful death of

                               .,.


     'See Tex. R. App. P. 47.4.
     Rodrick Williams, Jr.2 In three issues, Prince argues that the trial court erred by

     (1) entering judgment on the jury verdict that she was not the common law

     wife of Williams because a probate court had signed a judgment that she was

     legally married to Williams, (2) instructing the jury that the probate court order

     was not binding, and (3) failing to grant a new trial. We will affirm.

           The facts surrounding the motor vehicle accident that resulted in the

     death of Williams are not pertinent to our disposition of Prince's issues, so we'

     omit a recitation of those facts.     Likewise, Prince does not challenge the

     sufficiency of the evidence to support the jury's finding in question number tWo

     of the court's charge that Prince and Williams were not married at the time of

     Williams's death. Accordingly, that factual finding is binding on this court. See

     Carbona v. CH Med., Inc., 266 S.W.3d675, 687 (Tex. App.-Dallas 2008, no

     pet.) (holding that "[u)nchallenged jury findings of fact are binding on the

     appellate court"); Morrell v. Finke, 184 S.W.3d 257,285 n.29 (Tex. App.- Fort

     Worth 2005, pet. denied) (same). We therefore also omit a recitation of the
                                                                     .,;   ..

     evidence introduced by both sides on the issue of whether Prince and Williams

     were common law married at the time of his death.




            2The jury returned a verdict favorable to Rodrick Williams, Jr.'s two
     children, the trial court signed a judgment on the jurY verdict for the children,
     and Appellees have satisfied that judgment .


 ~
                                             2
..
      In her first issue, Prince argues that the trial court erred by entering

judgment on the jury's finding that she was not married to Williams because the

probate court had entered an order finding that she was married to Williams.

In her second issue, Prince contends that the trial court erred by instructing the

jury that the probate court order-which was introduced into evidence during

the wrongful death trial- was not binding.         By these two issues and her

accompanying.argumerits, Prince"essentially argues that the probate court order

finding that she was married to Williams was binding on the trial court and on

the jury.

      In a case almost factually identical to this one, the Fourteenth Court of

Appeals rejected the argument that Prince makes here. See Buster v. Metro.

Transit Auth., 835 S.W ..2d 236, 237-38 (Tex. App.-Houston [14th Dist.]

1992, no writ). In Buster, the Fourteenth Court explained,

               In order to preclude litigation of the common law marriage
       issue [in the wrongful death action based on a prior probate court
       order). appellant had the burden of proving: (1) the facts sought
       to be litigated in the second action were fully and fairly litigated in
       the prior action; (2) those facts were essential to the judgment in
       the first action; and (3) the parties were cast as adversaries in the
     " first action. Appellant failed to prove any of these elements. First,
       there is nothing in the record to show that the common law
       marriage issue was' fully and fairly litigated in the probate action.
       Secondly, since appellee did not participate in the probate
       proceedings, it was appellant's burden to show that appellee's
       interest Was represented by a party in the probate action. Only
       appellant and Barbara Overhiser were mentioned in the probate

                                         3 ;"
       court's judgment and the record is insufficient to prove that
       appellee's interest was represented by either of the parties.

             Furthermore, the classes of persons entitled to sue under the
      Wrongful Death Act are to be determined in the wrongful death
      case and not in the probate action. Wrongful death benefits attach
      to those classes of persons identified by the Act as opposed to
      persons identified by the Texas Probate Code as heirs of the estate.
      While the Texas Probate Code sets forth a comprehensive system
      for the settlement, partition and distribution of property incident to
      an estate, it did not intend to provide an appropriate means to
      identify classes of persons entitled to sue under the Wrongful
      Death Act. Therefore, appellant's status as Kathy Anne Espy's
      spouse in the probate action is limited to the settlement, partition
      and distribution of property incident to her estate.

Id.; see also Phillips v. Dow Chem. Co:, 186 S.W.3d 121, 128-29 (Tex.

App.-Houston [1st Dist.] 2005, no pet.) (holding in wrongful death suit that

"[a]lthough the record shows that the probate court declared that Phillips is

Stewart's husband and heir, neither the trial court nor appellees is bound by

that determination.    Collateral estoppel principles did not apply to preclude

appellees' challenge to Phillips's standing, because no appellee was a party to

the probate-court proceeding").

      The principles of collateral estoppel· do not apply here to the probate

court's order that Prince was the common law spouse of Williams. Prince failed·

to establish that the facts of her alleged common law marriage were fully and

fairly litigated in the probate court orthat the parties (I.e., Appellees here) were

cast as her adversaries in the probate action.       In tact, Appellees were not

                                         4
parties to the probate court proceeding. The record before us fails to establish

that Appellees were collaterally estopped from litigating Prince's standing to

recover as a surviving spouse under the wrongful death statute.

       Prince nonetheless argues that the probate court order was determinative

on the issue of whether she was common law married to Williams at the time

of his death based on principles enunciated in Shepherd v. Ledford, 962 S.W.2d

28, 30...:32 (Tex. 1998), and Na1la v. Reddy P'ship/Quai/ Chase, 988 S.W.2d

346,350 (Tex. App.-Houston [1st Dist.] 1999, no pet.). In both Shepherd

and Nava, however, the courts did not hold that a probate court order declaring

that the deceased had a common law marriage was conclusive in a subsequent

wrongful death action; the courts held that the family code provision at issue

(then section 1.91(b), noW section 2.401) "simply estops a person from

claiming that he or she is informally married unless he or she starts a

proceeding [which may be a wrongful death action] to establish an informal

marriage" within the period prescribed by the provision (one year under 1.91

and two years under 2.401). Shepherd, 962 S.W.2d at 32; Nava, 988 S.W.2d

at 350; see also Tex. Fam. Code Ann. § 2.401 (b) (Vernon . 2006) (providing

that proceeding to establish common law marriage must be commenced within

two   y~ars   of date on which parties separated and ceased living together or it

is rebuttably presumed that they were not married).        Thus, because Prince

                                         5
properly commenced her probate proceeding within family code section 2.401 's

two-year time requirement for establishing an informal marriage, she was not

estopped from claiming in her subsequent wrongful death action that she was

common law married to Williams. Shepherd, 962 S.W.2d at 32; Nava, 988

S. W.2d at 350. The fact that Prince is not estopped from asserting that she

was common law married to Williams at the time of his death does not mean

that Appellees are estopped -from asserting the contrary bT'that Prfnoe'-s

common law marriage is conclusively established for purposes of her wrongful

death suit. Buster, 835 S.W.2d at 237-38; see also Shepherd, 962 S.W.2d

at 32; Nava, 988 S.W.2d at 350. Accordingly, we overrule Prince's first issue.

      For the same reasons we overruled Prince's first issue, we overrule her

second issue. That is, because Appellees were not collaterally estopped from

litigating the issue of Prince's common law marriage to Williams, the trial court

did not abuse its broad discretion by instructing the jury that the prob.ate court

order was not binding on the issue of Prince's alleged common law marriage to

Williams. To the contrary, the trial court's instruction assisted the jury, was a

correct statement of the law (as set forth above), and was supported by the




                                        6
pleadi ngs3 and the evidence. 4 See Tex. R. Civ. P. 277; Hyundai Motor Co. v.

Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999) (explaining that as long as the

charge is legally correct, appellate court reviews trial court's decision to submit

or not submit jury instructions under abuse of discretion standard).

      Because we have overruled Prince's first and second issues essentially

arguing that the probate court conclusively established her common law

marriage, we need not·addressher third issue concerning the trial Gourt' s failure

to grant a new trial. In light of our disposition of Prince's first two issues and

the jury's unchallenged factual finding that Prince was not the common law

spouse of Williams, Prince is not entitled to a new trial in any event. See Tex.

R. App. 47.1 (requiring appellate court to address only issues necessary to

disposition of appeal).

      We therefore affirm the trial court's judgment.




                                                   SUE WALKER
                                                   JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: January 7, 2010



      3Appellees filed a verified denial pursuant to Texas Rule of Civil Procedure
93(2) denying that Prince was the surviving spouse of Williams.

        4The parties litigated the issue of Prince's alleged common law marriage
.during trial; both sides introduced evidence in support of their respective
 positions ..

                                         7
APPENDIX 4
§ 2.401                                                  THE MARRIAGE RELATIONSHIP
                                                                                              Title 1
            SUBCHAPTER E. MARRIAGE WITHOUT FORMALITIES

§ 2.401. Proof ofInformal Marriage
  (a) In a judicial, administrative, or other proceeding, the marriage of a man
and woman may be proved by evidence that:
     (I) a declaration of their marriage has been signed as provided by this
  subchapter; or
     (2) the man and woman agreed to be married and after the agreement they
  lived together in this state as husband and wife and there represented to
  others that they were married.
  (b) If a proceeding in which a marriage is to be proved as provided by
Subsection (a)(2) is not commenced before the second anniversary of the date
on which the parties separated and ceased living together, it is rebuttably
presumed that the parties did not enter into an agreement to be married.
   (c) A person under 18 years of age may not:
      (J) be a party to an informal marriage; or
      (2) execute a declaration of informal marriage under Section 2.402.
  (d) A person may not be a party to an informal marriage or execute a
declaration of an informal marriage if the person is presently married to a
person who is not the other party to the informal marriage or declaration of an
informal marriage, as applicable.
Added by Acts 1997, 75th Leg.. ch. 7, § 1. eff. April 17, 1997. Amended by Acts 1997,
JSth Leg., eh. 1362, § I, eff. Sept. 1, 1997; Acts 2005, 79th Leg., eh. 268, § 4.12, eff.
 Sept. L 2005.

                                Historical and Statutory Notes
   Acts 1997, 75th Leg., ch. 1362 added sub sec.       S.B. No. 334 was enacted as Acts 1997, 75th
(c).                                                 Leg., ch. 7.
   Sections "5 and 6 of Acts 1997, 75th Leg., ch.      Acts 2005, 79th Leg., ch. 268 added subsec.
 1362 provide:                                       (d).
   "Sec. 5. This Act takes effect only if S.B.         Section 4.22 of Acts 2005, 79th Leg., ch. 268
334, 75th Legislature, Regular Session, becomes      provides:
law. If that legislation does not become law,          "Subsection (d), Section 2.401. Family Code,
this Act has no effect.                              as added by this article, applies to an informal
                                                     marriage or a declaration of an informal mar-
   "Sec. 6. The change in law made by this Act,
                                                     riage regardless of when the informal marriage
as it relates to a suit brought to prove the
                                                     was entered into or the declaration was execut-
existence of an informal marriage, applies only      ed."
to a suit commenced on or after the effective
date [Sept. I, 1997] of this Act. A suit com-        Prior Laws:
menced before that date is governed by the law           Acts 1969, 61st Leg., p. 2707, ch. 888, § 1.
in effect on the date the suit was filed, and the        Acts 1989, 71st Leg., ch. 369, § 9.
former law is continued in effect for that pur-          Acts 1995, 74th Leg., ch. 891, § 1.
pose."                                                   V.T.C.A., Family Code § 1.91.

                                        Cross ReFerences
Presumption of validity of marriage, see V.T.C.A., Family Code § 1.101.
Statute of frauds, see V.T.C.A., Bus. & C. § 26.01.
Wrongful death actions, admissibility of evidence of common-law marriage, see V.T.C.A., Civil
      Practice & Remedies Code § 71.005.
                                                    74
THE MARRIAGE RELATIONSHIP                                                                   § 2.401
Ch.2
                          Law Review and Journal Commentaries
 Annual survey of Texas law: Family law-                 Use of the Texas marriage license statutes as
Husband and wife. Joseph W. McKnight, 34               a child support collection device does not vio~
Sw.L.J. 115 (1980); 35 Sw.LJ. 93 (1981); 36            late equal protection. R. Michael Rogers, 48
Sw.L.J. 97 (1982); 52 SMU L.Rev. 1143 (1999).          Baylor L.Rev. 1153 (1996).
  Common law marriage under the Family
Code. 8 Hous.L.Rev. 106 (1970).

                                      Library References
  Marriage (!?20 to 23.
  Westlaw Topic No. 253.
  CJ.S. Marriage §§ 10,21 to 24, 30,84.

                                     Research References
ALR Library                                              Texas Jurisprudence Pleading & Practice
 82 ALR 2nd 688, Common-Law Marriage Be-                   Forms 2d Ed -§ 98:2, Common Law Mar-
   tween Parties Previously Divorced.                      riage.
 133 ALR 758, Validity of Common-Law Mar-                Texas Jurisprudence Pleading & Practice
   riage in American J~risdictions.                        Forms 2d Ed § 137:1, Introductory Com-
                                                           ments.
Encyclopedias                                            Texas Jurisprudence Pleading & Practice
 36 Am. Jur. Proof of Facts 2d 441, Validity of            Forms 2d ,Ed § 137:3, Petition -- for Declar-
   Marriage.                                               atory Judgment _. to -Establish Validity of
 TX lur. 3d Appellate Review § 604, Credibili-             Informal Marriage.
   ty of Witnesses; Weight of Evidence.                  Texas Jurisprudence Pleading & Practice
 TXJur. 3d Evidence § 874, Sufficiency.                    Forms 2d Ed § 98:49, Petition -- Allegation
 TX Jur. 3d Family Law § 35, Generally; Va-                -- Existence of Common Law Marriage.
   lidity of Common-Law Marriage.         .              16 West's Texas Forms § 1.1, Legal Sum-
 TX Jur. 3d Family Law § 36, General Re-                   mary.
   quirements of Common-Law Marriage; Du-                16 West's Texas Forms § 1.4, Petition of Un-
   ration.                                                 derage Applicant for Court Pemlission to
 TX Jur. 3d Family Law § 43, Limitation of                 Many.
   Action to Prove Marriage; Rebuttable Pre-             16 West's Texas Forms § 1.11, Declaration
   sumption.                                               and Registration of Informal Marriage.
 TX Jur. 3d Family Law § 45, Establishing                17 West's Texas Forms § 5.5, Petition for
   Agreement to be Married.                                Annulment by Third Party.
 TX Jur. 3d Family Law § 46, Establishing                16A West's Texas Forms § 3.62, Questions --
   Agreement to be Married -- Requirement of               Existence of Informal' Marriage.
   Direct or Circumstantial Evidence and Le-
   gal and Factual Sufficiency.                        Treatises and Practice Aids
 TX Jur. 3d Family Law § 47, Establishing                Texas Family Law Service § 40: I, Nature.
   Cohabitation.                                         Texas Family Law Service § 40:2, Capacity to
 TX Jur. 3d Family Law § 48, Establishing                  Enter Into Marriage Agreement.
   Representation to Others or Holding Each              Texas Family Law Service § 40:3, Agreement
   Other Out Publicly as Married.                          to be Husband and Wife.
 TX"Jur. 3d Family Law § 50, Generally; Proof            Texas Family Law Service § 40:5, Holding
   of Identity and Age.                 -                  Out as Husband and Wife.
 TX Jur. 3d Family Law § 51, Execution and               Texas Family Law Service § 41:3, Applicabili-
   Recording of Declaration of Informal Mar-               ty of Doctrine.
   riage by County Clerk.                                Texas Family Law Service § 40:12, Testimo~
 TX Jur. 3d Family Law § 53, Violation by                  nial Privilege.
   County Clerk.                                         Texas Family Law Service § 40: 13, Foreign
 TX Jur. 3d Family Lav.' § 887, Generally; Ef-          . Informal Marriages.
   fect of Removal of Disabilities.                      Texas Family Law Service § 40:20, Burden of
 TX Jur. 3d Summary Judgment § 41, Affida-                 PI:oof; Presumptions.
   vits - Requirement of Factual Statements.             Texas Family Law Service § 40:2 I, Evidence.
                                                         Texas Family Law Service § 40:22, Agree-
Forms                                                      ment to be Married.
 Texas Forms Legal and Business § 33:1, In-              Texas Family Law Service § 40:24, Represen-
   troduction.                                             tation to Others.
                                                  75
§ 2.401                                               THE MARRIAGE RELATIONSHIP
                                                                                              Title 1
  Texas Family Law Service § 40:25, Declara-          Beyer, 9 Tex. Prac. Series § 3.1. Community
    tion of lnfonnal Marriage.                          Property-Definition.
  Texas Family Law Service § 40:26, Recorda-          Beyer, 9 Tex. Prac. Series § 6.8, Historical
    tion of Declaration.                                Background-Legitimation-Subsequent Mar-
  Texas Family Law Service § 41:14, Require-            riage.
    ments for Validation of Marriage Based on         Beyer, 9 Tex. Prac. Series § 15.3, Marital
    Common Law Elements.                                Status.
  Texas Family Law Service § 42:13, Underage.         Elliott, I I Tex. Prac. Series § 20.3, Check List
  Texas -Family Law Service § 42:43, Overview.          of Information to be Obtained from Client.
  Texas Family Law Service § 48:28, -Common
                                                      Elliott, 11 Tex. Prac. Series § 18.48, Trial of
    Law Marriage.
  Texas Family Law Service § 49:35, Marital             the Divorce Case -- Necessary Questions.
    Status.                                           Koons. 33 Tex. Prac. Series § 2.2, Require-
  Texas Family Law Service § 53:50, Intestate           ments.
    Heirs.                                            Koons, 33 Tex. Prac. Series § 2.3, Statute of
  Goode, Wellborn & Shadot. 1 Tex. Prac. Ser-           Limitations Rebuttable Presumption
    ies § '504.2, Rule 504: Who is a Spouse;            "Common Law" Divorce.
    How is the Issue to be Resolved; by the           Koons, 33 Tex. Prac. Series § 2.5, Declaration
    Judge or the Jury.                   .              and Registration -- Effect When Parties
  Lange and Leopold, 4 Tex. Prac. Series                Separate.
    § 20.2, Validity of Common Law or Infor-          Koons, 33 Tex. Prac. Series § 5.11. Grounds
    mal Marriage.                                       -- Underage.

                                Westlaw Electronic Research
  See Westlaw Electronic Research Guide following the Preface.

                                     Notes of Decisions
In general 1                                      Implied or inferred. agreement 6
Admissibility of evidence, agreement 10           Instructions, generaHy 46
Admissibility of evidence, generally 43           Instructions, representation or holding out to
Admissibility of evidence, representation or        others 17
   holding out to others 18                       Intent 21
Age requirements 27                               Jury questions 45
Agreement 5-11                                    Limitations 26
     In general 5                                 Marital heirship rights 35
     Admissibility of evidence 10                 Present intent, agreement 8
     Conditional 7                                Presumptions 36-39
     Implied or inferred 6                             In general 36
     Present intent 8                                 Ceremonial marriage 37
     Prior marriage 9                                  Illicit origins 39
     Sufficiency of evidence 11                        Prior marriage 38
Burden of proof 40                                Prior marriage, agreement 9
Capacity to marry 23                              Prior marriage. presumptions 38
Ceremonial marriage, presumptions 37              Prior marriage, representation or holding out
Circumstantial evidence 41                          to others 16
Cohabitation 12, 13                               Prior marriages, generally 25
     In general 12                                Putative marriage or spouse 33
     Sufficiency of evidence 13                   Recognition by others 22
Conditional, agreement 7                          ~epresentation or holding out to others 14-19
Conduct or actions of parties, generally 24            In general 14
Conduct or actions, representation or holding          Admissibility of evidence 18
   out to others 15                                    Conduct or actions IS
Conflicts of law 3                                     Instructions 17
Consent 20                                             Prior marriage 16
Contacts with state 29                                 Sufficiency of evidence 19
Effect of common law marriage 31                  Review 48
Elements, generally 4                             Standard of proof 42
Estoppel 30                                       Sufficiency of evidence, agreement 11
Findings 47                                       Sufficiency of evidence, cohabitation 13
Husband and wife privilege 34                     Sufficiency of evidence, generally 44
Illicit origins, presumptions 39                  Sufficiency of evidence, representation or hold-
Impediments 28                                      ing out to others 19
                                                 76
THE MARRIAGE RELATIONSHIP                                                                       § 2.401
Ch. 2                                                                                               Note 3
Tennination 32                                           dy Partnership/Quail Chase (App. 1 Dis!. 1999)
Validity 2                                               988 S.W.2d 346. Death ~ 31(6)

                                                         2. Validity
  I. In general                                             Statutory one-year limitations period for
     Although common·law marriage may be                 proving common-law marriage, following termi-
  proved by conduct of parties in living together        nation of relationship, does not violate princi-
 and representing to others that they are mar~           ples of equal protection insofar as common-law
 ried, from which agreement to marI}' may be             spouses are treated differently from ceremonial-
 inferred, still each case of claimed common-law         ly married spouses; limitations provision is rea-
 marriage must be determined upon its own                sonably related to State's interest in diligently
 facts. Roach v. Roach (App. 7 Dis1. 1984) 672           processing claims involving existence of infor-
 S.W.2d '524. Marriage ~ 51                              mal marriages and its applicable rights and
    Former Family Code proviSion requiring ele-          benefits. Dannelley v. Almond as Next Friend
 ments of informal marriage to be proven within          of Almond (App. 14 Di,!. 1992) 827 S.W.2d 582.
 one year from time of relationship's end did not        Constitutional Law €=> 249(3); Limitation Of
 conflict with, and was not supplanted by, Medi-         Actions €=> 4(2)
 cal Liability and Insurance Improvement Act's              Statutory one-year limitations period for
 (MUlA) two-year statute of limitations govern-          proving common-law marriage, following termi-
ing wrongful death action based on medical               nation of relationship, does not violate open
malpractice; purported wife could have filed             courts provision of Texas Constitution. Dannel-
proceeding to declare heirship in order to estab·        ley v. Almond as Next Friend of Almond (App.
!ish existence of her common-law marriage                14 Dist. 1992) 827 S.W.2d 582. Constitutional
within one year of purported husband's death             Law €=> 328; Limitation Of Actions        '*'"
                                                                                                    4(2)
and then later filed medical malpractice action
within its 2-year limitations period. Shepherd              Equal protection challenge to differing treat-
v. Ledford (Sup. 1998) 962 S.W.2d 28, rehear-            ment afforded common~law marriages under
ing overruled. Death e=- 38                              statute of limitations did not involve fundamen-
                                                         tal right or suspect class, such that classification
    Stipulation that purported spouses had valid         would be subject to heightened scrutiny. Dan-
common·law marriage at time of husband's                 nelley v. Almond as Next Friend of Almond
death was signed by. counsel for both parties            (App. 14 Dist. 1992) 827 S.W.2d 582. Constitu-
and was accepted by trial court and, thus, be·           tional Law €=> 249(3)
came conclusive on existence of marriage and
thereby relieved wife of burden to prove com-            3.  Conflicts of law
mon-law marriage in order to establish standing
to bring wrongful death action based on medi·              Law of another state relative to common-law
cal malpractice, even though wife othervlise             marriage being presumed the same as in Texas,
would have been barred from establishing com-            proof of fact of living together in another slate
mon-law marriage by former provision of family           for six years without proving required agree-
code requiring informal marriage to be proven            ment was insufficient to establish a common-
witJIin one year from end of relationship.               law marriage in such other state. Bell v. South-
Shepherd v. Ledford (Sup. 1998) 962 S.W.2d               ern Cas. Co. (Civ.App. 1924) 267 S.W. 531.
28, rehearing overruled. Stipulations,*", 18(7)          error refused. Marriage €=> 20(1)
    Former Family Code provision requiring ele-            Where parties entered into common-law mar-
ments of informal marriage to be proven within           riage in state where it was not recognized, sub-
one year from time of relationship's end does            sequently left that state and moved to Texas
not conflict with or supplant two-year statute of        where they entered into new common-law mar-
limitations governing wrongful death actions;            riage agreement, new agreement was valid.
purported spouse could file other proceeding to          O·Benar v. O·Benar (Civ.App. 1966) 410 S.W.2d
establish existence of common-law marriage               214, error dismissed. Marriage€=> 13
within one year of purported spouse's death and            "Concubinage" relationship, recognized by
then later file wrongful death action within             Mexican law, 'in which parties agreed in Mexico
2-year limitations period. Shepherd v. Ledford           to live together as husband and wife, but which
(Sup. 1998) 962 S.W.2d 28, rehearing over-               could be terminated by either without other's
ruled. Death e=> 38                                      consent and without legal action, could become
    To obtain standing to bring wrongful death           common-law marriage following their subse-
action as decedent's common-law spouse, al-              quent removal to Texas, where parties were
leged widow was not required to file her wrong-          legally competent to marry, if they agreed in
ful death action within one year of decedent's           Texas ·to such marriage. Flores Gonzalez v.
death; rather, alleged widow could use other             Viuda de Gonzalez (Civ.App. 1971) 466 S.W.2d
statutorily-pennitted procedures. Nava v. Red-           839, ref. n.r.e. Marriage €=> 22
                                                    77
    § 2.401                                                THE MARRIAGE RELATIONSHIP
    Note 3                                                                                          Title I
       Evidence that claimant, asserting right to         to marry, presently to become husband and
    intestate share of decedent's estate, and dece·       wife, and an actual living together as such.
    dent who had lived together in Illinois had           Bell v. State (Cr.App. 1939) 137 Tex.Crim. 401,
    traveled to Texas for period of three days for         129 S.W.2d 664. Marriage.(§;::> 13
    purpose of vacation and consideration of Texas             It is essential to common-law marriage that
    as a future retirement site and that they held        there be (I) an agreement, express or implied,
    themselves out as husband and wife during              between parties to become husband and wife,
    their stay in Texas and privately exchanged           ,(2) cohabitation in pursuance of such agree~
    marital vows in their hotel room failed to estab-      ment, and '(3) a holding out by parties that they
    lish that claimant and decedent had been domi-        are husband and wife; and if any element does
    ciled in Texas and had contracted a valid com-         not exist, there is no common law marriage.
    mon-law marriage there. In re Stahl's Estate,          Moore v. Jordan, 1959, 328 S.W.2d 343, ref.
    App. I Dist.l973, 13 I1LApp.3d 680, 301 N.E.2d         n.r.e ..
    82. Marriage ~ 50(1)
                                                               In order to establish a common-law marriage,
    4.    Elements, generally                              it is necessary to show not only cohabitation of
                                                           the parties as man and wife and their holding
        The essential elements of a common-law mar-        each other out to the public as such. but also
     riage are: (i) an express or implied agreement        that such conduct has been pursuant to an
     to enter into marriage, (2) cohabitation as hus-      agreement to presently become husband and
     band and wife, and (3) holding themselves out         wife. McIlveen v. McIlveen, 1960, 332 S.W.2d
     to the public as being married. Cain v. Caine          113. Marriage ~ 20(2)
     (Civ.App.1958) 314 SW.2d 137; Wofford v.
     State (1911) 60 Tex.Crim. 624, 132 S.W. 929;               A marriage is more than a contract. it is a
     Berger v. Kirby (l913) 105 Tex. 611. 153 S.W.          status, and the living together as man and wife
      1130; De Beque v. Ligon (Civ.App.1926) 286            and the public and open holding out that the
     S.W. 749, reversed on other grounds, Com.App.,         two are man and wife are as essential to a valid
      292 S.W. 157; Bell v. State (1939) 137 Tex.           common-law marriage as the agreement itself,
      Crim. 401, 129 S.W.2d 664; Rush v. Travelers          and without such elements there is no common~
      Ins. Co. (Civ.App.1961) 347 S.W.2d 758; Hum-          law marriage. Ex parte Threet (Sup. 1960) 160
      phreys v. Humphreys (Sup.1963) 364 S.w.2d             Tex. 482, 333 S.W.2d 361. Marriage ~ 1;
      177; Rosales v. Rosales (Civ.App.1964) 377            Marriage e::=o 13
      S.W.2d 661; Esparza v. Esparza (Civ.App.1965)             To make a prima facie or tentative showing of
      382 S.W.2d 162; Owens v. Owens (Civ.App.              a common-law marriage, three elements must
      1965) 398 S.W.2d 425; Morris v. Morris (Civ.          exist: (I) an agreement to be husband and wife;
     App.1971) 463 S.W.2d 295; Wells v. Hames               (2) living together as husband and wife; and (3)
     (Civ.App.197l) 464 S.W.2d 393, ref. n.r.e.; Ma-        a holding out to the public that the couple are
      lone v. Treadville (Civ.App.1972) 487 S.W.2d          husband and wife. Ex parte Threet (Sup. 1960)
     210.                                                    160 Tex. 482, 333 S.W.2d 361. Marriage ~ 13
        To prove common~law marriage in Texas,                  To establish a common~law marriage, there
     party must satisfy three elements: (I) couple          must be an agreement to be husband and wife,
     agreed to be married; (2) after their agreement,        living together as such, and holding out to the
     couple lived together in Texas as husband and           public that the couple are husband and wife.
     wife; and (3) couple represented to others that        Williams v. Williams (Civ.App. 1960) 336
     they were married. White v. Stale Fann Mut.             S.W.2d 757, error dismissed.
      Auto. Ins. Co .. E.D.Tex.1995. 907 F.Supp. 1012.           There are three essential elements of a com~
      Maniage ~ 13                                           mon.law marriage: (1) an agreement presently
        Living together as man and wife under a              to become man and wife, (2) a living together
      mutual agreement to live in the relation consti~        pursuant to the agreement and cohabitation as
      tutes a common~law marriage. Knight v. State           husband and wife and (3) a holding out of each
      (Cr.App. 1909) 55 Tex.Crim. 243, 116 S.W. 56.          other to the public as husband and wife; each
      Marriage ~ 25(1)                                        of the elements is necessary and it is particular~
        To prove a "common-law marriage," there               ly essential that the parties mutually agree that
      must be proof that the parties either expressly         they will then and thenceforth be husband and
      or impliedly agreed to take each other for hus-         wife and that the following cohabitation be on
      band and wife _   during their natural lives, and       the faith of this mutual agreement and promise.
-   -'tharsuch agreement was followed by cohabita--           Gary v. Gary (Civ.App. 1973) 490 S.W.2d 929;
      tion and living together professedly as man and         ref. D.r.e.. Marriage ~ 13
      wife. Bell v. Southern Cas. Co. (Civ.App. 1924)            To establish common-law marriage there
      267 S.W. 531, error refused. Marriage ~ 20(1)            must be shown an agreement by parties to be~
         A "common-law marriage" is an agreement              'Come husband and wife, a living together pursu·
      between a man and a woman, both competent               ant to such agreement and a holding out of each
                                                        78
TIlE MARRIAGE RELATIONSHIP                                                                  § 2.401
Ch. 2                                                                                           Note 5
 other to the public as husband and wife; agree-     gether as husband and wife, and holding out to
 ment of marriage should be specific on both         public that couple are husband and wife. Du-
 sides. Chatman v. State (Cr.App. 1974) 513          rand v. State (App. I Dist. 1994) 881 S.W.2d
 S.W.2d 854. Marriage ~ 13                           569, review granted, vacated 958 S.W.2d 395,
   In order for a valid common-law marriage 10       on remand 931 S.W.2d 25, rehealing overruled,
 come into existence, three prerequisites must be    petition for discretional), review refused. Mar-
 met: a present agreement to be husband and          riage <i? 13
 wife, living together as husband and wife and a        Elements of common-law marriage are agree-
 holding of each other out to public as husband      ment to be husband and wife, living together as
 and wife. Navarro v. Collora (Civ.App. J 978)       husband and wife, and holding out to the public
566 S.W.2d 304, error granted, reversed 574          that couple are husband and wife. State v.
S.W.2d 65. Marriage €=> 13                           Miceles (App. 13 Dist. 1995) 904 S.W.2d 885.
   Although three elements that make up COIll-       rehearing overruled, petition for discretionary
man-law marriage may occur at different limes.       review refused. Marriage -<?? 13
until all three elements exist, there is no com-        In order to prove existence of common law
mon-law marriage. Winfield v. Renfro (App. I         marriage, one must prove that parties entered
Dist. 1991) 821 S.W.2d 640, writ denied. re-         into express or implied agreement to become
hearing of writ of error overruled, subsequent       husband and wife, that they cohabited in state
mandamus proceeding 846 S.W.2d 920. Mar-             pm'suant to that agreement, and that they repre~
riage e=> 13                                         sented to general public that they were married.
   Proof of camman-~law marriage pursuant to         Welch v. State (App. 8 Dist. 1995) 908 S.W.2d
Texas Family Code requires (1) agreement pre.s-      258, rehearing overruled. Marriage e:=> 13
ent1y to be married; (2) living together ill this       Proceeding to prove the existence of an infor-
state as husband and wife; and (3) holding each      mal marriage. which must be commenced with~
other out to public in this state as husband and     in one vear of termination, is one wherein all
wife, and language of statute precludes proof of     the req~isite elements under Texas law are es~
common-law marriage- when aforementioned             tablished. Villegas v. Griffin Industries lApp.
acts occur in state other than Texas. Texas          13 Dis1. 1998) 975 S.W.2d 745, review denied.
Employers' Ins_ Ass'n v. Borum (App. 4 Dist.         Marriage ~ 55
1992) 834 S.W.2d 395, writ denied. Marriage
                                                        In Texas, cammon~law marriage requires
<p13
                                                     proof of (I) an agreement to be married, fol-
   Evidence of common~law marriage must              lowed by (2) cohabitation and (3) representa-
show that parties intended to have present, im·      tions to others that they were married. Mills v.
mediate, and permanent marital relationship          Mest (App. 14 Dist. 2002) 94 S.W.3d 72, rehear~
and that thev did in fact agree to be husband        ing overruled, review denied. Marriage ~ 13
and wife. Fiores v. Flores (App. 10 Dist. 1993)
847 S.W.2d 648, rehearing denied, writ denied.         Strict requirements necessitating proof of
                                                     each of the elements of a common-law marriage
Marriage €==' 13
                                                     must be established in Texas before the courts
   Although three elements of common~law mar-        there will lend judicial sanction to any assertion
riage may occur at different times, until all        that a marriage relationship exists. In re Bivi-
three exist, there is no common-law marriage.        ans' Estate, 1982, 98 N.M. 722, 652 P.2d 744,
Flores v. Flores (App. 10 Disl. 1993)·847 S.W.2d     certiorari quashed 98 N.M. 762, 6"52 P.2d 1213.
648, rehearing denied, writ denied. Marriage         Marriage €=> 500)
""13                                                   Because of the mobility of modem society, the
   To establish common-law marriage, it must         possibility of fraud arising from claims of com-
be shown that parties have present agreement         mon-law marriage, and the uncertainty which
to be married. that they live together as hus-       such claims of marriage inject into the affairs of
band and wife, and that they represent to others     individuals, it is not enough to establish a com~
that they are married. Weaver v. State (App. 14      mon-Iaw marriage that the parties have togeth-
Dis!. 1993) 855 S.W.2d 116. Marriage €=> 13          er made occasional visits to a jurisdiction that
   Elements required to prove common-law             recognizes common-law marriages. In re Bivi-
marriage are (1) agreement to be married, (2)        ans" Estate, 1982. 98 N.M. 722. 652 P.2d 744.
after agreement. couple lived together in Texas      certiorari quashed 98 N.M. 762, 652 P.2d 1213.
as husband and wife, and (3) couple represent-        Marriage €==' 3
ed to others that they were married. Russell v.
Russell (Sup. 1993) 865 S.W.2d 929, rehearing            5: Agreement-In general
overruled; on remand 1994 WL 523256, writ                  A contract per verba de praesenti or per verba
denied. Marriage €==' 13                                 de futuro cum copula is a valid common-law
   Elements of common-law marriage are:                  marriage. Bargna v. Bargna (Civ.App. 1910)
agreement to be husband and wife, living ta-             127 S.W. 1156. Marriage e=> 20(2)
                                                    79
§ 2.401                                                   THE MARRIAGE RELATIONSHIP
Note 5                                                                                        Title 1
   Evidence, in an action to recover personalty       marriage, may be established by direct or cir-
 belonging to a decedent, on the ground that          cumstantial evidence. Russell v. Russell (Sup.
plaintiff was his wife, sustained a finding that      1993) 865 S.W.2d 929, rehearing overruled, on
.she made no agreement to become decedent's           remand 1994 WL 523256, writ denied. Mar-
wife, or that any agreement made was not made         riage <> SOC I)
in good faith with intention to cohabit thereun-
der. Grigsby v. Reib{Cjv.App. 1911) 139 S.W.           6. - - Implied or inferred, agreement
 1027, affirmed lOS Tex. 597, 153 S.W. 1124,              Agreenient to marry need not be shown by
Am.Ano.Cas. 19I5C,lOII. Marriage p 50(1)               direct evidence in order to establish common-
   An agreement between a man and a woman              law marriage, but may be implied or inferred
then to become and thence ahenvarcls to be             from evidence that establishes elements of co-
husband and wife is the gist of a common-law           habitation and holding out to public as husband
marriage. Edmondson v. Johnson (Civ.App.               and wife. CoHora v. Navarro (Sup.1978) 574
 1918) 207 S.W. 586, error refused. Marriage           S.W.2d 65; McClendon v. Brown (Civ.App.
<P 20(1)                                               1933) 63 S.W.2d 746; McIlveen v. McIlveen
                                                       (Civ.App.1960) 332 S.W.2d 113; Rush v. Travel-
   That children were born to parties as result of     ers Ins. Co. (Civ.App.196l) 347 S.W.2d 758;
their living together does not dispense with           Rosales v. Rosales (Civ.App.1964) 377 S.W.2d
agreement to create common-law marriage.               661; Howard v. Howard (Civ.App.1970) 459
Bell v. Southern Cas. Co. (Civ.App. 1924) 267          S.W.2d 901; Morris v. Morris (Civ.App.1971)
S.W. 531, error refused. Marriage ~ 20(1)              463 S.W.2d 295; Malone v. TreadvilIe (CivApp.
   Common-law marriage is based upon an                 1972) 487 S.W.2d 210; Reilly v. Jacobs (Civ.
agreement between parties to become husband            App.1976) 536 S.W.2d 406, ref. n.r.e.; Till v.
and wife. Welch v. State (Cr.App. 1948) 151            Till (Civ.App.1976) 539 S.W.2d 381; Smith v.
Tex.Crim. 356, 207 S.W.2d 627. Marriage €=>            Smith (Civ.App.1980) 607 S.W.2d 617; In re
 13                                                    Glasco (Civ.App.1981) 619 S.W.2d 567; Grigsby
   Agreement upon which common-law mar-                 v. Grigsby (App. 4 Dist.I988) 757 S.W.2d 163;
riage is predicated should be specific from both        Garduno v. Garduno (App. 13 Dist.1988) 760
sides. Welch v. State (Cr.App. 1948) 151 Tex.           S.W.2d 735; Winfield v. Renfro (App. I Dist.
Crim. 356, 207 S.W.2d 627. Marriage ~ 20(1)             1991) 821 S.W.2d 640, subsequent mandamus
                                                        proceeding 846 S.W.2d 920; In re Bivians' Es-
   Evidence that man and woman openly cohab-
                                                        tale (N.M.App.I982) 652 P.2d 744.
ited as husband and wife and recognized and
treated each other as such and were conceded               Only if man and woman held themselves out
to be parents of children born to woman war-            to public as man and wife and lived together as
ranted finding of actual agreement at com-              man and wife may inference of agreement to be
mencement of cohabitation to become husband             married be drawn. Claveria v. Claveria's Estate
and wife, so that there was such common law             (Civ.App.l980) 597 S.W.2d 434, reversed on
marriage as would entitle woman and children            other .grounds 615 S.W.2d 164; Persons v. Per-
to part of man's estate on his death. Smith v.          sons (App. 1 Dist.1984) 666 S.W.2d 560, ref.
White, 1948,216 S.W.2d 672, ref. n.r.e .. Mar-          n.r.e.
riage ~ 50(5)                                              An agreement to consummate common-law
   In suit in trespass to try title, brought by         marriage need not be expressed or evidenced by
plaintiff claiming to be issue of common-law            any fonn of words. Associated Indem. Corp. v.
marriage into which owner of property had               BiJlberg (Civ.App. 1943) 172 S.W.2d 157. Mar-
allegedly entered during his lifetime, fact issue       riage <l= 20(1)
was raised as to existence of agreement to be-             Acts, statements, and conduct of a man and
come husband and wife; and finding that there           woman are pertinent evidence from which a
has been no such agreement was not merely a             JUI}, may reasonably infer a contract between
finding of an evidential)' matter but was a find-       them to satisfy requirements of valid common-
ing on ultimate fact issue, and court could ren-      . law marriage. Hill v. Smith (Civ.App. 1944)
der jud,gment for defendant thereon. Moore v.            lSI S.W.2d lOIS. Marriage <l= 50(1)
Jordan, 1959,328 S.W.2d 343, ref. n.r.e .. Mar-             Agreement to marry, as, basis for common law
riage ~ 51; Trial ~ 395(5)                               marriage, may be implied from cohabitation
   There must be a meeting of the minds or               and holding out, but cannot be implied contrary
there is no contract, i.e., agreement presently.to       to direct evidence negativing agreement. Rush
become man and wife; in absence of such an               v. Travelers Ins. Co. (CivApp. 1961) 347 S.W.2d
agreement there can be no common-law mar-                758. Marriage'~ 20(1)
riage. Gary v. Gary (Civ.App. 1973) 490                     It is not necessary that an express agreement
S.W.2d 929, ref. n.r.e .. Marriage ~ 20(2)               to be presently husband and wife be shown by
   Agreement to be "informally" married, as ele-         direct evidence in order to establish common
ment of proof required to establish common-law           law marriage, and contract to marry may be
                                                     80
THE MARRIAGE RELATIONSHIP                                                                    § 2.401
Ch.2                                                                                            Note 8
implied or inferred from evidence which estab·       Marriage ( p 200); Marriage €=> 50(4); Mar-
lishes a living together as husband and wife and     riage ( p 50(5)
a holding of each other out to the public as
husband and wife. Humphreys v. Humphreys             7. - - Conditional, agreement
(Sup. 1963) 364 S.W.2d 177. Marriage ~                 An agreement between a man and woman
50(1)                                                that they would live together so long as they
    A present agreement to become man and            desired but either could dissolve the marriae:e at
 wife, sufficient to support finding of cammon-      anv time, did not constitute a lawful mar;ia!!e
 law marriage, may be implied or inferred from       by' agreement. Schwingle v. Keifer (Sup. 1913)
 cohabitation and a holding out as husband and       105 Tex. 609, 153 S.W. 1132. Marriage €=>
wife; agreement is fundamental and cohabita-             20(1)
tion is only one element of common-law mar-             That the parties to a common-law marriage
 riage, which will not suffice in itself. Garv v.    were to live together as husband and wife in
Gary (Ch'.App. 1973) 490 S.W.2d 929, ·,ef.           accordance with their agreement to do so and
n.r.e .. Marriage <P 12; Marriage ( p 50(0           at some future time, when their affairs made it
   Where evidence established conclusively that      feasible 01' practical, they would solemnize their
decedent and putative spouse lived together as       relation by engaging in ~ lawful ceremony could
husband and wife and held themselves out to          not bc construed into a modification of the
world to be husband and wire, trial judge was        marriage agreement or render it void. Tram-
justified in inferring agreement of parties to be    mell y. Trammell (Civ.App. 1946) 196 S.V·,r.2d
married and thereby finding that common-law          209. Marriage <S:=> 13
marriage existed, notwithstanding evidence in-          Agreement that after some trial pcriod, if
dicating that putative spouse did not change her     things worked out, or if divorced wife got medi-
name on a driver's license until after decedent's    cal help or counseling the parties might remm'-
death, that putative spouse did not change her       I}' was insufficient to establish a common-law
name on her social security card and that dece-      marriage. Rosetta v. Rosetta (Civ.App. 1975)
dent had opened bank accounts and had bank           525 S.W.2d 255. Marriage~ 20(1)
safety deposit box in his name without joinder          For purposes of establishing a common-law
of putative spOllse. Reilly y. Jacobs (Civ.App.      marriage, inferred agreement to be marrir.:d
 1976) 536 S.W.2d 406, ref. n.Le .. Marriage ~       must be a present agreement, unconditional and
50(1)                                                unqualified, to be husband and wife as long as
   For purposes of establishing a common-law         both of them lived. Claveria v. Claveria's Es-
marriage, evidence of representation made by         tate (Civ.App. 1980) 597 S.W.2d 434, reversed
couple and character of couple's cohabitation        615 S. W.2d 164. Marriage <S=> 20(1)
must lead to inference that couple ae:reed to be        Woman's testimonv that she and the decedent
husband and wife for remainder of ~their lives.      had been planning - to get married and had
Claveria v. Claveria's Estate (Civ.App. 1980) 597    moved in with her sister to "try out" the rela-
S.W.2d 434, reversed 615 S.W.2d 164. Mar-            tionship before actually getting married estab-
riage   *'
         20(1)                                       lished that there was no present agreement to
  Agreement to be married may be inferred            be married and thus no common-law marriage.
from direct or circumstantial evidence which         Leal v. Moreno (App. 13 Dist. 1987) 733 S.W.2d
preponderates that parties lived together in         322. Marriage cg:. 50(2)
state of Texas and did, in Texas, represent to
others that they were married, notwithstanding           8. - - Present intent, agreement
amendment to informal marriages statute which              In an action for a man's wrongful death,
now requires proof as a matter of law that               evidence was insufficient to show that plaintiff
parties agreed to be married. Russell v. Russell         was his common-law wife, even if he did not
(App.9 Dist. 1992) 838 S.W.2d 909, writ grant-           have another wife living at such time; the
ed, reversed 865 S.W.2d 929, rehearing over-             agreement- shown being one to get married, and
ruled, on remand, writ denied. Marriage €=>              not a marriage contract. Lopez v. Missouri. K.
50(1)                                                    & T. Ry. Co. of Texas (Civ.App. 1920) 222 S.W.
                                                         695, error dismissed. Marriage €=> 50(1)
   Under Texas law, which recognizes common-
law marriage, agreement to become husband                   A "common-law marriage" is one in which
and wife need _not be express, bui. may be               there is an agreement to become husband and
proved circumstantially from evidence that par-          wife immediately from the time of giving of the
ties lived together as husband and wife and              mutual consent. Crossett v. State (CLApp.
represented to others that they were married,            1923) 97 Tex.Crim. 18,260 S.W. 186. Marriage
though agreement must be specific and mutual.            ( p 20(2)

People v. Badgett (1995) 10 Cal.4th 330, 41                 Where man and woman began living together
CaLRptr.2d 635, 895 P.2d 877, opinion on re-             under agreement presently to be husband and
mand not for publication. Marriage €=> 18;               wife following wife's divorce from formel' hus-
                                                    8!
§ 2.401                                                   THE MARRIAGE RELATIONSHIP
Note 8                                                                                         Title I
 band and they continued to live together as         included additional agreement to again become
 husband and wife for period of about five years     husband and wife, which agreement is essential
 during which they held each other out to public     to the finding of common-law marriage. Gary
 as being husband and wife, there was a valid        v. Garv (Civ.App. 1973) 490 S.W.2d 929, ref.
 common-law marriage. Tatum v. Tatum (eiv.           n.Le.. Marriage <3=> 40(3)
 App. 1972) 478 S.W-.2d 629, di.smissed ~'.o.j ..       Where there was no showing of any agree-
 Marriage €=> 22                                     ment between parties to become husband and
    Present agreement to be married is a neces-      wife, and where woman was still married to
 sal)' element of common-law marriage; it is not     husband at time she was living with party
 sufficient to agree on present cohabitation and     claiming that a common-law marriage existed
 future marriage. Rosetta \T. Rosetta (Civ.App.      between himself and woman, parties could not
 1975) 525 S.W.2d 255. Marriage   *'   20(2)         have entered into valid marriage agreement and
                                                     there was no common-law marriage. Bodde v.
   Direct evidence of agreement to be married
                                                     State (CLApp. 1978) 568 S.W.2d 344, certiorari
 by parties to present cohabitation and future
                                                     denied 99 S.Ct. 1520,440 U.S. 968, 59 L.Ed.2d
marriage is insufficient to establish putative
                                                     784, rehearing denied 99 S.Ct. 2189, 441 U.S.
 marriage but, rather, there must be present
                                                     957,60 L.Ed.2d 1062. Marriage <3=> 13
agreement to be married. Garduno v. Garduno
(App. J3 Dist. 1988) 760 S.W.2d 735. Marriage           Valid common-law marriage did not exist be-
*'   54(1)                                           tween defendant and girlfriend at time defen-
                                                     dant made inculpatory statements regarding
   To establish element of common-law mar-
                                                     murder of his wife, such that statements would
riae:e that the parties agreed to be married.
                                                     fall within marital communication privilege, as
evidence must show parties intended to have
                                                     there was no testimony that before conversation
present; immediate. and permanent marital re-
                                                     at i.ssue defendant had told girlfriend either that
lationship and that they did in fact agree to be
                                                     he had divorced wife or that wife was dead, so
husband and wife. Winfield v. Renfro (App. 1
                                                     girlfriend could not have agreed to enter into
Dist. 1991) 821 S.W.2d 640. writ denied, re-
                                                     common-law marriage with defendant, and girl-
hearing of writ of error overruled. subsequent
                                                     friend's testimony was often ambiguous and un-
mandamus proceeding 846 S.W.2d 920. Mar-
riage cp 20(1)                                       certain as to her relationship with defendant.
                                                      Durand v. State (App. 1 Dist. 1994) 881 S.W.2d
   For purposes of determining whether work-          569, review granted, vacated 958 S.W.2d 395,
er's compensation death benefits were properly        on remand 931 S.W.2d 25, rehearing overruled,
terminated by reason of remarriage of claimant.       petition for discretionary review refused. Wit-
life insurance poliCies held by claimant and          nesses <3=> 189
putative spouse and classifying each as benefi-
ciary and "fiancee" did not tend to show agree-      10. - - Admissibility of evidence, agreement
ment to be married because element for com-            In partition action wherein controlling issue
mon-law marriage requires that there be an           was existence of valid common·law marriage
agreement presently to be married-not to mar-        between plaintiff and vendor of land in dispute
ry at some point in the future. Texas Employ-        who had since died, testimony of plaintiff that
ers' Ins. Ass'n ·v. Borum (App. 4 Dist. 1992) 834    in April. 1949 she and vendor had agreed to be
S.W.2d 395, writ denied. Workers' Compensa-          married was not violative of dead man's statute
tion e=:o 496                                        (Vernon's Ann.Civ.St. art. 3716). Navarro v.
                                                     Collora (Civ.App. 1978) 566 S.W.2d 304, error
9. - - Prior marriage, agreement                     granted, reversed 574 S.W.2d 65. Witnesses e=>
  Where plaintiff moved into defendant's home        159(2)
and lived with defendant when plaintiff knew
that defendant was married to another woman              11. - - Sufficiency of evidence, agreement
who was living and could not form a marriage               Where a married man had been living with a
relationship with plaintiff, and defendant re-           woman before his divorce, and they masquerad-
fused to consent to marry plaintiff, a "common-          ed as husband and wife prior thereto, finding of
law marriage" did not result although plaintiff          jury that after his divorce there was no mutual
and defendant lived together for several years.          agreement with bona fide intention of entering
Timmons v. Timmons, 1949, 222 S.W.2d 339.                into marital relation so as to constitute com·
Marriage e= 22                                           mon-Iaw marriage was sustained under evj·
  Even if deceased workman and woman seek-               dence. Robinson v. Casey (Civ.App. 1925) 272
ing workmen's compensation death benefits as             S.W. 536, error dismissed.
surviving common-law wife had an agreement                 That couple went before priest and signified
to go back to living together because of belief          their consent and agreement to enter into mar-
that their second divorce was invalid, fact that         riage and ratified agreement by introducing
they did not go through another marriage cere-           each other as husband and wife and lived in
mony precluded inference that such agreement             accommodations in more than one location
                                                    82
      THE MARRIAGE RELATIONSHIP                                                                       § 2.401
      Ch. 2                                                                                              Note 11
      containing one bedroom with one bed estab-                  aereement to be married. Winfield v. Renfro
      lished common-law marriage between the cou-                (App. 1 Dis1. 1991) 821 S.W.2d 640, writ de-
      ple. Foix v. Jordan (Civ.App. 1967) 421 S.W.2d              nied, rehearing of writ of error overruled, sub-
      481, ref. nX,e .. Marriage ~ 13                            sequent mandamus proceeding 846 S.W.2d 920.
         Facts that couple lived together and held                Marriage ~ 50(4); Marriage ~ 50(5)
      themselves out as husband and wife, and recog-                 Woman's testimony that she and man agreed
      nized and supported their child, were sufficient            to be married informally after she became preg-
      to raise issue of marriage and constituted perti-           nant and that she agreed to forego ceremonial
      nent evidence [rom which jury could reasonabl\'             marriage because of man's concerns about ef-
      infer existence of agreement 'to enter into con~­          fect o( fathering child before marriage would
      mon-law marriage and therefor!; a \'Cilid com-              hay!.:' upon his image with media, his endorse-
      mon-law marriage. Flores Gonzakz v, Viuda                   ment contracts, and athletic team of which he
      de Gonzalez (Civ.App. 1971) 466 S.W.2d 839,                 WOlS a member was sufficient to overrule legal
      ref. n,r.e. Marriage ( P 50(5)                             sufficiency challenge to evidence to support
        In divorce suit, evidence suppor-ted finding             common-law marriage clement of agreement to
     that plaintiff and defendant had agreed \0 be               be married. Winfield v. Renfro (App. 1 Dist.
     husband and wife. had lived together as hus~                 1991) 821 S.W.2d 640. writ denied, rehearing of
     band and wife and had held each other Ollt to               writ of error overruled, subsequent mandamus
     the public as such. Tatum v. Tatum (CiY.App.                proceeding 846 S.W.2d 920. Marriage ~ SO{l)
     1972) 478 S.W.2d 629. dismissed w.o.i .. Mal'-                  Evidence that husband and wife continued to
     riage ~ 50(5)                          .                    live together after divorce was insufficient to
       Evidence in action to remove cloud on title               establish agreement to be married, as required
     sustained affirmative answers to special inter-             for common-law marriage. in view of evidence
     rogatories to effect that mother and father of              that wife held herself out as single person whl:n
     pHlInu·lI. who daimed to have inherited title
                                                                 :-;he was admitted to hospital, and evidence that
"~~.J:n,m          agreed and consemed to become                 husband was later ceremonially married to an-
     husband and wife. cohabited as husband and                  other person. V.T.C.A., Family Code §§ 1.91(a),
     wife. and held themselves OLit to public as hus-            2.01. Flores v. Flores (App. 10 Dist. 1993) 847
     band and wife. Malone v. Treadville (eiv.App.               S.W.2d 648, rehearing denied, writ denied.
     1972) 487 S.W.2d 210. Marriage ~ 50(1)                      Marriage e=> 20(1)
                                                                     Although agreement to be "informally" mar-
        For purposes of establishing a common-law
                                                                 ried may be established by circumstantial evi-
      marriage. clement of living together as man and
                                                                 dence, as element of proof required to establish
     wife is not established by proof of :>cxual rela-
                                                                 common-law marriage, it is subject to legal and
     tions under a common roof. Claveria v. Clave-
                                                                 factual sufficiency review on appeal to Court of
     ria's Estate (Civ.App. 1980) 597 S.W.2d 434.
                                                                 Appeals and legal sufficiency review on appeal
     reversed 615 S.W.2d 164. Marriage <::> 13
                                                                 to Supreme Court. Russell v. Russell (Sup.
        Evidence wa:> :>ufficient to uphold trial court's         1993) 865 S.W.2d 929, rehearing overruled. on
     implied findings that parties agreed to be hus-             remand 1994 WL 523256. writ denied. Appeal
     band and wife and that they lived together as               And Error e=> 1010.1(2); Appeal And Error ~
     husband and wife and held each other out to                  1094(1 )
     public as such and. thus, that common-law mar-                  Common-law marriage existed between de-
     riage existed between decedent and appellee.                fendant and state witness, as required to sup-
     who had filed an application to declare heirship·           port husband-wife confidential communication
     in administration of estate of decedent. claiming           privilege, despite fact that witness did not con-
     ownership to part of estate as sunriving com-               sider herself married to defendant, and despite
     mon-law wife of decedent. In re Glasco (ejv.                fact that witness filed divorce petition shortly
     App. 1981) 619 SW.2d 567. Marriage ~ 50(5)                  after communications at issue; couple had lived
        Exchanging of wedding rings, new affinna-                together a number of years. and defendant con-
     tion that wife should tell "everyom: * * * that             sidered himself married to witness. State v.
     we had just gotten married," and husband's                  Mireles (App. 13 Dis!. 1995) 904 S.W.2d 885.
     statement to wife that she was his wife was                 rehearing overruled. petition for discretionary
     sufficient to show common-law marriage agree-               review refused. Marriage <s:=;:> 13; Witnesses e=>
     ment and putative marriage following those                  1~9
     acts. Garduno v. Garduno (App. 13 Dist. 1988)                 Woman's testimony that she told man they
     760 S.W.2d 735. Marriage <P 13                              "didn't have to be married to be married" and
        Man's cohabitation with woman for much of                that she did not want to take his name to
     year and representations to others that he was              protect her credit, and man's testimony that he
     buying condominium for his family was suffi-                considered they were married. was legally suffi~
     cient to overrule factual sufficiency challenge to          cient to support common-law marriage element
     support common-law marriage element of                      of agreement to be married_ Eris v_Phares
                                                            83
§ 2.401                                                  THE MARRIAGE RELATIONSHIP
Note 11                                                                                       Title I
(App. 1 Dist. 2001) 39 S.W.3d 708, review de-        common-law or putative wife so as to become
nied, rehearing of petition for review denied.       deceased's heir at law. In re Greathouse's Es-
Marriage <§::;;> 13                                  tate (Civ.App. 1944) 184 S.W.2d 317. Marriage
                                                     ~Il
   Man's testimony that woman moved into his
home shortly after they began dating, that she          A necessary ingredient of a common-law mar-
 kept a few items of furniture, her clothing, and    riage is that the parties live together as husband
her personal items there, that she slept at his      and wife and hold themselves out as such.
home every night, that the two lived as if they      Welch v. State (CLApp. 1948) 151 Tex.Crim.
were married, as well as witnesses' testimony        356,207 S.W.2d 627. Marriage e::> 13
[hat the couple was considered to be married            Mutual agreement between parties to be hus-
and that woman acted like man's wife when            band and wife and cohabitation as husband and
they were in his home, was factually sufficient      wife upon faith of the agreement is necessary to
[0 SUpp0l1 common-law marriage element of            formation of a "common-law marriage". Tim-
agreement to be married. Ens v. Phares (App.         mons v. Timmons, 1949,222 S.W.2d 339. Mar-
1 Dist. 2001) 39 S.W.3d 708, review denied.          riage oS=> 13
rehearing of petition for review denied. Mar-            Fact that defendant and State's witness had
riage e:> 13
                                                     lived together in cohabitation for a period of
   Evidence was sufficient to establish agree-       about four or five months did not establish
ment to be married so as to support fjnding that     common-law marriage so as to render wife's
common law or informal marriage existed; al-         testimony inadmissible. Archie v. State (Cr.
though couple did divorce, woman testified that      App. 1974) 511 S.W.2d 942. Witnesses e::> 63
in years after couple's divorce, she and man             Where man and woman had lived together as
agreed they were married and that man told her       husband and wife and had represented them-
they were married, and after their divorce cou-      selves to others as being married, fact that, after
ple cohabitated for 20 years, adopted two chil-      dissolution of man's previous marriage by di-
dren together, made representations to others        vorce, man and woman had spent only three-
that they were married, and man willingly            day period of timt: together was not controlling
signed and accepted without question legal doc-      on issue as to whether valid marital relationship
uments referring to existing marriage of couple.     existed between man and woman upon dissolu-
Lewis v. Anderson (App. 5 Dist. 2005) 173             tion of prior marriage under § 2.22. Durr v.
S.W.3d 556, rehearing overruled. revjew de-           Newman (Civ.App. 1976) 537 S.W.2d 323, ref.
nied, rehearing of petition for review denied.        n.r.t:' .. Marriage>S=> 13
Marriage >S=> 50(2); Marriage ~ 50(4)
                                                     13. - - Sufficiency of evidence, cohabitation
12.   Cohabitation-In general
                                                       Evidence established that claimant had no
   A present agreement to be husband and wife,       common-law marriage with wage carner at
not followed by cohabitation. does not consti-       time of his death and that neither claimant nor
tute a valid marriage. To constitute a valid         her children were entitled to survivors' benefits;
marriage by agreement, the cohabitation must         several exhibits indicated that claimant and
be professedly as husband and wife, so that the      wage earner did not live together at the time of
parties may be known as husband and wife by          his death or at any time in preceding 16
their conduct. Grigsby v. Reib {Sup. 1913) 105       months. Warren v. Secretary of Health and
Tex. 597. 153 S.W. 1124, Am.Ann.Cas.                 Human Services, C.A.S (Tex.)I989, 868 F.2d
1915C,10tl. Marriage~ 20(1)                          1444. Social Security And Public Welfare <P
   In order to constitute a valid, comOlon-law           143.4
marriage sufficient to support a prosecution for        Evidence in probate proceeding in which ap-
bigamy, there must be not only the assent of the     plicant sought widow's share of estate, includ-
parties to the marriage, but also a continuous       ing unquestioned fact that applicant and de-
living together as husband and wife. Melton v.       ceased prior to his death lived together under
State (Cr.App. 1913) 71 Tex.Crim. 130, 158           same roof. which fact was known to some of
S.W.550. Marriage<P 13                               their relatives and friends and was not kept
   Cohabitation and professedly living together      secret, supported finding that applicant con-
as husband and wife will not constitute a legal      tracted valid common-law marriage with de-
"common-law marriage" if the element of prop-        ceased prior to his death. Flavin v. Flavin
er contract be lacking. Perales v. Flores (Civ.      (Civ.App. 1975) 523 S.W.2d 94. Marriage e::>
App. 1941) 147 S.W.2d 974, error refused.            500)
Marriage <P 13                                          Evidence that the day after divorce husband
   Where deceased cohabited with another wom-        and wife spent night together, and thereafter
an after he separated from his wife but without      lived together just as they had before their di-
ever obtaining a divorce and no ceremony was         vorce, was sufficient to support finding of jury
performed. other woman was not deceased's            that wife and husband were married at common
                                                    84
THE MARRIAGE RELATIONSHIP                                                                  § 2.401
                                                                                             Note 15
Ch. 2
law. Smith v. Smith (eiv.App. 1980) 607                 In probate proceeding concerning validity of
S.W.2d 617. Marriage 0$:;;> 50(5)                     common-law marriage under Texas law, evi-
                                                      dence was sufficient to support finding that man
  Evidence that man bought condominium for            and wife had li....ed and cohabited together in
woman four months aher~ date alleged in jury          Texas, notwithstanding that their residence was
question as time man and woman lived togethe-r        in New Mexico. Matter of Willard's Estate,
as husband and wife, the two of them were             1979, 93 N.M. 352, 600 P.2d 298. Marriage rp
together as ohen as man could be in Texas, he         50(5)
sent his bed to Texas, he kept his personal
belongings there, and he acted "husbandly" by          14.  Representation or holding out to others-
doing errands. working around house, and gen-                 In general
erally behaving as if he were married was suffi-        Where a man and woman, whose m'llTia!!c
cient to support element of common-la'\\' mar-        w<!s not prohibited, maintain the relationship ~r
riage of living together as husband and wife in       husband and wife, holding themselves out to the
state on or about date alleged in jut:.' question.    world as such, there is a valid common-law
Winfield v. Renfro {App. 1 Dist. J 991) 821           n13i"riage. Houston Oil Co. of Texas v. Gl-iggs
S. W.2d 640, writ denied. rehearing of writ of        (Civ.App. 1915) 181 S.W. 833, error p'antcd,
error overruled, subsequent mandamus pro-
                                                      affirmed 213 S.W. 261. Marriage ~ 22
ceeding 846 S.W.2d 920. Marriage ~ 50(1)
                                                         A written agreement of the parties to be hus-
  Woman's testimony that beginning approxi-           band and wife and cohabitation pursuant there-
mately four months after date contained in jury       to, is insufficient to constitute a commonHlaw
question she and man lived together in state          marriage, it being necessary that such cohabita-
when he could was sufficient to ovelTule legal        tion and living together be professedly as hus-
sufficiency challenge to that element of .com-        band and wife. Reed v. State (CLApp. 1923) 95
mon-law marriage that parties live together in        Tc:... Crirn. 492, 255 S.W. 619. Man-iage ~
state after they agreed to be husband and wife.       20(1)
Winfield v. Renfro (App. ] Dist. 1991) 821
s.W.2d 640, writ denied, rehearing of writ of            In common-law marriages, the agreement is
error overruled, subsequent mandamus pro-              fundamental and cohabitation is element, but
ceeding 846 S.W.2d 920. Marriage ~ SO(l)               holding out to public as being man and wife is
                                                       acid test. McChesney v. Johnson (Civ.App.
  Mere cohabitation is insufficient to establisb       1934) 79 S.W.2d 658. Marriage ~ 20(1)
common law marriage. Welch v. State (App. 8
                                                         There can be no secret common-law marriage
Dist. 1995) 908 S.W.2d 258, rehearing over-            as such, since secrecy is inconsistent and irrec-
ruled. Marriage ~ 13                                   oncilable with requirement of a public holding
  Evidence of parties' intent to cohabit at a          oul that the couple are living together as hus-
later date was insufficient to establish an infor-     band and wife. Ex parte Threet (Sup. 1960)
malar common law marriage, whel-c parties              160 Tex. 482, 333 S.W.2d 361. Marriage ~ 13
conceded that they had never cohabited. Cana-             Statutory requirement of common-law mar H
dy v. Russell (App. 12 Dis!. 2004) 138 S.W.3d          riage of man and woman "representing to oth-
412, review denied. Marriage ~ 22                      ers" that they are husband and wife is synony~
   Summary judgment affidavits of various wit-         mous with judicial requirement of "holding out
 nesses indicating that putative husband and           to the public." Winfield v. Renfro (App. 1 Dist.
 wife lived together were insufficient to establish    1991) 821 S_W.2d 640, writ denied, rehearing of
 separate element of common law marriage that          writ of error ovcrruled, subsequent mandamus
 putative spouses reprcsented to others that they      proceeding 846 S_W.2d 920. Marriage e= 13
 were married. Nichols v_ Lightle (App. 7 Dis!.
 2004) 153 S.W.3d 563, rehearing overruled, re-         15. - - Conduct or actions, representation or
 view denied. Judgment ~ 185.3(9)                               holding out to others
                                                          The isolated reference to a person as being his
    Evidence failed to establish common-law             or her husband or wife constitutes no evidence
 marriage; although man and woman saw each              of a common-law marriage. Ex parte Threet
 other or spoke on a daily basis, had regular           (Sup. 1960) 160 Tex. 482. 333 S.W.2d 361.
 sexual relations, and went to family, profession-
                                                        Marriage €==> 500)
 al, and social events together, they maintained
 separate residences and bank accounts and,                To prove common-law marriage, evidence of
 during each year of their relationship, filed sep-     husband and wife introductions to general pub-
 arate tax returns labeling themselves as single,       lic is unnecessary, and proof of holding out to
 and persons aware of their relationship did not        .general public can be shown by other evidence,
 consider them manied. Westennan v. Richard-            including conduct and actions of parties. Ro-
 son (App. J3 Dis!. 2004) 2004 WL 100400. Un-           sales v. Rosales (Civ.App. 1964) 377 S.W.2d
 reported. Marriage ~ 13                                 661. Marriage~sO(l)
                                                      85
§ 2.401                                                   THE MARRIAGE RELATIONSHIP
Note 15                                                                                         Title 1
   Marriage, whether ceremonial or common-            law marriage. Edelstein v. Brown (Civ.App.
law, is p-roved by the same character of evi-         1904) 35 Tex.Civ.App. 625, 80 S.W. 1027. Mar·
dence necessarv to establish any other fact, and.     riage C;:> 22
thus, proof or" common-law ~arriage may be
shown by the conduct of the parties or by such           To esta"blish a marriage by reputation, there
circumstances as their addressing each other as       must be a consensus of opinion that the parties
though husband and wife. ackno·wledging their         living together are husband and wife. Schwin·
children as legitimate, joining in conveyance as      gil' \'. Keifer (Civ.App. 1911) 135 S.W. 194,
spouses and occupying the same dwelling place.        affirmed 105 Tex. 609, 153 S.W. 1132. Mar·
Clm. eria's Estate v. Claveria (Sup. 198 I) 615       riage C;:> 50(5)
S.W.2d 164. Marriage~ 13
                                                         Awareness by the community, or the public,
  Retention by appellee, who filed application        of a prior marriage or divorce is not required
to declare heirship in administration of estate of
                                                      since it would bar the establishment of a com·
 decedent claiming ownership to part of the es-
                                                      mon-Iaw marriage in those instances where par·
 late as a survivine: common-law wife of dece-
dent, of her forme; name and failure to adopt 01'     ties had previously been married, then divorced,
 use the name of decedent was not an admission        and after the divorce were living in a common-
that there was no common·law marriage. In rc          law relationship but the public had no know I·
 Glasco (Civ.App. 198!) 619 S,W.2d 567, Mar~          edge of the prior marriage or divorce. Daniel
 riage ~ 50(4)                                        v. Daniel (App. 9 Dist. 1984) 676 S.W.2d 666,
    Reference on credit application for purchase      ref. n.Le .. Marriage ~ 22
of van showing woman as the "spouse" of Illall
 was legally sufficient evidence of holding out to    17. - - Instructions, representation or hold.
 the public that man and woman were married                     ing out to others
 fo.- purposes of establishing commotl~law mm'~         An alleged common-law wife claiming status
riage; credit application, if false, would have       as sun'lving spouse and heir was not entitled to
l!xposed man and woman to criminal penalties,         an instruction stating a more detailed definition
 Persons v. Persons (App. J Dist. 1984) 666           of "representing to others" and the additional
S.\\'.2d 560, ref. n.Le,. Marriage ~ 50(4)            note that such representation can consist of
    Occasional introductions as husband and wife      conduct or spoken words; the trial court clearly
do not establish element of common~law mar·           basl'd the jUl)' charge on reasonable guidance,
riage of man and woman holding themselvc.,o.;         using a pattern jury charge that incorporated
out as being husband and wife. Winfield \'.           the statutory definition of informal marriage,
Renfro (App. 1 Dist. 1991) 821 S.W.2d 640, writ       and the inclusion of the additional details would
dcnied, rehearing of writ of error ovclTuled,         not have made the question considered by the
subsequent mandamus proceeding 846 S.W,2d             jury substantially different. Westerman v. Rich.
920. Marriage ~ 13
                                                      ardson (App. 13 Dist. 2004) 2004 WL 100400,
    Man and woman "holding out" themselvcs to         Unrep0l1ed. Marriage e=> 52; Trial G:=> 260(5)
others as husband and wife, an element re·
qui red for establishing common·law mardage,              18. - - Admissibility of evidence, representa-
may be established by conduct and actions of                    tion or holding out to others
pa.:ties; spoken word~ arc not necessary' to l'S·
tablish representation as husband and wife.             As evidence of the existence of a common·law
Winfield v. Renfro (App. I DisL 1991) 821             marriage between defendant and deceased,
S.W.2d 640, writ denied, rehealing of wlit of         cou11 properly admitted a receipt showing pay·
('ITOI' ovenuled, subsequent mandamus pm·             ment by defendant of funeral expenses of de.
cceding 846 S.W.2d 920. Marriage Q;:> 13              ceased, insurance policy and funeral records
    Statutory requirement that parties must have      indicating that defendant was wife of deceased,
"l'cpresented to others," so as to satisFv element    and other letters and documcnls showing that
of common· law marriage, is synonyn~ou::i with        the pm'ties held themselves out as husband and
the judicial requirement of "holding Ollt to thc      wife. Folse v. Monroe (Civ.App. 1945) 190
public." Eris v. Phares (App. I Dist. 200t) 39        S.W.2d 604, error refused. Marriage <3=> 42
S.W.3d 708, review denied, rehearing of peti~
tion for review denied. Marriage Q;:> 13                     Thl'ce~day stay in hotel with person of oppo·
                                                          site sex is not enough to establish element of
16. - - Prior marriage, representation or                 common·law marriage of holding themselves
        holding out to others                             out as being married. Winfield v. Renfro (App.
  Where a man and woman commenced to co·                   I Dist. 1991) 821 S.W.2d 640, writ denied,
habit at a time when the woman was the wife of            rehearing of writ of error overruled, subsequent
another, subsequently holding themselves Olit as          mandamus proceeding 846 S.W.2d 920. Mar·
husband and wife did not establish a common·              riage <3=> 13
                                                     86
THE MARRIAGE RELATIONSHIP                                                                         § 2.401
Ch. 2                                                                                                Note 19
19.   - - Sufficiency of evidence, representa-            1 Dist. 1991) 821 S.W.2d 640. writ denied,
        tion or holding out to others                     rehearing of writ of error overruled, subsequent
   Evidence that plaintiff did not change hel'            mandamus proceedine. 846 S.W.2d 920. Mar-
social security number after alleged common-              riage e=> 50(4)       ~
law marriage- to decedent and that she contin-                 Evidence was insufficient to establish that
ued to use surname of her fonner husband after            husband and wife who continued to live t02eth-
alleged marriage merely went to her credibility           I;.'r after their divorce represented to others~that
and did not constitute an admission Ihul she did          [hey were marded. a.s required for common-I~w
not hold herself out as wife of decc(lSt'd. J\l1cJ!-      nl<llTiagc; although husband introduced fonner
veen v. McIlveen, 1960,332 S.W.2d [13. M;:lr-             \dfc once afler the divorce as his wife and told
riage <P 50(4)                                            ~lI1olhcr person he was "living with my wife and
   Occasional usc of reference "wife" or "hus-            helping out." wife claimed to be single when
band" by deceased worknwll and woman, who                 she was admitted into hospital. husband testi-
was seeking \vorkmen's compensation death                 fied that he did not intend to be married, and
benefits as surviving widow, on resumption of             hu::>hcmd iatt'r married another person. Flores
cohabitation because of belief that their second          \'. Flores (App. 10 Dist. 1993) 847 S.W.2d 648,
divorce was invalid could not SUppOl'[ a findin!:'        rehearing: denied, \vrit denied. Marriage e=>
of "holding-out" as husband and wife suflkien'[           5U(4)
to establish common-Jaw marriage, especially                 Evidence that woman told two friends and a
where they had been twice married before.                 rev: of her customers that she was married to
GaI}' v. G~ry (Civ.App. 1973) 490 S.W.2.J 929.            man was legally insufficient to suppOli trial
ref. n.Le .. Marriage e=o 50(4)                           court's finding that man and woman represenl-
   Evidence thal cohabilating cuuple did not al·          cd to others that they were married, as ]'equircd
ways represent tht'msdves to be malTit..·U did            to establish common law marriage, where cou-
not preclude finding thai the c.:uuple had aureed         ple did not have reputation in community for
to be malTied as clement of e()mmon-I<n\'~mar­            being married and there was no c"idenct: that
riage. Matlel' of Estate of Giessel (App. 1 Dis!.         man represented to others that he was married
 1987) 734 S.W.2d 27, rd. n.r.e .. Marriage e=>           to wuman. Lee v. Lee (App. 1 Dist. 1998) 981
50(1)                                                     S.W.2d 903. Marriage e=> 50(4)
   Evidence was sufficient to establish that cuha-
bitating couple "held out" or n'I)I"escllIcd to             Testimony of several of man's friends and
others that they were hushand and wife as ell'-           employees' that they thought he and woman
ment of common-law marriage; cuuple rcll'ITed             were married because they lived t02ether and
                     ··h us ban d·· an cl·· WIt', an d
                                             ·1···        acted as if they were marri~d. along ~'ith man's
t o eaCl 0 lh cr as
        I
opinion and reputation testimony indicated that           testimony that he introduced woman as his wife
couple's conduct was viewed as representation             and she' never contradicted him, was legally
that they were married. MaUt'r of Estate of               sufficient to support finding that tht· two rep]"!;.'-
Giesscl (App. I DisL. 1987) 734 S.W.2d 27, I"(,f.         sented to others in Texas that they were mar-
                                                          ried, for purposes of establishing ~ommon-Iaw
n.r.e.. Marriage e=> 50(1 )                               marriage. Eris y. Phares (App. 1 Dist. 2001) 39
   Evidence was insuITicient to establish that            S.W.3d 708, review denied, rehearing uf peli~
man and woman represented to others in Texas              tion for l'eview denied. Marriage e=> 13
that they were married. as required to establish
common~-1aw marriage; woman represented                       Evidence that man told handful of friends that
that sht, was single in her tax I'eturns. bank ctlld      hI;" and woman were married, and that woman
pay records, and in her insurance applications,           once stated she and man "did not need to be
she signed daughter's birth certificatc in her            married to be married" was factuallv insuffi-
name and even by woman's testimony, marriage              cient to support common-law marriag~ dement
was largely a secret marriage. Winfield v. Ren-           of representing to others that parties were mar-
fro (App. 1 Dist. 1991) 821 S.W.2d 640. writ              ried. absent any other evidence that woman
denied, rehearing of writ of eITOI' overruled.            ever represented that parties were married. or
subsequent mandamus proceeding 846 S.W.2d                 documents from couple's joint bank account or
920. Marriage e=o 50(4)                                   closing transaction that transferred man's home
   Evidence that man reserved suite at hotel in           to woman as "a single person .." Eris v. Phares
the name of him and his wife, that woman told             (App. 1 Dist. 2001) 39 S.W.3d 708, review de-
 her mother that she and man were married, and             nied, rehearing of petition for review denied.
 that mailbox at condominium had man's name                Marriage <3= 13
 on it and man knew and did not object was                    Representation or "holding out" to others
 sufficient to overrule legal sufficiency challenge        that a man and woman are married may be
 to element of common-law marriage that the                shown by conduct rather than spoken word-s for
 parties represent themselves to others in state           purposes of supporting claim of common-law
 that they are married. Winfield v. Renfro (App.           marriage. Mills v. Mest (App. 14 Dis!. 2002) 94
                                                         87
§ 2.401                                                     THE MARRIAGE RELATIONSHIP
Note 19                                                                                            Title 1
S.W.3d 72. rehearing overruled. review denied.           Marriage status only arises where parties are
Marria ge ( 9 5 D( 1)                                  not only capable of so contracting, but volun-
  Evidence was sufficient to establish holding         tarily consent to assume; and by mutual con~
out of neW marriage so as to :;upport finding          tract do assume, such relation. U.S. Fidelity &
that common law or informal marriage existed;          Guaranty Co. v. Dowdle (Civ.App. 1924) 269
ceremonial marriage was terminated, and thus,          S.W.119. Marriage-<!> 18
when parties later represented that thev were              A party cannot enter into a marriage with
presently married, representation was     of
                                          new,         another without consent of the other. Timmons
current marriage rather than old. previously           \'. Timmons, 1949, 222 S.W.2d 339. Marriage
terminated ceremonial marriage. Lewis v.               eo 18
Anderson (App. 5 Dist. 2005) 173 S.W.3d 556,              Present consent and agreement to be married
rehearing overruled, review denied. rehearing          is the gist of common-law marriage and it is not
of petil.ion for review denied. Marriage <P 13         sufficient to agree on present cohabitation and
   Isolated references to -existence of marital re-    future marriage; the agreement necessary for a
lationship are not evidence of "holding out" to        common-law marriage must be specific from
others that a marriage exists, for purpose of          both sides. Gary v. Gary (Civ.App. 1973) 490
determining whether common law marriage 1:';>;-        S.W.2d 929, ref. n.r.e .. Marriage ~ 20(2)
iS1S. Nichols v. Lightle (App. 7 DisC 2004) 153
S.W.3d 563, rehearing overruled, review de-            21. Intent
nied. Marriage ~ 13                                       A mere agreement to become husband and
  Summary judgment affidavit.s of putative hus-        wife without~ a present intention to assume that
band were insufficient to demonstrate that he          relation does not constitute a marriage. Grigs-
and putative wife represented to others that           by v. Reib (Civ.App. 1911) 139 S.W. 1027, af-
they were married, as required to show com-            firmed 105 Tex. 597, 153 S.W, 1124, Am.Ann.
mon law malTiage, as statemenls in affidavilS          Cas. 1915C, 1011. Marriage os=> 20(2)
were merely conclusory, absent recitation of             That a couple were living together, and some
any specific factual bases for statements. Nich.       time intended to marry was insufficient to show
ols v. Lightle (App. 7 Dist. 2004) 153 S. W.3d         a common-law marriage. Nelson v. State (Cr.
563, rehearing overruled, review denied. Judg-         App. 1918) 84 Tex.Crim. 219, 206 S.W. 361.
Illt."nt~ 185.1(4)                                     Marriage e:=o 13
   Evidence in common law divorce adion was              Where man who had been living with woman
sufficient to support finding that common law          under meretl'idous an'angement, though stating
marriage existed between alJeged husband and           intent to marrv, declared that there was no use
alleged wife; alleged wife testified that she and      fur them tu Ill;rry and that they could "live just
husband decided not to have formal marriage            as good without marrying because many people
for financial and religious reasons but agre;d         malTy and divorce," and they cohabited as hus-
on in/"ormal marriage, that they told her parents      band and wife. intent to create a status deter-
they were married, and that her parents gave           minable at will, without intervention or approv-
them a wedding .gift, there was evidence that          al of governmental agencies, was shown and
they bought home together, and there was evi.          hence there was no "common-law marriage".
dence that alleged husband represented he was          Perales v. Flores (Civ.App. 1941) 147 S.W.2d
married on various documenls, including loan           974, errol" ,·efused. Marriage <.P 13
application, insurance forms, and tax /"umls.            Alleged intention of plaintiff and decedent to
Palacios v. Robbins (App. 4 Dist. 2003) 2003           later enter into a ceremonial marriage in
WL 21502371, Unreported, rehearing ave,··              church was not inconsistent with alleged prior
ruled, review denied, rehearing of petition for        common-law marriage. McIlveen v. M(.:Ilveen,
"eview denied. Divorce!P 124.2                         1960,332 S.W.2d t 13. Marriage ~ I3
20. Consent                                                   Whel'e relationship between parties was illicit
                                                           in origin but there has been change in circum-
  Consent of the parties to be husband and                 .stances, subsequent common-law marriage may
wife, and not merely living together, constitutes          be shown circumstantiallv; however, facts must
a common-law marriage. Bargna v. Bargna                    be such as to exclude i~ference that previous
(Civ.App, 1910) 127 S.W. 1156, Marriage <P                 illicit arrangement continued and must show
18                                          -              new matrimonial intent. Howard v. Howard
  The mutual consent of the parties is necessary           (Civ.App. 1970) 459 S.W.2d 901. Marriage ~
to the creation of the marriage relation; the              50(5)
cOntract being a civil contract in that a church
ordinance or rite is not required. Grigsby v.              22. Recognition by others
Reib (Sup. 1913) 105 Tex. 597,153 S.W. 1124,                 Recognition of parties as husband and wife by
Am.Ann.Cas.I915C,10I1. Marriage<p 18                       neighbors is not essential to constitute a valid
                                                      88
THE MARRIAGE RELATIONSHIP                                                                § 2.401
Ch. 2                                                                                       Note 25

common-law marriage. Brooks v. Hancock              for widow benefits with Social Securitv Admin-
(eiY.App. 1923) 256 S.W. 296. Marriage ( p 22       istration one month after murder was 'sufficient
                                                    to satisfy requirement that she -commence ap-
23. Capacity to marry                               propriate proceeding to prove her status as
  In order to establish a valid marriage, the       common-law spouse within one year of victim's
parties must possess the capacity to malT}'. Es-    death, precluding summary judgment for apart-
parza v. Esparza (Civ.App. 1964) 382 S.W.2d         ment complex owners and security service on
162. Marriage <3=> 4.1                              individual wrongful death claims asserted by
                                                    allel2:ed common-law 'wife of victim of murder
24. Conduct or actions of parties, generally        Ihal~ W;:lS committed in .complex. Nava \'. Reddy
    Common-law marriage claimed to have been        Partnership/Quail Chase (App. 1 Dist. 1999) 988
contracted in proximity to county clerk's office S.W.2d 346. Judgment (9181(7)
and churches should be reviewed with can: by
court and should not receive judicial sanction if 25. Prior marriages, generally
conduct of partie:-; does not show clearly an         In <l woman's action for a wrongful death of
honorable abiding by agreement before eyes of her alleged common-law husband evidence \Va::;
their world of associates and contacts.            sufficient to show that deceased was the lawful
McChesnev v. Johnson (Civ.App. 1934) 79            husband of another, so that plaintiff was not his
S.W.2d 658. Marriage €= 200)                       common-law wife. Lopez v. Missouri. K. & T.
    Evidence of the conduct of the parties and     Ry. Co. of Texas (Civ.App. 1920) 222 S.W. 695,
general reputation in community was sufficient     errol" dismissed. Marriage <3=> "50(1)
to establish the existence of a common-law mar-       In a will contest, evidence was sufficient to
riage between defendant and deceased at time: Sl1PPOi"t a finding that an alleged prior husband
of deceased's death, so as to entitle ddenci<mt to of contestant, who was contesting as wife       or
her rights as widow. Folse v. Monroe (Civ.App.     deceased, was a married man, and had induccJ
 1945) 190 S.W.2d 604, error refused. Marriage     contestant to marry him, but that no legal 111<'11"-
IS=> 50(1)                                         riage was consum~ated. Clover v. Clovel' (Ci\'.
    proof that parties lived together under the App. 1920) 224 S.W. 916, error refused. Mal"-
 same name, introducing each other as husband riage IS=> 50{ 1)
 and wife re::;pectively, and otherwise conducting     Fact that insured permitted life policies to
 themselves as husband and wife until death of continue to remain payable to wife after divorce
 the male member of the union, was sufficient to with full knowledge that his life was being
 establish a "common law marJ"iage". Baker v. sought by others was circumstance from which
 Mays & Mays (Civ.App. 1946) 199 S.W.2d 279, :mbsequent common~law marriage after divorce
 dismissed. Marriage €= 50(4); MalTiage IS=> could be inferred, giving wife insurable interest
 50(5)                                              in insured at time of his death. Sharp v. Ameri-
    Alleged common~law wife's act in leaving hus~ can Nat. Ins. Co. (Civ.App. 1939) 126 S.W.2d
 band and marrying another rebutted any infer~      50. Marriage €= 50( I)
 ence that might be drawn from her course of           Opinion of witnesses as to reputation in com-
 conduct with alleged husband, if it could be munity regarding marital status of parties was
 called favorable to her. Middlebrook v. Wide-      inadmissible in view of alleged common-law
 man (Civ.App. 1947) 203 S.W.2d 686. Mar· wife's testimony that she had been married
 riage IS=> 40(10)                                  twice, first to husband by ceremonial marriage
    An isolated reference bv woman to man with pdor to alleged common law marriage and then
 whom she wa::; living as her husband was in::;uf-  to another subsequent thereto, since such lesti-
 ficient to establish a common law marriage.        mony negatived existence of common-law mar-
 Tijerina v. Botello (Civ.App. 1947) 207 S.W.2d     riage.    Middlebrook v. Wideman (Civ.App.
 136. Marriage IS=> 13                               1947) 203 S.W.2d 686. Marriage €= 48
    Evidence that putative wife applied for wid-       1n insurers' stakeholder's suit to determine
 ow's benefits from the Social Security Adminis- whether beneficiary or administrator of insured,
 tration within the limitations period was insuf- who was allegedly beneficiary's common law
  fident to prove the existence of an informal wife, was entitled to insurance proceeds, evi-
  marriage, where none of the elements required      dence that insured and benefician' had been
  by Texas law had to be proven to obtain wid-       married to or had lived with variou~s other per·
  ow's benefits, and no proceeding was conducl~ sons, that benefiCiary had a living wife when he
  ed to establish the existence of those elements. commenced living with insured, and that they
  Villegas v. Griffin Industries (App. 13 Disi. lived together for several years, sustained find-
  1998) 975 S.W.2d 745, review denied. Mar- ing and judgment that no common-law mar-
  riage €= 50(1)                                     riage existed. Tijerina v. Botello (Civ.App.
     Genuine issues of material fact existed as to   1947) 207 S.W.2d 136. Insurance €= 3496;
  whether purported widow's filing of application    Interpleader €= 29
                                                   89
§ 2.401                                                    THE MARRIAGE RELATIONSHIP
Note 25                                                                                        Title I
   Evidence, viewed in light of strong presump-        in such proceedings is legitimate government
tion in favor of validity of marriage shown to         interest, statute was not rationally related to
have been contracted, that decedent's first wife.      accomplishment of that interest, in that it im~
eight months before his sudden death, sent let-        po::;ed severe penalty of extinguishment of cou~
ter to county clerk inquiring as to whether her        pie's marital property rights and endangerment
first husband had remarried, and that county           of legitimacy of their children when couple was
records of trials and proceedings were con-            informally married without like penalty being
cededly incomplete, supported finding of jury          imposed on formally married couples, and one-
that decedent's first marriage had been dis-           vear period was too short. White v. State Fann
solved before he contracted subsequent com-            Mut. Aula. Ins. Co., E.D.Tex.1995, 907 F.Supp.
mon-law marriage. Pacific Emp. Indem. Co. v.           1012. Constitutional Law e= 249(3); Limita-
Aguirre (Civ.App. 1968) 431 S.W.2d 33, ref.            tion Of Actions <P 4(2)
n.Le. Marriage €= 50(1)                                   Slate could not rely on evidence of defen-
      Evidence as to conduct and intentions of de-     dant's previous common~law marriage to negate
  cedent and pUflJorted common-law wife after          application of spousal privilege to defendant's
  decedent's divorce from third party was suffi-       spouse at time of trial. where common-law mar-
  cient to establish existence of common~law mar~      riage ended due to statute of limitations prior to
  riage, and such conclusion was not precluded         date state attempted to prove common-law mar-
 by evidence of agreement to have ceremonial           riage. Riley v. State (App. 3 Dist. 1993) 849
  marriage at definite future date. Howard v.          S.W.2d 901, petition for discretionary review
  Howard (Civ.App. 1970) 459 S.W.2d 901. Mar~          refused. Witnesses €=> 189
  riage e= 50(1)                                           Requirement that alleged common~law wife
      Where alleged common~law wife and de~            initiate proceeding to establish existence of mar-
 ceased began living together and holding them~        riage no later than one year after alleged mari~
 selves out as husband and wife in Texas, dc~          tal relationship ends is statute of limitations,
 ceased was already married at such time, the          and not jurisdictional bar, which was waived by
 alleged common~law wife and deceased moved            alleged common-law husband's failure to timely
 to California and continued their relationship,       assert a limitations defense. Matter of Marriage
 deceased subsequently obtained divorce from           of Collins (App. 7 Dist. 1994) 870 S.W.2d 682,
 his first wife and died in California, no marriage    rehearing overruled, writ denied, rehearing of
 between deceased and the alleged common-law           writ of error overruled. Limitation Of Actions
 wife was ever contracted or celebrated in Cali~       e= 165; Limitation Of Actions e= 182(5)
 fornia nor contracted in Texas after impediment          One-year limitations period in which to bring
 of prior marriage was removed, and thus the           action for divorce based on alleged common-
 alleged common-law wife was neither de-               law marriage did not commence until parties
 ceased's wife nor an heir of his estate. Brad~        stopped cohabitating. Georgiades v. Di Fer-
 dock v. Taylor (Civ.App. 1979) 592 S.W.2d 40,         rante (App. 14 Dist. 1994) 871 S.W.2d 878,
 reL n.r.e.. Marriage e= 54(1)                         I-ehearing denied, writ denied, rehearing of writ
      Where woman claiming common-law mar-             of error overruled. Limitation Of Actions <P 43
 riage admitted that she had undergone religious           Applicability to wrongful death and survival
 marriage ceremony in Mexico but claimed that          actions of limitations period for asserting com-
such ceremony did not establish valid Mexican          mon-law marriage, and any tolling of such limi-
 marriage, woman's failure to prove dissolution        tations bar, were not issues before probate court
of that marriage stood as an impediment to a           in action by murder victim's parents for decla-
valid common-law marriage in Texas. Franklin           mtlon of heirship, despite pUflJorted common-
..... Smalldridge (Civ.App. 1981) 616 S.W.2d 655.      law husband's claim that probate proceeding
Marriage e= 11                                         was only to determine who had right to bring
                                                       \vrongful death and survival claims. Villages of
26. Limitations                                        GI-eenbdar v. Torres (App. 1 Dist. 1994) 874
  Applicability of former version of Texas stat~       S.W.2d 259, rehearing denied, writ denied. De~
ute imposing one~year limitations period for           scent And Distribution e= 71 (7)
proceedings in which common-law marriage is                Purported husband of murder victim had af-
to be proved is not limited to domestic relations       firmative duty to bring action within one year of
cases. White v. State Farm Mut. Auto. Ins. Co.,         victim's death to establish existence of common-
E.D.Tex.1995, 907 F.Supp. 1012. Marriage e=             law matTiage and, thus, purported husband was
55                                                      not in purely defensive posture in asserting
  Former version of Texas statute imposing              marriage to contest parent's action seeking dec-
one-year limitations period [or proceedings in          laration of heirship and parents could assert
which common-law marriage is to be proved is            limitations period to defeat purported husband's
unconstitutional violation of equal protection          contest of heirship. Villages of Greenbriar v.
clause; although limiting use of stale evidence         Torres (App. 1 Dist. 1994) 874 S.W,2d 259,
                                                      90
THE MARRIAGE RELATIONSHIP                                                                     § 2.401
Ch. 2                                                                                            Note 28
 rehearing denied, writ denied. Limitation or            mon-law .spOllses bring wrongful death actions.
 Actions ~ 40( I)                                        Fuentes v. TransAmerican Natural Gas Corp.
    Tolling statute for limitations periods applica-     (App.4 Dist. 1996) 933 S.W.2d 624, rehearing
 ble to actions in favor of decedents could not be       overruled, writ granted, reversed 962 S.W.2d
 used by murder victim's purported husband to            28. Death ~ 37
 toll limitations period for his personal benefit to        Statute of limitations for proving an informal
 allow him to assel1 common-law marria!!1? so he         marriage must be strictly adhered to; when the
 could recover as victim's heir and as r~prcsen­         time period expire.s with no proceeding to prove
 tative of estate. Villaees of Greenbriar \". Torrt'~    the existence of an informal marriage having
 (App. J Dis!. 1994) 8~74 S.W.2d 259, l"ehc<lring        been instituted, the party asserting the informal
 denied, writ denied. Limitation Of Actions <>           marriage is barred from proving it. Villegas v.
 80; Limitation or Actions ~ 174( 1)                     Griffin Industdcs (App. 13 Dis!. 1998) 975
    Failure of parents of murdel" victim to prcvi-       S.W.2d 745, review denied. Mardage ~ 55
ously challenge purported common-Jaw mar-                   Isslle of whether parties had informal mar-
riage of victim w.as not fnlUdulcl1t concealment         ria£t' wa~ moot, and thus, trial court was with-
and did not prevent parents from asserting Iimi·         out jurisdiction to hear petitioner's action for
tations bar to purported husband's contest of            dedar<ltOJ)' judgment that the parties had ncver
parents application for declaration of heirship;         been married, where petitioner's testimony es-
purported husband had responsibility to comply           tablished that he had already become time-
with limitations period for asserting claim of           barred from proving the existence of the infor-
common-law mortgage regardless of t.:onduct of           mal malTiage, and there was no live controvcrsv
parents. Villages of Greenbriar v. Torres (App.          as 10 whether the informal marriage had evc'r
1 Dist. 1994) 874 S.W.2d 259, n.:hearinl! denied,        existed. Lavely v. Heafner (App. 14 Dbl. 1998)
writ denied. Limitation Of Actions ~ 10412)              976 S.W.2d 896. Declaratory Judgment c:=
   Defendant who asserts existence of common-            92.1
law marriage fn>m a purdy defensive posture
rather than offensive posture is not precluded           27. Age requirements
from doing so by statute of limitations for estab-          Fifteen-year-old daughter of putative hus-
lishing existence of common-law marriages.               band's live-in girlfriend lacked the legal capaci·
State v. Mireles (App. 13 Dis!. 1995) 904 S.W.2d         ty to agree to become putative husband's wik
885, rehearing overruled, petition for di.scrc-          as required to establish a common-law or infor-
tionary review refused. Marriage ~ 5S                    mal marriage; Family Code stated that a person
   Version of .statute dealing with timing of at.:-      under the age of ] 8 could not be a part)' to an
tions to prove informal marriage in effect at            informal man·jage. Kingery v. Hintz (App. 14
time of decedent's death provided limitations            Dist. 2003) 124 S.W.3d 875, rehearing over-
mechanism that would shorten time within                 I'uled, mandamus denied. Marriage ~ 5
which common-law wife was entitled to file                  Minor's common-law marriage prior to enact-
wrongful death claim premised on medical mal-            ment of statute that prohibited a minor from
practice and, in view of direct conflict with            being a party to an informal, or common-law,
malpractice statute, latter statute controlled.          marriage was voidable until minor died or
Shepherd v. Ledford (App. 2 Dist. 1996) 926              reached age of majority, for purpose of heir.ship
S.W.2d 405, rehearing overruled, writ granted,           proceeding brought by minor's purported hus-
affirmed and remanded 962 S.W.2d 28. Death               band after minor's death. Creel v. Martinez
~39                                                      (App. J Disl. 2004) 176 S.W.3d 516, rehearing
   Upon expiration of time limitation established        overruled, review denied. Marriage ~ 54( I)
under prior version of statute dealing with ac-             Males under 19 years of age, but over 16
tions to prove informal marriage, subsequent             years of age, and females under 18 years of age,
claim of existence of common-law marriage is             but over 14 yean; of age, whether or not they
barred; moreover, such rule is not limited to            have parental consent, may execute a declara-
divorce actions and, unless negated by conflict-         tion of informal marriage pursuant to the provi-
ing language of another statute, plea based on           sions of § 1.92 and this section. Op.Atty.Gen.
liniitation of statute could be available in any         1969. No. M-S02.
legal proceeding to bar proof that common-law               Males under 16 years of age and females
maniage existed. Shepherd v. Ledford (App. 2             under 14 years of age may not execute a decla-
Dist. 1996) 926 S.W.2d 405, rehearing over-              ration of informal maniage pursuant to the
ruled, writ granted, affirmed and remanded 962           provisions of § 1.92 and this section. Op.Atty.
S.W.2d 28. Marriage <&=> S5                              Gen.1969. No. M-S02.
   Former one~year statute of limitations for
proving informal or common-law marriages                 28. Impediments.
does not supplant two-year statute of limitations          If impediment to creation of lawful marriage
under Wrongful Death Act when- alleged com-              between parties exists, as when one is married
                                                    91
§ 2.401                                                  THE MARRIAGE RELATIONSHIP
Note 28                                                                                        Title I
to another, or where one is under any other              If the parties had in truth and in fact entered
lawful disability. there can be no com~on-law        into a common-law marriage as alleged by the
marriage even if necessary elements are proved.      alleged common-law wife, such status or rela-
Howard v. Howard (Civ.App. 1970) 459 S.W.2d          tionship could be dissolved only by death Or
90 I. MalTiage €=;> 4.1                              divorce and could not be dissolved by estoppel.
   In addition to the statutory requirements to      Williams v. Williams (Civ.App. 1960) 336
t!stablish a valid informal marriage, the parties    S.W.2d 757, error dismissed. Marriage -e=> 36
must possess the legal capacity to marry, and           Neither state nor public policy concerns pre-
thefe must not be any legal impediment prohib-       vented dismissal with prejudice of claim assert-
iting the marriage contract. Villegas v. Griffin     ing .existence of common-law marriage from
Industries (App. 13 Dist. 1998) 975 S.W.2d 745,      estopping subsequent actions claiming existence
review denied. Marriage 0$=> 4.1                     of common-law marriage. Mossier v. Shields
                                                     (Sup. 1991) 818 S.W.2d 752, rehearing over-
29. Contacts with state                              ruled. Judgment <}::> 570(4)
  Absent evidence supporting finding that dece-
dent and the claimant, while in Texas, had a         31. Effect of common law marriage
present agreement to assume their relationship          A common-law marriage is sufficient to sus-
of husband and wife. as distinguished from an        tain a conviction of bigamy. Burks v. State
agreement to marry in the future, or a mutual        (Cr.App. 1906) SO Tex.Crim. 47, 94 S.W. 1040.
intention to hold themselves out in New Mexico       Marriage <i? 13
as being husband and wife, the couple's con-            Common-law marriage produces same legal
tacts with Texas were insufficient to establish      consequences as a ceremonial marriage. Wha-
the basis of a valid common-law marria!!e in         ley v. Peat, 1964, 377 S.W.2d 855, ref. n,r.e ..
Texas. In re Bivians' Estate, 1982, 98 N.M.          Marriage <i? 13
722,652 P.2d 744, certiorari quashed 98 N.M.            Since common-law marriage is recognized as
762,652 P.ld 1213. Marriage <;;::> 50(1)             valid marriage by Texas, such relationship
   That parties repeated their marriage vows to       would terminate widow's death benefits under
each other while they were staying for a day or      Texas' Workers' Compensation Act. which pro-
two at hotel in Texas was insufficient to estab-      vides for termination of death benefits after
lish significant contacts with state of Texas for     widow's remarriage. Texas Employers' Ins.
purposes of common-law marriage where par-            Ass'n v. BOnlm (App. 4 Dist. 1992) 834 S.W.2d
lies were not residents of Texas. Matter of           395, writ denied. Workers' Compensation <i?
Lamb's Estate, 1982, 99 N.M. 157, 655 P.2d            496
 1001. Marriage<i? 13
                                                     32. Tennination
30. Estoppel                                            Under Texas law, once common-law relation-
   Where alleged common-law wife during mar-         ship exists. it is treated with same dignity as
dage relationship with deceased conducted all        ceremonial marriage and may only terminate by
of her affairs in her own name as feme sale,         death, divorce or annulment. White v. State
paid poll tax in her own name as feme sale, and      Farm Mut. Auto. Ins. Co., E.D.Tex.1995, 907
swore to renditions of property in her own           F.Supp. 1012. Marriage <i? 1
name as feme sale, and otherwise indicated that        There is no "common-law divorce" in Texas;
she was feme sale, such facts did not estop          mere passage of time and ceasing of cohabita-
alleged wife from claiming valid common-law          tion will not senoe to terminate common-law
marriage with deceased, since acts of wife were      marriage once it is in existence. White v, State
merely evidentiary on the issue of common-law        Farm Mut. Auto. Ins. Co., E.D.Tex.1995, 907
marriage. Adams v. Adams (Civ.App. 1939) 132         F.Supp. 1012. Divorce.;p 1; Marriage os=- 1
S.W.2d 497. Marriage.;p 36                              Relationship between purported common-law
   In aelion for divorce from an alleged com-        spouses will be considered to have "ended" on
mon-law marriage plaintiff was not estopped          date on which cohabitation ceases, for purposes
from claiming marriage by her deed to the            of former version of Texas statute imposing
alleged husband in which she recited she was a       limitations period for proceedings in which
widow which was inconsistent with her claim of       common~law marriage is to be proved of one
a common-law marriage on the date specified,         year from end of relationship. White v. State
where the declaration only contradicted plain-        Farm Mut. Auto. Ins. Co., E.D.Tex.1995, 907
tiff's other testimony relative to her common-        F.Supp. 1012. Limitation Of Actions <i? 61
law marriage to the defendant and hence the
issue of common-law marriage should have                 33. Putative marriage or spouse
been presented to the jury. Williams v.                    "Putative spouse" is one thought to be spouse
Williams (Civ.App. 1960) 336 S.W.2d 757, error           of another in marriage, in opposition to which
dismissed. Marriage.;p 36                                there are impediments. Weaver v. State (App.
                                                    92
THE MARRIAGE RELATIONSHIP                                                                 § 2.401
                                                                                             Note 37
Ch. 2
14 Dist. 1993) 855 S.W.2d J 16. Marriage ([?         evidence showing that the parties lived together
                                                     professedly as husband and wife. and were so
54(1)
                                                     recognized by the community, but such evi+
   "Putative marriage" is one in \','hich at least   dencc fails to establish the fact of marriage
one of the parties believes himself 10 be mar-       conclusivel\' where there is also evidence or" a
ried, but because of some encumbrance they are       latet- sepa(ation, and that one of the parties
not legally married, either by ceremony or ~om­      thet-eafter married another by a ceremonial
mon law. Weaverv. State (App. 14 Dist. 1993)          tllClrriage: the presumption of common+law
855 S.W.2d 116. Marriage e=> 54( 1)                   I1wrriage from habit and reputation being over-
   Texas law recognizes putative nUIlTi<lges pri-    come by proof of the ceremonial marriage.
marily for purpose of administering equity in        Walton v. Walton, 1921, 228 S.W. 921.
property and probate disputes and reco!!nizL's            Cohabitation and repute do not constitute a
such n~arriages in child custody or paternity         marriage. but an: only evidence, when relation-
suits. Weaver v. State (App. 14 DisC 1993) 855        ship is not meretricious. tending to raise a pre-
S.W.2d 116. Marriagc~54(1)                            sumption of more or less strength according to
   If putative spouse is unav,:an.' of previol1s un-  cin:umstances. U.S. Fidelitv & Guarantv Co. v.
dissolved marriage or other impcJimcIlt, good         Dowdle (eiv.App. 1924) 269 S.W. 119: Mar-
faith is preslinled. Weaver \" Stall' (Ap,;, 14       riage oS:=> 22
Dis!. 1993) 855 S. W.2d 116. Mal'riagl-' ( ? 54( I)
                                                          Reputation and cohabitation at best are onl\'
34. Husband and wife privilege                        pn::sumptive proofs of common-law marriag~,
                                                      and where either of those grounds fail, court
   Once common-law marriagl-' ha!'i been l'!'itab-
                                                      should not allow presumption of marriage to be
lished, it is generall)' given same legal signifi-
                                                       built on the other. McArthur v. Hall (Civ.App.
cance as ceremonial marriage and by definition
                                                       1943) 169 S.W.2d 724, error refused. Marriage
this includes privilege not 10 1I.'stify against the
                                                       <? 40(4)
other spouse. Weaver v_ State (App. 14 Dis1.
1993) 855 S.W.2d 116. Man-iage <3=> 1: Wit·                A marriage once established is presumed to
nesses <:? 189                                         l-'ontinue until dissolution is established bv (.·d-
    Absent proof of ceremonial OJ' common-law          de nee. Zieben v. Krakower, 1961, 346 S:W.2d
 marriage recognized as legal man-iage hy law,         401, ref. n.r.e .. Marriage oS:=> 40(8)
 privilege not to testify against one's spouse does        Though common law marriage is not recog-
 not extend to putative marriages. Weaver v.            nized in Louisiana, presumption of innocence to
 State (App. 14 Dis!. 1993) 855 S.W.2d J 16.           SUpp0l1 putative marriage producing civil ef-
 Witnesses IS=> 189                                     fects is so strong as to require clear and positive
    Husband-wife privilege applied to testimony         evidence to overcome it. Boudreaux v. Tavlor
 of common-law wife since her relationship with         (Civ.App. 1962) 353 S.W.2d 901. Man'iag~ oS:=>
 defendant complied with common-law marriage            54(1)
 requirements under this section. State v.                 Good faith of deceased who was competent to
 Wheeler. J 980. 95 N.M. 378. 622 P.2d 283.             enter into maniage with plaintiffs mother and
 Witnesses <:? 63                                       did enter into common-law marriage with hel'
                                                        was presumed. Whaley v. Peat, 1964, 377
 35. Marital heirship rights                             S.W.2d 855. ref. n.r.e .. Marriage I$:=> 40(1)
    Common-law husband of minor did not have                If proceeding in which marriage is to be
 vested rights arising from common-law mar-              proved is not begun before second anniversary
 riage to prevent retroactive application of stat-       of date on which parties separated and ceased
 ute prohibiting minor from being: a party to            living together, there is rebuttable presumption
 common-law marriage, for purpose of heirship            that they did not enter into agreement to be
  proceeding brought by husband afttT minor's            married. Shepherd v. Ledford (App. 2 Dis\.
  death; common-law marriage with minor 'was              1996) 926 S.W.2d 405. rehearing overruled,
  voidable, minor died before reaching age of writ granted, affirmed and remanded 962
  majority and vesting husband's maril;l right:;.        S.W.2d 28. Marriage IS=> 20(1); Marriage oS:=>
  and minor died after enactment of statute.             40(1)
  Creel v. Martinez (App. 1 Dh;\. 2004) 176
  S.W.3d 516, rehearing overruled. review de·             37. __ Ceremonial marriage, presumptions
  nied. Constitutional Law ~ 190; Marriage ~                 Presumption of validity of a ceremonial mar-
  5                                                       riage is stronger than that of a previous com-
                                                          mon.!aw marriage. Rosetta v. Rosetta (Civ.
  36, Presumptions-In general                             App. 1975) 525 S.W.2d 255. Marriage <to> 40(9)
     Marriage relations are based either on _cere-
   monial celebration or on an actual agreement,             Common-law wife adequately demonstrated
   and a common-law marriage, in absence of               continuing existence of her marriage to hus~
   conflicting testimony, may be presumed fron)           band by showing that he had not been divorced
                                                       93
§ 2.401                                                        THE MARRIAGE RELATIONSHIP
Note 37                                                                                           Title 1
from her in place where he always lived, and              its inception. Howard v. Howard (Civ.App.
thus common-law wife rebutted presumption of              1970) 459 S.W.2d 901. Marriage eo 40(4)
validity of husband's subsequent ceremonial
malTiage to another woman. Rodriguez v. Ava-              40. Burden of proof
los (eiv.App. 1978) 567 S.W.2d 85. MalTiage                  Under Texas law, existence of common-law
eo 40(10)                                                 marriage is question of fact, with burden of
                                                          proof being on party seeking to establish the
 38. - - Prior marriage, presumptions                     marriage. White v. State Farm Mut. Auto. Ins.
    Where man had living wife when he com-                Co., E.D.Tex.199S, 907 F.Supp. 1012. Mar-
 menced living with another woman, the new                riage e=> 40.1 (I); Marriage €;::I S I
 n:!latiollship was illicit in its origin and no legal       Insured's action against automobile insul"er to
 presumption of marriage arose. Tijerina v. Bo-
                                                          collect      uninsured/underinsured      motorist
 tello (eiv.App. 1947) 207 S.W.2d 136. Mar-
                                                          (UM/UIM) benefits for her alleged common-law
 riage <> 40(5)
                                                          husband as "family member" under her policy
    Admission in workmen's compensation pro-              following his death in car accident qualified as
 ceeding by person claiming to be the common-             "proceeding" in which common-law marriage
 law widow of decedent that she was separated             was to be proved, for purposes of former ver-
 and not divorced from her legal husband when             sion of Texas statute imposing one-year limita-
 she set up housekeeping with decedent coupled            tions period for such proceedings. White v.
 with the marriage certificate of decedent and            State Farm Mut. Auto. Ins. Co., E.D.Tex.199S,
 party claiming to be legal wife was sufficient to        907 F.Supp. 1011. Limitation or Actions e= 61
 negative presumption of validity of asserted
                                                             When marriage is put in issue, burden is upon
 common-law marriage between claimant and
                                                          party seeking support to establish at least a
 decedent. Home Indem. Co. v. Edwards (Civ.
                                                          prima fade case of marriage. Ex parte Threet
App. 1972) 488 S.W.2d 561, rcf. n.f.c. Mar-
                                                          (Sup. )%0) 160 Tex. 482. 333 S.W.2d 361.
 riage e=> 40(10)
                                                          Divorce <P 214(3)
    Presumption that the most recent marriage is
                                                             A subsequent marriage is presumed to be
a valid one continues until one proves the im-
                                                          valid, and burden of proving Lo contrary is upon
 pediment of a prior marriage and its continuing
                                                          party who questions validity of subsequent mar-
 validity. CI<lveria's Estate v. Claveria (Sup.
 1981) 615 S.W.2d 164. Marriage ~ 40(5)                   riage. Barker v. Lee (Civ.App. 1960) 337
                                                          S.W.2d 637. Marriage e=> 40(S); Marriage €;::I
    In regard to determining whether a valid              40.1(1)
common-law marriage has been in existence.
22:-year absence of an alleged husband before                Burden of proving that common-law mar-
wife entered into the alleged common-law mar-             riage was invalid was on husband. who attacked
riage. without any proof that the absent hus-             its validity in action by wife against husband for
band was still alive at such time crave ,·isl! to a       dissolution of marriage. O'Benar v. O'Benar
presumption of his death. Clav~ria's Estate v.            (Civ.App. 1966) 410 S.W.2d 214, error dis-
Claveria (Sup. 1981) 6lS S.W.2d 164. Mar-                  missed. Marriage ~ 40.1( I)
riage ~ 40(6)                                                Under this section, party asserting common-
   Where appellant's uncontroverted testimony             law marriage has burden to prove an agree-
proved his marriage without formalities to dece-           ment, express or implied, between the parties to
dent, presumption of validity of sueh malTiagc            become husband and wife, cohabitation pursu-
was stronger than and overcame presumption                ant to agreement, and holding out by the parties
of continuance of decedent's prior marriage.               that they are in fact husband and wife. Faglie
which was shown only by appellant's testimony             v. Williams (Civ.App. t 978) 569 S.W.2d SS7, ref.
that he believed her to be married to another             n.r.e.. Marriage e=> 40(4)
man when he began his relationship with her.                 Appellee, who filed application to declare
In Interest of R. L. (App. 2 Dist. 198 () 622             heirship in administration of estate of decedent
S.W.2d 660. Marriage ~ 40(10)                             t:iaiming ownership to part of estate as surviv-
   Act of one party to alleged common-law mar-             ing common-law wife of decedent, was not re-
riage in celebrating ceremonial marriage with              quired to offer conclusive evidence to establish
another person without having first obtained              cohabitation as common-law husband and wife,
divorce tends to discredit first relationship and          but rathel", was merely required to establish
show that it was not valid. Flores v. Flores               existence of common-law marriage by prepon-
(App. 10 Dist. 1993) 847 S.W.2d 648, rehearing             derance of the evidence. In re Glasco (Civ.App.
denied, writ denied. Marriage ~ 'SO( I)                    1981) 619 S.W.2d 567. Marriage eo 50(5)
                                                                Existence of common-law marriage is fact
39. - - Illicit origins, presumptions                         question with burden of proof on person seek-
  There can be no presumption of marriage                     ing to establish existence of marriage by pre·
when relationship between parties was illicit at              ponderance of the evidence. Weaver v. State
                                                         94
THE MARRIAGE RELATIONSHIP                                                                  § 2.401
                                                                                              Note 43
Ch.2
(App. 14 Dist.1993) 855 S.W.2d 116. Marriage          p<lrties' relations closely. Grant v. Grant (Civ.
( 9 50(1); Marriage <P 51
                                                      App. 1926) 286 S.W. 647. Marriage ( 9 13
    One seeking to establish existence of com-          Courts closely scrutinize common-law mar-
mon-law marriage has burden of proof. Du-             riage contracts. De Beque v. Ligon (Civ.App.
rand v. State (App. 1 DisL 1994) 881 S.W.2d           1926) 286 S.W. 749, error granted, reversed 292
569, review granted, vacated 958 S.W.2d 395,          S.W.157. Marriage ( 9 13
on remand 931 S.W.2d 25, rehearing o\'c!Tuied,           A claim of common-law marriage is closely
 petition for discretionary n."view refu.scd. Mar-    stTulini7xd by the courts and the agreement of
 riage e=> 40. J (1)                                  marriagt' should be specific on both sides.
    Burden of proof to establish existence of com-    Hightower v. State (CLApp. 1981) 629 S.W.2d
 mon-law marriage is on the one seeking 10            920. Marriage ~ SOC I)
 establish existence of such a marriage. Slate y.     43. Admissibility of evidence, generally
 Mireles (App. 13 Dist. 1995) 904 S.W.2d 885.
 rehearing overruled, petition for discretionary          Testimony of reputation in community re-
                                                      ~;:ll·ding man'iage status was properly rejected,
 review refused. Marriage ~ 40.1 (1)
                                                      when: witnesses had not qualified by staling
    Existence of common law m8rriagc is fact          that they knew such reputation or by giving
 question, with burden of proof on person seek-       facts whieh showed they were in position to
 ing to establish existence of marriage by pre-       express an opinion. Middlebrook v. Wideman
 ponderance of the evidence. Welch \.. State          (Civ.App. 1947) 203 S.W.2d 686. Marriage ~
 (App. 8 Dist. 1995) 908 S.W.2d 258, rehearing        48
 overruled. Marriage e:= 50( I); Marriage e=> 5 J
                                                          Anv error was harmless in trial court's rerusal
    putative \vife bore burden of proving that        to p~rmit putative spouse to make a bill or
 legal impediment to the establishment of a valid     exception on issue or admitting additional evi-
 informal marriage had been removed sonll,.,time      dence that she was deceased's common law
  before death of her alleged husband, where she       wife, in wrongful death and survival action, as
  admitted knowing of existing marriage at the         the evidcnce pmffered would not have affirma-
  time she claimed to have contracted an informal      tively shown deceased's prior marriage had tL']'-
  marriage and where she was informed by defen-        minated before his death. Villegas v. Griffin
  dants' pleadings that hel- capacity to act as a      Industries (App. 13 Dis!. 1998) 975 S.W.2d 745,
  surviving spouse was an issue. Villegas v. Grif-     review denied. Appeal And Error e=> lO74(3)
  fin Industries (App. 13 Dist. 1998) 975 S.W.2d           Evidence that murder victim's alleged widow
  745, review denied. Marriage e=> 40.1 (1)            filed application for widow benefits with Social
     Under Texas law, claim of common-I~lw mar-        Security Adminh;tration one month tafter mur-
  riage is closely scrutinized by courts. People v.    der was committed was properly lDefore trial
  Badgett (1995) !O C.l.4th 330. 41 Cal.Rptr.2d        court in widow's wrongful death action, for
   635, 895 P.2d 877. opinion on remand not for         purposes of showing that she satisfied require-
   publication. Maniage ~ II                            ment that she commence appropriate proceed-
                                                        ing to prove her status as common-law spouse
 41. Circumstantial evidence                            within one year of victim's death; alleged widow
   A common-law marriage may be proved by               filed her supplemental response 11 days before
 circumstantial evidence. Hill v. Smith (Civ.           second hearing on defendants' summary judg-
 App. 1944) 181 S.W.2d 1015. Marriage ""                ment motion, and trial court's overruling or
 50(I)                                                  defendants' objection to that evidence was the
   The existence of facts necessary to establish a      equivalent of granting leave to file it. Nava v.
 common-law marriage may be proved circum-              Reddy Partnership/Quail Chase (App. I Dist.
 stantially as well as otherwise. Middlebrook v.         1999) 988 S.W.2d 346. Judgment"" 185(3);
 Wideman (Civ.App. 1947) 203 S.W.2d 686.                 Judgment ~ 189
 Marriage ~ 50( 1)                                          Putative husband's failure to answer did not
    Statute establishing requirements for com-           operate to admit the material allegations in pu-
 mon-law marriage allows proof of agreement to           tative wife's divorce petition, which alleged all
  be married by direct evidence, by combination          the facts necessary to establish a common law
  of direct and circumstantial evidence, or by           marriage, precluding entry of default judgment
  wholly circumstantial evidence.       Flores~.         of divorce based on deemed admissions, absent
  Flores (App. 10 Dist. 1993) 847 S.W.2d 648.            any evidence to support allegations that she and
  rehearing denied. writ denied. M<lrriagt: ( 9           putative husband agreed to be married, lived
                                                          together as husband and wife, or represented to
  50(I)
                                                          others that they were married. (Per Anderson,
  42. Standard" of proof                                  J., with two judges concurring in the result
    When rights based on alleged common-law               only.) Osteen v. Osteen (App. 14 Dist. 2001) 38
  maniage are asserted, courts will scrutinize            S.W.3d 809. Divorce ~ 160
                                                      95
 § 2.401                                                   THE MARRIAGE RELATIONSHIP
 Note 44                                                                                         Title I
44. Sufficiency of evidence, generally                valid marital relationship upon the dissolution
   Allegation that, following divorce, the parties    of marriage between one of the parties and
remarried by agreement and continuouslv lived         another does not require that parties live togeth-
together as husband and wife and held each            er as husband and wife and represent them-
other out as such until husband's death was           selves to others as being married within state,
sufficient allegation of common~law marriage as       even though subd. (a)(2) of this section provides
against exception for uncertainty. Folse v.           that marriage may be proved by evidence that
Monroe (eiv.App. 1945) 190 S.W.2d 604, error          parties agreed to be married and thereafter
refused. Marriage <P 39                               lived together as husband and wife within state
   Evidence that defendant and divorced wife          and there represented to others that they were
registered at hotel as husband and wife and           married. Durr v. Newman (Civ.App. 1976) 537
spent night together, that she wrote affectionate     S.W.2d 323, ref. n.r.e .. Marriage ~ 54(1)
letters to him and that on one occasion defen-           Even though, inter alia, men and women
dant introduced her as his wife did not establish     stayed together for only three days after man's
a common-law marriage which would disqualify          prior marriage was dissolved by divorce and
her from testifying for the stale in murder pros·     even though nO agreement to become husband
ecution. Welch v. State (Cr.App. 1948) 151            and wife was ever made after date of such
Tex.Crim. 356, 207 S.W.2d 627. Marriage ~             divorce, evidence was sufficient to support trial
50(5)                                                 court's finding that man and woman had lived
    Evidence including showing that lS-year-old       together as husband and wife and represented
 girl and 20-year-old man who had sexual rela-        themselves to others as being married, in view
 tions had never moved into or occupied pUblicly      of evidence that woman considered herself as
 a common residence or room, and that she             man's wife, that parties had lived together be-
 continued using her own name and publicly            fore dissolution of decedent's prior marriage,
 represented to those at her school and at her        and that appellee had taken care of decedent's
 place of work that she was a single person, did      son. Durr v. Newman (Civ.App. 1976) 537
 not establish that the couple lived together as      S.W.2d 323, ref. n.r.e .. Marriage ~ 500)
 man and wife or that they held out to the public        Sufficient evidence, including abundant testi-
 that they were man and wife and hence was            mony that plaintiIT and her former husband
 insuffici~nt to establish common-law marriage,       lived together as man and wife and that each
 so that trial court in divorce action was without    represented to other persons that they were
 power to require the man to make support             married, supported finding that they had a valid
 payments pending the trial of divorce action.        common-law marriage after their 1937 ceremo-
 Ex parte Threet (Sup. 1960) 160 Tex. 482, 333        nial marriage ended in divorce in 1963. War-
 S.W.2d361. Marriage'Q;:::> 50(1)                     ren v. Kyle (Civ.App. 1978) 565 S.W.2d 313.
    Mexican wife's testimony through interpreter,     Marriage Q;:::> 50(1)
 on cross-examination, that there was no agree-          Where there was sufficient evidence to estab-
 ment to be married and that she was using            lish that in the ten months prior to their cere-
 husband's name as a convenience, referring to        monial wedding, man and woman cohabited
her agreement to ceremonial marriage sugges-          and held themselves out to public as husband
 tion by immigration authorities for passpOli         and wife, and where opposing party failed to
purposes, did not amount to a "judicial admi!:i-      cross-examine wife, wife's uncontradicted testi-
sian" and did not preclude finding that valid         mony, which established common-law mar-
marriage existed. Rosales v. Rosales (Civ.App.        riage, could be basis for a directed verdict in
 (1}64) 377 S.W.2d 661. Marriage G=> 50(4)            her favor. Collora v. Navarro (Sup. 1978) 574
   Testimony of witness in action seeking, inter      S.W.2d 65. MalTiage Q;:::> 51
alia, construction of a will, that witness claimed       An alleged spouse's testimony is not conclu-
to be wife of son of testatri;\: when witness         sive as to whether a common-law marriage has
consulted a physician in February, 1947, that         been in existence. Claveria's Estate v. Clave ria
witness and son of testatrix started living to-       (Sup. 1981) 615 S.W.2d 164. Marriage Q;:::>
gether as husband and wife in June, 1947, and             50(2)
that they held themselves out to the public as              Evidence that woman and man lived together
husband and wife as early as June, 1947, consti-          at time of purchase of van and that credit appli·
tuted some evidence of existence of an informal           cation for purchase of van listed woman as
marriage before beneficiary of testatrix was              "spouse" of man was factually sufficient to sup-
born. Wood v. Paulus (Civ.App. 1975) 524                  port implied finding that woman was man's
S.W.2d 749, ref. nX.e .. Marriage 1S=> 50(1)              common-law wife, so that woman, rather than
   Section 2.22 providing that relationship be-           man's parents, was entitled to van upon man's
tween man and woman who had lived together                death; parents' evidence that man did not al-
as husband and wife and represented them-                 ways reside with woman prior to purchase -of
selves to others as being married becomes a               van did not rebut evidence that man lived with
                                                     96
THE MARRIAGE RELATIONSHIP                                                                      § 2.401
 Ch. 2                                                                                            Note 44
  woman at time of purchase of van or that man          referred to witness, on bank document, as his
  and woman were holding themselves out to the          girH1'iend. Jasper v. State (CLApp. 2001) 61
  public as husband and wife a1 time of pure hast'      S.W.3d 413. Witne:-;ses e;::. 52(1)
  of van. Persons v. Persons (App. 1 Disc 1984)             Evidence was sufficient to establish date of
  666 S.W.2d 560, ref. n.Le .. Marriage e;::. 50(4);     marriage so as to support finding that common
  Marriage e;:::. 50(5)                                  law 01· infonnaJ marriage existed; date first
    Under this section, as well as the law of Ne\\'      adoption petition was filed was significant as
 York and Virl!inia, claimant was not wife of            date of marriage because petition was represen-
  deceased worker entitled to TCX3:-; workers'           tation by couple through their attorney th<lt they
  compensation death benefits, ..vhere there "'Vert'     were husband and wife. couple had been living
  no witnesses to private marriage ceremony in           together for five years. woman testified that she
 which claimant and deceased placed their               and man had agreement they were married
 hands on a Bible ami vowed thev werc -married,         every year, man toid attorney who prepared
 and where claimant did nol Ih;e together with          petition that he and woman were married, and
 deceased in Texas as husband and wife nor did          parties continued to represent that they were
 they represent themselves to other.'i ~.'i hm;band     llUlrrit'd when they later adopted second child.
 and wife in Texas. Williams Y. Homl' Indem.            Lewis Y. Anderson (App. 5 Dis\. 2005) 173
 Co. (App. 14 Dist. 1987) 722 S.W.2d 786.               S.W.3d 556, rehearing overruled, review de-
 Workers' Compensation ~ 433                            nied, rehearing of petition for review denied.
   Court of Appeals speciricall.y disappruves, fOl·     Marriage ~ 50(2); Marriage ~ 50(4); Mar-
 purpose of dctermining existence of common             riage4:==> 50(5)
 law marriage, placing legal signiricance beyond          Evidence supported finding that husband and
 evidentiary significance on woman's decision to        wife wcre not in a common law marriage from
 use or not to use a man's name, <lS manv mar-          inception of their relationship more than fiVl·
 ried women never adopt husband's sl;rname              years bdon: formal marriage, for purpose of
 and some unmarried women continue to use               determining whether home purchased during
 fanner spouse's surname or choose to adopt             period of cohabitation was separate property,
 man's name although not married to him.                even though two of their three children were
 Welch v. Stale (App.~8 DisL 1995) 908 S.W.2d           born befOi':"e formal marriage, husband testified
258, rehearing oven·uled. Marriage ~ 13                 that couple was "married" two or three years
    Common-law, or informal, marriage, must be          before formal marriage, and he admitted during
proved by evidence (I) that parties agreed to be        counseling that he and wife were in "common
 married, (2) that after agreement, they lived          law relationship" prior to formal marriage; hus-
together as husband and wife, and (3) that they         band testified that he did not refer to wife as his
represented to others that they werc married;           "wife" prior to formal marriage, couple .sepa-
proponent may prove agreement to be married             rated three or four times before they had chil-
by circumstantial as well as direct evidence.           dren, and wife admitted that during one such
Dalworth Trucking Co. v. Bulen (App. 6 Dist.            separation she had a relationship with another
 1996) 924 S.W.2d 728. rehearing overruled.             man and did not consider herself married.
Marriage ~ 13; Marriage ~ 500)                          Maldonado v. Maldonado (App. 4 Dist. 2003)
   In divorce action brought by alleged wife, to        2003 WL 21653876, Unreported. Husband And
withstand summary judgment on basis that cou-           Wife ~ 254
ple did not agree to be married. alleged wife              Evidence supported trial court's determina-
was required to present more than scinti1la of          tion that defendant and prosecution witness did
evidence to rebut statutory presumption that no         not have common-law marriage under Texas
common-law marriage existed, where alleged              law and, thus. that privilege for confidential
husband asserted that alleged wife failed to            communication between spouses did not apply
prove existence of common-law- marriage within          to bar testimony of witness; there was no spe-
two years after parties sep~lraled and' ceased          cific agreement to marry, thCj' had not informed
living together as required by statute. Amayc v.        their parents of any marriage even though they
Oravetz (App. 14 Dist. 2001) 57 S.W.3d 581,             lived \.:ith defendant's mother, nor did they hold
review denied. Judgmentog;::. 185.3(9).                 themselves out as married to any other r~lative
   Evidence did not establish that defendant and        or close friend while in Texas, and witness
witness had informal marriage, as basis for             stated that they did not actually marry because
spousal privilege in capital murder case; wit-          she feared commitment and did not want to go
ness, during her testimony, referred to defen-          to trouble of divorce if relationship did not work
dant as her boyfriend, reverend testified he con-       out. People v. Badgett (1995) 10 Cal.4th 330,
sidered defendant and witness to be a couple            41 Cal.Rptr.2d 635, 895 P.2d 877, opinion on
with intentions of getting married, defendant's         remand not for publication_ Witnesses ~ 189
father testified he would refer to witness as              Evidence supported trial court's determina-
defendant's "soon-to-be wife," and defendant            tion that defendant and prosecution witness did
                                                   97
 § 2.401                                                     THE MARRIAGE RELATIONSHIP
 Note 44                                                                                            Title 1
  not have common-law marriage under Texas                  for the jury. Middlebrook v. Wideman (Civ.
  law and, thus, that privilege for confidential            App. 1947) 203 S.W.2d 686. Marriage ~ 51
 communication between spouses did not apply
  to bar testimony of witness; there was no spe-              In proceeding to determine heirship, conflict-
 cific agreement to marry. they had not informed            ing evidenc~ presented question of fact as to
  their parents of any marriage even though they            whether decedent and one claiming to be his
 lived with defendant's mother, nor did they hold           widow by virtue of a C"ommon~law marriage had
  themsdves out as married to any other relative            held themselves out to the public generally as
 or close friend while in T\:!xas, and witness              husband and wife. notwithstanding evidence
 stated that they did not actually marry because            that claimant had represented to veterans' ad-
 .she f\:!ar\:!d commitment and did not want to go          ministration that she was the unremarried wid~
 to trouble of divorce jf relationship did not work         ow of another in order to collect pension. Oli-
 out. People v. Badgett (1995) 10 Cal.4th 330,              ver v. Landry's Estate, 1959.326 S.W.2d 923.
 41 Cal.Rptr.2d 635, 895 P.2d 877, opinion on               Marriage ~ 5 I
 remand not for publication. Witnesses e=> 189                Agreement to become husband and wife may
                                                            be inferred from fact of holding out by parties
 45. Jury questions                                         as husband and wife; but even when there is
    Existence or not of a common-law marriage               evidence of such holding out, it is for jury to
 is issue of fact to be determined by trier of fact.        decide whether agreell1ent to become husband
 Warren v. Kyle (Civ.App.1978) 565 S.W.2d 313;              and wife existed. Moore v. Jordan. 1959, 328
 Hightower v. State (Cr.App.198!) 629 S.W.2d                S.W.2d 343, ref. n.r.e .. Marriage <l'=> 22; Mar-
 920.                                                       riage ~ 51
   Where the only evidence relied on to prove                  Whether there was common-law marriage
marriage is of cohabitation and repute, then                was law question, improper for jury. Moore v.
reputation inconsistent with the matrimonial                Jordan, 1959.328 S.W.2d 343. ref. n.r.e .. Mar-
character of the parties is sufficient to make an           I'iage G=> 51
issue of fact. Clayton v. Haywood (eiv.App.
19111 63 Tex.Civ.App. 571, 133 S.W. 1082.                      In action presenting question of whether
Marriage ~ 51                                               plaintiff was common~Iaw wife of decedent.
                                                            wherein plaintilT testi fied among other things
   In a contest between two persons, each claim~
                                                            that empJovees where she worked knew her as
ing to be the lawful wife of deceased. for ap-
                                                            wife of decedent and that she had accounts at
pointment to administer his estate. evidence as
                                                            various stores in naInc: or decedent and there
to common-law marriage between deceased and
                                                            was other evidence as to holding tht!mselves out
contestant presented a jury question as to
                                                            as husband and wife, evidence was sufficient to
whether there was a marriage agreement. Wal-
                                                            require submission of case to jury. McIlveen v.
ton v. Walton, 1921. 228 S.W. 921. Marriage
<'? 51
                                                            McIlveen, 1960. 332 S_ W.2d 113. Marriage ¢:;>
                                                            51
   In suit to establish that plaintiff had been
common-law wife of deceased and was the.rebv                   In medical malpractice action. whether plain-
entitled to a division of his estate together with          tiff and decedent were common-law husband
a partition thereof, evidence regarding cohabi-             and wife was question for jury, where they
tation as man and wife and of holding each                  cohabited together continuously for nine~year
other out to the public as being husband ilml               period, and where there was evidence that they
wife was sufficient for jury. Garza v. Garza                held themselves out as husband and wife to
(Civ.App. 1937) 109 S.W.2d 1079. dismissed.                 public. Ortiz v. Santa Rosa Medical Center
Marriage G'=> 51                                            (App.4 Dist. 1985) 702 S.W.2d 701. ref. n,r.e.,
                                                            MalTiage ( p 5 I
   In action by one claiming to be decedent's
surviving common-law wife to recover propel1y                  Material question of fact, whether parties to
acqUired by decedent during marriage. evidence              alleged common~law nl.arriage had ever agreed
was sufficient to lake to jury question whether             to be married. pn!cluded entry of summary
common-law marriage, inclusive of necessary                 judgment in divorce action on basis that no
agreement to enter into it. existed between                 marriage existed. Grigsby v. Grigsby (App. 4
plaintiff and decedent, though plaintiff was in-            Dist. 1988) 757 S.W.2d 163. Judgment G'=>
competent to testify as to such agreement. Hill              181(20)
v. Smith (eiv.App. 1944) 181 S.W.2d 1015.                     Material question of fact. whether parties to
Marriage €;;> 51                                            alleged common~law marriage had held them·
   In trespass to try title wherein plaintiffs'             selves out to others as married, precluded entry
claim was based upon an alleged common-law                  of summary judgment in divorce action on basis
marriage between one of plaintiffs and deceased             that no marriage existed; evidence showed that
owner. evidence showing existence of the al-                others had addressed woman by man's sur-
leged common-law marriage was insufficient                  name, and that man had raised no objection.
                                                       98
THE MARRIAGE RELATIONSHIP                                                                 § 2.401
Ch. 2                                                                                        Note 48
Grigsby v. Grigsby (App. 4 Dist. 1988) 757           the omission of an entire element of common-
S.W.2d 163. Judgment <? 185.3(9)                     law marriage but. rather, a defective element;
                                                     therefore, when man objected to instruction,
 46. Instructions, generally                         appellate court was not required to reverse and
    Inclusion of term "new marriage" in special      render rather than reverse and remand for new
 issues submitted to jury as to existence of a       trial. Winfield v. Renfro (App. 1 Dist. 1991)
 common-law marriage between te~tator and            '821 S.W.2d 640, writ denied, rehearing of writ
principal beneficiary at any time aher their cer-    or errol" overruled, subsequent manda~us pro~
 emonial divorce operated to place a burden          ceeding 846 S.W.2d 920. Appeal And Error <?
 upon beneficiaT)1 which was not required 10          1175(1); Appeal And Error  *'  1177(5)
establish a common-law marria!!e when the               Trial court did not abuse its discretion in
public had no knowledge of the p~'ior marriage       gi\"ing jury instruction on common law mar-
or divorce and, hence, wa.s error requiring re-      riage that was consistent with applicable Family
versal for nt!w trial. Daniel v. Daniel (App. 9      Code pl'ovision and Texas Pattern JUI)' Charge,
Disc 1984) 676 S.W.2d 666, ref. n.Le .. Appeal       and -even if improperly given, the charge did not
And Error<91062.1; Marriage C1?S2                    result in an improper judgment; husband's re-
   Instructing jury that marriage "may" be           quested alternative instructions would have
proved by three-part test of this section was nol    amounted to impermissible comment by the tri-
error, where instruction listed elements of com-     al court on the weight to give e.yidence. Gane-
mon-law marriage in conjunctive, not disjunc-        san v. Vallabhaneni (App. 3 Dist 2002) 96
tive. Matter of Estate of Giessel (App. 1 DisC       S.W.3d 345, rehearing overruled, review de-
1987) 734 S.W.2d 27, ref. n.r.e .. Marriage ~        nied. Divorce €=> 148
52
   Broad form submission of elements of com-         47. Findings
mon-law marriage did not eXCUSl' jUl)' in.struc-        It was unnecessary for court to make express
tion's omission of the word "there" 01' the          finding that parties to action to dissolve com-
phrase "in Texas" as to clement fl'quiring that      mon-law marriage held themselves out as hus-
parties represent to others in state in which they   band and wife where evidence was undisputed
live that they were married where evidence on        that parties did hold themselves out as husband
issue of rep;'esentations to others in Texas that    and wife. O'Benar v. O'Benar (Civ.App. 1966)
they were married was close and contested.           410 S.W.2d 214, error dismissed. Trial o::p
Winfield v. Renfro (App. 1 Disl. 1991) 821           388(4)
S. W.2d 640, writ denied, rehearing of writ of
error overruled, subsequent mandamus pro-             48. Review
ceeding 846 S.W.2d 920. Trial ~ 260(5)                   Where two of the elements of common-law
   It was error to submit jury instruction which      marriage were expressly found by court, in ac-
set forth as elements of common-law marriage          tion by wife against husband to dissolve com-
mutual agreement to be husband and wife, liv-         mon-law marriage, favorably to wife, reviewing
ing together of parties in state as husband and       court presumed third element was found by
wife after agreement, and representation to oth-      court in such a way as to support judgment.
ers that parties were married; statutory ele-         O'Benar v. O'Benar (Civ.App. 1966) 410 S.W.2d
ments of common-law marriage required agree-          214, error dismissed. Divorce €==> 184(4)
ment by parties to be married, living together in        In absence of proper challenge of the suffi-
state as husband and wife after agreement that        ciency of evidence to support detennination by
they live together, and a representation "there"      trial court on issues concerning existence of
to others that they were married, and omission        common-law marriage, for purposes of delel··
of word "there" or phrase "in Texas" with             mining ownership of certain parcels of land,
respect to third element was important because        question whether common-law marriage existed
only two items of evidence suggested that man         between a certain man and woman was not
may have acqUiesced to being identified as be-        before Court of Civil Appeals on appeaL Faglie
ing married to woman, one of which occurred           v. Williams (Civ.App.1978) 569 S.W.2d 557, ref.
in Bahamas and most of time parties spent out         n.Le .. Appeal And Error ~ 219(1)
together was outside state. Winfield v. Renfro           Existence of agreement to be married, either
(App. 1 Dist. 1991) 821 S.W.2d 640. writ de·          express or implied, for purposes of detennina-
nied, rehearing of writ of error overruled, sub-      tion whether man and woman had entered COOl-
sequent mandamus proceeding 846 S.W.2d 920.           man-law marriage, as well as issues of cohabita-
Marriage €==> 13; Maniage €=> 52                      tion and common reputation, are questions of
   Omission of the phrase "in Texas" in jury          fact, determination of which on review, if prop-
instruction on element of _common-law mar-            erly presented, becomes conclusive in Court of
riage that parties must represent themselves to       Civil Appeals under Canst. Art. 5, § 6, and Ver-
others in state that they were married was not        non's Ann.Civ.Sl. art. 1820. Faglie'v. Williams
                                                 99
§ 2.401                                              THE MARRIAGE RELATIONSHIP
Note 48                                                                                    Title I
(Civ.App. 1978) 569 S.W.2d 557, ref. n.Le .. Ap·    termination of heirship; record contained testi-
peal And Error <s=> 1008.1(8.1); Marriage e::o 51   mony supporting the finding not only from de-
                                                    ceased's alleged common-law wife, but also
   Under the "no evidence" standard of review,      from deceased's father and other lay witnesses.
evidence was clearly sufficient to support the      Cain v. Whitlock (App. 14 Dist. 1987) 741
trial court's finding of common-law marriage,       S.W.2d 528. Descent And Distribution e:=:>
in action for appointment of executrix and de-      71(7); Executors And Administrators e:=:> 20(10)


§ 2.402. Declaration and Registration of Informal Marriage
  (a) A declaration of informal marriage must be signed on a form prescribed
by the bureau of vital statistics and provided by the county clerk. Each party to
the declaration shall provide the information required in the form.
  (b) The declaration form must contain:
   (I) a heading entitled "Declaration and Registration of Informal Marriage,
  _____ County, Texas";
    (2) spaces for each party's full name, including the woman's maiden
  surname, address, date of birth, place of birth, including city. county, and
  state, and social security number, if any;
    (3) a space for indicating the lype of document tendered by each party as
  proof of age and identity;
    (4) printed boxes for each party to check "true" or "false" in response to
  the following statement: "The other party is not related to me as:
       (A) an ancestor or descendant, by blood or adoption;
       (B) a brother or sister. of the whole or half blood or by adoption;
       (C) a parent's brother or sister, of the whole or half blood or by
    adoption;
      (D) a son or daughter of a brother or sister, of the whole or half blood or
    by adoption;
      (E) a current or former stepchild or stepparent; or
      (F) a son or daughter of a parent's brother or sister, of the whole or half
    blood or by adoption.";
   (5) a printed declaration and oath reading: "I SOLEMNLY SWEAR (OR
 AFFIRM) THAT WE, THE UNDERSIGNED, ARE MARRIED TO EACH
 OTHER BY VIRTUE OF THE FOLLOWING FACTS: ON OR ABOUT (DATE)
 WE AGREED TO BE MARRIED, AND AFTER THAT DATE WE LIVED
 TOGETHER AS HUSBAND AND WIFE AND IN THIS STATE WE REPRE-
 SENTED TO OTHERS THAT WE WERE MARRIED. SINCE THE DATE OF
 MARRIAGE TO THE OTHER PARTI I HAVE NOT BEEN MARRIED TO
 ANY OTHER PERSON. THIS DECLARATION IS TRUE AND THE INFOR-
 MATION IN IT WHICH I HAVE GIVEN IS CORRECT";
    (6) spaces immediately below the printed declaration and oath for the
  parties' signatures; and
   (7) a certificate of the county clerk that the parties made the declaration
 and oath and the place and date it was made.
                                      100
APPENDIX 5
    28    Tex.              962 SOUTH WESTERN REPORTER, 2d SERIES
                                                                                                            4. Death .;?38
                                                       ported spouses had valid common-law mar-
                                                                                                                   Former-Far
    Richard L. SHEPHERD, M.D., and Allan               riage relieved wife of burden to prove mar-
                                                                                                            elements onnfe
             Graham, M.D., Petitioners,                riage in order to establish standing to bring
                                                                                                            within oneyeat
                                                       wrongful death action for medical malprac-
                               v.                                                                            end did not CO!
                                                       tice; (3) no formal administration of estate
         Lahoma LEDFORD, Respondent.                                                                         planted by, Me
                                                       was required under circumstapces, and wife
                                                                                                             Improvement 1
    TRANSAMERICAN NATURAL GAS COR- thus had standing to bring medical malprac-                               ute of limitatio
     PORATION, Southwest Texas Services, tice suit on behalf of husband's estate; (4)                         action based on
,     Inc., L.T.V. Energy Products d/b/a Wil- trial court erred 'in refusing to strike for                    ed wife -could h'
      son Manufacturing, Continental Emsco cause prospective juror who had expressed                          heirship in ord,
                                              his
      Company d/b/a Wilson Manufacturing, ' \ bias against defendants in medical mal-                         eommon-law- -r
     Wilson-Wichita, Inc. d/b/a Wilson Man- practice action; and (5) purported wife's fail-                    purported h~'
      ufacturing, and Dana Corporation d/b/a ure to initiate proceeding to prove common-                       flied medical !
     Wilson Manufacturing, Petitioners,       law marriage within one year of purported                        Year limit':tio
                                              husband's death barred her from subse-                            Code § 1.9:
                        v.                    qoently offering any proof of that relation-                    . Ann.Texas Ci\
    Nancy, Rodriguez FUENTES, Respondent. ship to establish standing as surviviog spouse
                                              to bring suit under Wrongful Death Act.                          5.StipulatioJ
             ~ Nos. 91H1994, 96-1243.
                                                                                                                   "Stipulat
                 Supreme Court.,of.'1;,ex"ll.                Judgments of'Court of Appeals affirmed            eoncession   II
                                                      - lind rerriaIlgeq i~; part and reversed and ren-
                                -   j"-,- " ,",'.
                                    -~~.



                  Argued Aprll23;          i~97;        dered in part.
                                                                                                               parties or tl
                                                                                                               matter incide
                Decided ,JJln.. 29, 1998,                                                                             See pu
                                                           :H~bhi, .J.,:- filed iii opinion concurring in
         Rehearing Oved,;l~d March 13, 1998. _.                                                                     for other
                                                      ,part andcdissenting in part in which Phillips,               initions.
                                                        C.J., and Owen, J., joined.
                                                                                                                6. Stil'u\ati,
         Plaintiff claiming to be patient's com-
    mon-law wife brought wrongful death action                                                                       Stipulat
    based on medical malpractice. The 96th Dis-                                                                 valid commt       ,
                                                        1. Physicians and Surgeons      ~18.15                   band'~ deatJ     I
    trict Court, Tarrant County, entered judg-
    ment on jury verdict adverse to physicians.             Provision of Medical Liability and Insur-            parties and
    Physicians appealed. The Court of Appeals,          ance Improvement Act (MLIIA) barring any                .thus, becarr
    Dixon W. Hohnan, J., 926 S.w.2d 405, re-            health care liability claim unless flied within          riage and t
    versed and remanded for new trial. In a             two years from occurrence, notwithstanding               prove coml
    separate action, alleged conunon-Iaw spouse         any other law, is exclusive statute of limita-           tablish stm
    of decedent killed in drilling accident brought     tions for medical malpractice claims. Ver-               tion base(
    wrongful death f claim against several defen-       non's Ana.Texas Civ.St. art. 459Oi, § 10.01.             though w.
    dants. The 49th District Court, Zapata                                                                        barred frc
    County, Manuel R. Flores, J., granted sum-          2. Death ~31(1)                                           riage by f-
    mary judgment to defendants on limitations                                                                    quiring inl
                                                            To bring suit under Wrongful Death Act,               in one :
    grounds, and plaintiff appealed. The Court          party is required to prove that he or she was
    of Appeals, Phil Hardberger, J., 933 S.W.2d                                                                   V.T.C.A.,
                                                        deceased's spouse, child, or parent.                       Vernon's
    624, reversed and remanded. Applications            V.T.CA., Civil Practice & Remedies Code                    § 10.01.
    for writs of error were filed and cases consol-     § 71.004(a).
    idated. The Supreme Court, Baker, J., held                                                                     7. Execu
    that: (1) former family Code provision requir-      3. Death ~31(5)                                                Nol
    ing elements of informal marriage to be                                                                        required,
    proven within one year from end of relation-             Heirs at law can maintain survival suit
                                                                                                                   medical
    ship does not conflict with, and is not sup-        during four-year period allowed for institut-
                                                                                                                    band's e
    planted by, two-year limitations period under       ing administration proceedings if they allege
                                                                                                                    band 0"
    Medical Liability and Insurance Improve-            and prove that there is no administration
                                                                                                                    he died'
    ment Act (MLIIA) for medical malpractice or         pending and none necessary. V.T.CA., Civil                  diately j
    Wrongful Death Act; (2) stipulation that pur-       Practice & Remedies Code § 71.021(b).
                                                              SHEPHERD v. LEDFORD                                   Tex.       29
                                                              Clteas962 S.W.2d 28 (Tex. 1998)
    mon-law mar-      4. Death <'?38                                           estate's disposition and paid all debts.
    to prove mar-           Former Family Code provision requiring             V.A.T.S. Probate Code, § 38(b), par. 2.
    lding to bring     elements of informal- marriage to be proven
    lical malprac-                                                             8. Appeal and Error <'?200
                       within one year from time of relationship's
    tion of estate                                                                  When trial court refuses to disqualify
                       end did not conflict with, and was not sup-
   lces, and wife                                                              juror for bias or prejudice, complaining party
                       planted by, Medical Liability and Insurance
   ncal malprac-                                                               must show that error was harmful by advis-
                       Improvement Act's (MLIlA) two-year stat-
   I's estate; (4)                                                             ing trial court, before exercising its peremp-
                       ute of limitations governing wrongful death
   to strike for                                                               tory challenges, that court's denial ofchal-
                       action based on medical malpractice;, purport-
   ad expressed                                                                lenges for cause would force party to exhaust
                       ed wife could have filed proceeding to declare
    medical mal-                                                               its peremptory challenges and, that, after
                       heirship in order to establish existence· of her
   ed wife's fall-                                                             \lXercising its peremptory challenges, specific
                       common-law marriage within one' year -of
   Dve    commOll-                                                             objectionable jurors would still remain on
                       purported husband's death and then later
    of purported                                                               panel.      V.T.C.A.,    Government       Dode
                       filed medical malpractice action withill its 2-
                                                                               § 62.105(4).
    from subse-        year limitations p~riod. V.'I'.C.A., Family
   ;bat relation-      Code     § 1.91(b)· (Repealed);       Vernon's         9. Jury <'?105(1)
   !living Spouse    . Ann.TexasCiv.St. art. 4590i, § ro,O[.                       Prospective juror who had expressed< his
     Death Act.                                                               bias against defendants in medical malprac-
                      5. Stipulations <'?1
                                                                              tice action was disqualified as matter of law,
  eals affinned            "Stipulation" is agreement, admission,. or
                                                                              :and thus, trial court erred in refusing to.
  sed and ren-        concession made in, judicial proceeding :by
                                                                              strike prospective juror fot cause when de-
                     'parties or their attorneys respecting some
                                                                              fendants made showing that they would be
                      matter incident thereto.
  ~ncurring in                                                                forced to use peremptory strike on him that
                             See, publication Words and Phrases
  hich Phillips,           for other jud,icial cons~ructions and def-,        they would otherwise bave used on another
                           initions.                      <                   specific objectionable juror.
                       6. Stipulations <'?18(7)                           10. Death <'?38
                            Stipulation that purported spouses, had            Fonner Family Code provision requiring
  18.15                valid common-law marriage at time· of hus- elements of infonnal marriage to be prove.n
                       band's death was Bigned by counself6~;both within one year frQm time of relatiQnship:s
   rand Insur-
                     '·parties and was accepted by trial court and, ,end does not conflict with or supplant tWo-
   barring any
                     .thus, became conclusive on- existence Qf'mar- year statute of limitations governing wrong-
   med within
  vithstanding
                      riage and thereby relieved wife of burden;to ful de~th actions; purported spouse coul<j              file
                      prove common-law marriage in order'to7 eS- other proceeding. to establish existenceQf
  to of limita-
                      tablish standing to bring wrongful death ac- cQmmon-law marriage within on~ ye~, ~~f
 aims. Ver-
                      tion ba~e4, on _' ,medical :.,malpl:actkE1, even purported spouses death andthe!1 later ,ft,le
 'Oi, § 10,0[.
                      though wife otherwise would have been .wrongful death action within 2-year limi.~­
                      barred from establishing coriimon-law mar, tions period: . V.T.CA, Famlly Code
                      riage by foi(ner pI'ovision of.family code re- . § 1.91(\1) (Repealed); V.T.CA, CivllPrac~~e
 Death Act, ,         quiring informalmarTliige to beproveri witli- , & Remedies Code ~§ 16.003(b),71.004(a),
 Qr she was           in 'one yeaI' from :end. of, relationship.
                                                                          11. Marriage <'?56,1
r parent.             V.T£.A, Family Code § 1.91(bHRepeaied);
,dies Code            Vernon's. Ann.TexasCiv.St.·art;, ·4590i,                 Purported ;vife's failure tQ initiate pro-
                                                                          ceeding to prove common-law marriage with-
                                                                          in one year of relationship's, .end at time of
                     .7:  Executc>~~ and A~ini~tratc>rs~~t~r:!: purported husband's death, as requir¢ by
                       :' ,No,forIJ1?l. admi,ni.stratiqI1,oLest,atl'!:Wls f9",,";' provision of FaJJ;illy Code~ barr~dher
 lI'Vival suit        required, and wife thus had standing to bring from subsequently offering any proof of that
or institut-          medical malpr~cticesuit onbehj\lf dfhus: rel:i.tioh~p to eSUJ,llllshstanding'as .~tirvi"­
they allege           hand's.estate, urider"cfrcumstanc'es'     tllathU~7 irlg:spouse to ,bi:4)gsuit. ,\nder wtbhgfpl
linistration         band owne<:l only ,personal. property,a,t til1J.e Death "'ct. V:r.CA,'·Famlly Code § h91(b)
.CA, Civll            he die\l.intestate, tbat propert.\',vested imme- (Repealed); V~T.C.A.,Civll Practice &Reme,
1(b}.                 diately in wife, and that famlly had resolved dies 'C~cie. §§ 16.003(1); 7i.004(a).
                                                                                ','   ",        ~   <-."    -.~     -";~:n~,




                                t
      30 .Tex.           962 SOUTHWESTERN' .REPOIITER, 2d SERIES
                                        : ;~          -:,' in....."'·· '-"   -.~",<   -,'.I -',
      12. Death <iP7                                      tice. Lahoma Ledford sued Drs.' Richard                    rnept,a
           Purpose of Wrorikfui Death cAct is to )3hepherd and AlI;m.,Graham for the.wrongful                        ingtha
     provide means wher~~by . s1.lI'Viving, ~:P9us~~, 'death of her, alleged, common-law. hushand,                   a wrOI
     children, and. parel)!s S.an recover .~o~\()ss~f John .Ledford,.. The, medical malpracticeac-                   commo
     their family memb~.Y,T.C.A., Civi) Prac- tion resulted from the doctors' treatment of
     tice& Remedies Code} 7i',004(a):' . .             . Mr. Ledfard for, a,heart'condition. The jury
                                                        found. for Mrs. Ledford' on both caU!\es of
       Anthony M. Kuehler,.'Jellllifet. M." An-         ·'action.',The ·trial court,rendered ,judgment
     drews, Joseph M, Gallagher, Fort Worth, for ,on the verdict on the wrongfuLdeathdaim.                            Wh,
     Petitioners in No. 96--{)994..              ',J;   Howevel', ,the trialcourtcpartially granted the              med s'
                                                       'defendants' motion for judgment ,notwith-
       Jjavid G. McCrackeri/Allister ti, Waldrop,                                                                         (a)
                                                      ',standing the verdict on the survival .claim.                  . prO(
     Dalla:s, -Macey Reasone'r)Btokesj' Hoiistl1n,
  Michael V. Powell, Dallas; All~n R7IGrig,                         Affirri,jng th~trial couj1;:ln part, the court
                                                                                                                        won
  Corpus Christi, Robert H. Etnyre, Houston,                      of appeals held that sect;~n1.91(b) did .not             (J
, for Petitioners in No. 96-124;l.                               bar' Mrs. Ledford's .cause of action. The            .' b
        Margaret 1. Henning,)"ardsM. Calos, Wil-                  co~rt reasoned that s~tion'1.9i(b) contli:~t€d           ""c
     liam A. N€WI)1an, Bruce A. Pauley",Dallas,                   with the medical malpractice two~year stat-                   ,r:
     for Respolldent in No, 96-D994.    .    .                    ute of limitations for wrorlgfuldeath in sec-                 t
    James 'K. ,Jones,. Jr., Laredo, Alieia-,--C.                ,tion 10m of the. NlLlIA. The, court then
                                                                                                                     'C
                                                                                                                                ,
 Finley-Richter, San Antania,Arnulfo Gonza-                    "determined that se~tion 10.01 supplanted sec-                   I

 lez, Jr., Laredo, for' Respondent in No.. 96-                   tion 1.91(b) of the Family Code and held that                   I

 1243.                                                           Mrs. Ledford had two years to bring a                     (b)
                                                                 wrongful death action as the decedent's wife.         " be
   BAKER, Justice, d¢liyered the opinion of                      Additionally, the court of appeals reversed               m,
 the Court, in which GONZALEZ, ENOCH,                            the trial court's judgment notwithstanding                da
 SPECTOR and ABBOTT, Justices, JOin.' '                          the verdict on the survival claim. Thecourt               no
   '. In these two cases. we consider whether                   ,Qf appeals determined that Mrs. Ledfard did               19
 'former Family CodeSection 1.91(b) I conflicts                 have standing ta assert the survival action on         TEll
 with Medical Liability and Insurance Im-                       behalf of Mr. Ledford's estate. However,
                                                                                                                            L.
 provement Act ("MLIlA") section' 10.01 or                    · the court of appeals reversed and rema)lde,d
                                                                                                                       1.91'
 rex'!s Civil Practice and Remedies COdesec-                    the case fora new trial because the. district
                                                                                                                       miSE
 tion 16.003. We hold that section UH(b), as                   judge.did not disqualify a biased juror. 926
                                                                                                                       com
 it existed before the 1995 amendment, does                     S.w.2d405.
                                                                                                                          sell
 not conflict with either section 10.01 bf the                                                                            199~
 MLIlA 01- section 16.003 of the Texas Civil             B. Transamerican v. Fuentes                                      hist
Practice and Remedies Code. Accordingly,                                                                                  law
we affIrm the court of appeals' judgment in          Transameri:can v. Fuentes involve~ a
                                                                                                                          931
Shepherd v. Ledfard, 2 and reverse the' court · wrongful death claim for ordinary negligence.                             tior
of appeals' judgment in Transammcan v. On Octaber 15, 1993, Nancy Rodriguez                                               pro
Fuentes.                                           Fuentes filed this wrongful death action as
                                                                                                                           Stu
                                                · ,Julio Fuentes's. alleged common-law spouse.
                                                                                                                           19£
              I. BACKGROUND                      ,Mr. Fuentes was killed in a drilling rig acci-
                                                  dent on October 16, 1991. The trial court
            A. Shepherd v. Ledford
                                                  granted the defendants' motion for summary
   Shepherd v. Ledfard involves a wrongful judgment, and Mrs. Fuentes appealed. The
death and survival claim for medical malpra~- court of appeals reversed the summary judg-                                  in,
1.  All references to section 1.91(b) of the Family                                                                        cia
                                                                parties and others similarly situated is important         fill
 Code are to section 1.91(b) as it existed before             . to the jurisprudence of the state.
 the 1995 amendments and the 1997 recodifica.                                                                              re:
 tion. Although we acknowledge that the issues                                                                             §
 presented in these two cases are unlikely to reoc.          2. While the court in Shepherd misapplied section
 cur because of the amendment, the apparent                   ,'l.91(b), we affirm its judgment on other grounds.          of
 conflict between the statutes as it affects these                                                                         S,
                                                           . SHEPHERD v. LEDFORD                                      Tex.   31
                                                              Cite as 962 S.W.2d 28 (Tex. 1998)

d Drs. Richard             ment and remanded the case for trial, hold-          (Tex.1995). In Bala, the Court concluded
for the wrongful           ing that Mrs. Fuentes had two years to bring         that the phrase "notWithstanding any other
m-law husband              a wrongful death action as Mr. Fuentes's             law' clearly evinced the Legislature's un-
 malpractice ac~           common-law wife. 933 S.W.2d 624.                     equivocal intent that section 10.01 govern
rs' treatment        .of
                                                                                when its time limitations conflicts with anoth-
ition. The jury                        II. APPLICABLE LAW                       er law. See Bala, 909 S.W.2d at 892-93.
 both causes of
                                  A.    Family Code Section 1.91                            C.    Wrongful Death Act
lered judgment
'Ill death claim.              When Mrs. Ledford and Mrs. Fuentes                     [2] An action to recover damages for
illy ·granted the          fIled suit, ~ection 1.91 provided that:                 wrongful death is for the exclusive benefit of
:ment notwith-                                                                     the deceased's surviving spouse, children,
                               (a) In any judictal, administrative, or other
                                                                                   and parents. See TEX. CIV. PRAC. &REM. CODE
 survival claim.               proceeding, the marriage of 'a rpan ~nd
                                                                                   § 71.004(a); see also Rose v. Doctors HasP.,
                               woman may be proved by evidence that:
 p.art, the court                                                                  801 S.W.2d 841, 846 (Tex.1990); Garza v.
1.91(b) did not                   (1) a declaration of their marriage has Maverick Mkt., Inc., 768 S.W.2d 273, 276
'action. The                      been executed under Sectionl.!i2'of this (Tex,1989); Brown v. Edwards Transfer Co.,
n(b) conflicted                   code; or                                         764 S.W.2d220, 222 (Tex.1988). Further-
two-year stat-                    ,(2) they agreedto rn,married, arid after more, to bring suit under the Wrongful
I death in sec-                    the agreement they Iiyed togeth~ ill this [leath Act, a party is required to prove that
he court then                      state as husbandaiid wife, and !)ley ,he or ~he was the deceased's spouse, chil4, or
upplanted sec-                     represented to others that they wef. parent: See TEX. CIV. PRAC. & REM. CODE
  and held that                    married.                                        § 71.004(a); See also Garza, 768 S.W.2d at
;- to', bring. a                (b) A proceeding in which amarriage-i;to .275-76; Brown, 764 S.W.2d at 220.
                                                                                          ,
~cedent's wife.                 be proved umjer this. section must be com-
ems - reversed                  menced not 1ater than. ()ne. year after the             " ••j     D. Survival Statute
.twithstanding                  date on which the relationship ended or                ThO' Survival Statute provides'thatonly  a
n. The 'court                   not later than one year after September 1, :Iiers~i)Jlal representative, administt;ato'l','. or
;. Le<:iford did                1989, whichever is Mer,                             h'.\if1D.aysue on 'behalf' of an estate. See
iv~_ action,_ on            TEx. FAM.CODE § 1.91(b).                                TEX:'CIV. PRAC. &REM.CODE § 71.()21(b). A
:!"   ,-.However,                Legislative history' shoWs" that' sectioh person who' dies intestate with no children
nd remanded
                            I.91(b)'s one year time 'limit was' a coinpr<r leaves all of his or her estate to his or her
ethe distri~t
                            mise alternative to·' completely . abrogawg spouse as sole>:lieit. See ,Tex. PRORCODE
dju    wr.926                common-law marriages'iri-Texas. See" RV;s-. §§ 37, 38(b)(2). The Wrongful Death Act
                             sell v. Russel.~ 865 S.W 2d 929, 932" '(Tex- expressly authorizes the surviving spouse to
                             1993). The Texas Legislature has had ",long bring suit on· behalf of allwrongfuJ death
lientes                      hjstory of "grudging':. tolerance of comIl)0Il- ben.eficiaries. However, the Survival Statute
                             Jaw marria,ges. See Bussel~, 865 S.w.2d..-at il; ,silent about whether .and when a spouse
                             931. Thus, the Legisla.\ure inj;epded fol' ,~e~­ ~ay bring a survival ·claim. Co"!pareTEx.
 . involve~ a
, negligen~e.
                            .tion L91(b).to strictly;\im,it"parties' al;>ility to .CIV.PRAC. & REM.CODE§ 71.Q04(b) with TEX-
  . Rodrig)lez
                             prove a COlPIDOil law _m~.ag,&. Jiee, R~leYjv:
                                                                                   . dry. J;'RAc. & REMCQDE § 71.Q21:(b,l.        .
th a~ion;'s
                             State, 849. S.W.2d 901, 9W;~Tex.~pp;,--Alls!ip           . [3}ThiS Com has deterrillned that gen-
.l;",,~pq.us~.
                             1993, pet. refd).                                  c,   erally, pi.rsonalrepresentatives of·the· dece-
ing rig;acd-
                                                                                     dent'S estate' are the only people entitled to
  trial;P9~
                                         B. MLIIAS~~tiQ!l10.01                "      sue'to -recover estate property. Bee Frazier
~7    sUmrpary-                                                                      v. Wynn, 472: S,W.2d·· 750; 752 :(Tex.1971).
;'aleif· The                     [1] TheMLIlA'ptbVides:""NotWithsmrid-
im:u7. judg-                  ing any other law, no health care liability ,.However, circumstances; :can exi~t when an
       , ,;i;r-:              claim may be com~n~ed \lnl"",s.t.l!eac!ion is heir may haye~ta~ding tpbr4rg: suit on                    ,
!$ iIplpI;)i:ta,nt            fIled within two"yearsjrqmthe. occur- behalf oLthe d~ce,dent's.estate .. J:I~ at lay;
                              rence •... " TEX.REV.CIV. S.TA'J;.,at;\. ,~59Qi, Gan ma.intaip, a ~urvival suit during tJe~ ioU!;-
plifid s~6tion                § 10.01. Section lJ).OLjs the exclllsive statu1;e y~"l' . period the,)aw allows}or i)ls~ituting
her_!grounds.                .of limitations· fOF. medical n:@prac!i£e;claiJJlB. .a<!tpinistratjonpro~eedin~if.they.all.ege,::md
                              See Bq/.a v. M<IJ1Wel~,~09 S.W•.?<I 889, 89&:,9,3 prove ,that there is .nQ administ1'ationp~nciwg
 32 Te'x.             962 SOUTH WESTERN<REPORTER; 2d SERIES

 and none necessary.         See' Frazier,' 472     Wid' the limitations for a medical malpractice      -MossIer's
 KW.2d 'at 752.                                     wrongful' aellthclaim is two years under            ing a·secl
                                                    section 10.01; seationL91(b) necessarlly con-       that sect
 ,(' 4- f~mriy settlement agreement is an alter-                                                        from cia;.
                                                    flicted with section iO.Ol. We disagree.
 , native ,method, of administration in Texas                                                           existed iJ
   thaUs ~,favorite of the law. See In re Esiate         [4] Weihpl~ ~lJ~t,sect;i01! 1.~1(b) of the     the samf
   of Hodges,725 S.W.2d. 265, 267 (TexApp.- Family Code does not conllict With section                   dismissal
   AmarilloJ986, writ refd n.r.e.); Estate of 10.01 of 'the'MLlIA.' When the ione-year                   S.W;2<]:,
   Morris, 577 S.w,2d 748, 755-56 (Tex.Civ. time perioqin section l.91(b)~xpires, the                    public P'
  'App.-'Amiiril!i> 1979, writ rej'd n.r.~.) Under party asserting ~~,', infonPal: __  m#age      is     the Lei
   sec!Jon: 37 of the Probate Code, when: 'a per- barred only fro~ llrilving    tlle  marriage's ex-     claims 9'
   son' dies, 'leaVihg a Will, all of the' estate ,i~tence., See Mossier v. ShWlds,BIS S.W.2d            the "_one..,
   (]evised ~rbequeathed by the will imnieQiate- 752, 75,4 (Tex.199l).'                         '        the Fam
   Iy vests in the devisees or legatees,~;;'bject to                                                     754. Th
, payment of the decedent's debts. The bene- , Mrs. Ledford (jid not ~~W tp file h~ medi-                was req"
                                                      cal liability claimWithiIl one year pf Mr.
  ;fi$ries of.an.      est~-te are free to arr~ge
                                                     'Ledford's death.' Ratlier, she only had to          an infor
   among themselves for the distributi6p of the                                                           the timE
                                                      initiate, a proceeding to. prove the requisite
   estate and for the payment of expenses frbin
                                                     \~l~ments-''-, an'1nformru.:~kmage within one
                                                                  of ,-- r' '.,-' " _ '
 '&4t estate. See TEX. PROB-CODE § 37; see .- .', -,
                                                      year, of his death. See TEX. FAM.CODE
   also, .Pitner v. , United States, 388 F.2d 651,
                                                      § 1.91(a) & (b). Thei-e~e legal pro~eaures             Weh
 ,'656 (5th Cir.1967); Estate of Hodg~s; 725                                                             Mrs. L,
                                                      ~vailable for common-law spouses in: Mrs.
   S.w.2d at 267.                                                                                         her cor
                                                      Ledford's situation. For example, Mrs. Led-
      Section 37 also provides that when a per- fordcould have fileda-Proceeding to Declare               limit of
   son dies intestate, all of his estate shall vest Heirship to establish the existence of her            ollporn;
   immediately in his heirs at law, subject to common-law mi¢riage.' See :TEX. PROB.CODE                  bring!
  ,payment Dithe debts of the estate. Se.eTEX. § 48(a). Or sh,!'corildlilive filad the wrong-             Howev1
   l'ROB..CODE§ 37. If the deceased has,[l~ ful death claim within one year of Mr. Led-                    case, ]
   children or, their descendants, the sl\l'\i'!ing ford's death and established the existence of          1.91(b)
  ,SpOUSE> is entitled to all of the persOlllll es- the common-law marriage at trial. The                  claim.
   tate. See TEx. PROB-CODE § 38(b)(2). '            :choice was hers,.as long as she initiated a             Mrs.
                                                      proceeding to prove, her informal marriage           Despit
                   III. ANALYSIS                      within the one-year ,time limit. See TEx.            with' E
                                                      FAM.CODE § 1.91(b);, Mossier, 818 S'.W.2d            order,
              A. Shepherd v. Ledford
                                                      at 754.                                              statin!
               1. Limitations Period                     Accordingly, we reject the court of appeals'       agree<
      Because Mrs. Ledford allegad a common- conclusion that section 1.91(b) provided an                    Ledfo:
   law marriage, as opposed to a formal mar- independent limitations mechanism that di-                     prior
   riage, she was required to prove the ele- rectly conflicted with section 10.01. Rather,                  death.
   me~ts -of an informal marriage within one we hold that section1.91(b) aimply estops a                        [5, I
   year from the time the relationship ended. person from claimirig that he or she is infor-                -missic
   See TEX. FAM-CODE § l.91(b). The "pparent mally married unleSs he or she starts a pro-                   proce
   conflict arises, however, because the statute ceeding to establish an informal marriage                   respe
   of limitations for medical negligence is two within section 1.91(b),s one year time limit.                Orteg
   years. See TEx.REV.CN. STAT. art. 4590i, Consequently, the person would be unable to                      834 :
   § 10.01; Bala, 909 S.W.2d at 893.                  assert standing to sue under the Wrongful              1992,
      Affirming the trial court's judgment, the Death Act.                                                   signe
 court of appeals held that section 1.91(b)           This holding is compatible with Mossier.                admi
 impermissibly reduced the time Mrs. Led-           In Mossier, the petitioner filed a second di-             comr
 ford had to file her wrongful death suit. The      vorce action after the trial court dismissed              ed tl
 court reasoned that because section 1.91(b)        With prejudice the initial divorce proceeding.            sive
 required her to file the wrongful death law-       See Mossier, 818 S.W.2d at 754. We held                   mon-
 suit within one year of Mr. Ledford's death        that the dismissal with prejudice of Mrs.                 ofC,
                                                                  SHEPHERD v. LEDFORD                                      Tex.   33
                                                                   Cite as 962 s.w.2d 28 (Tex. 1998)
   :lical malpractiet'<   i-'Mossier's first suit estopped her from bring-           App.-Corpus Christi 1994, writ denied) (cit-
   vo years und(w         'lng a second suit for divorce. We then held               ing Hennigan v. J.P. Petroleum Co., Inc., 858
   necessarily con"        that section 1.91 prevented Mrs. MossIer                  S.W.2d 371, 372 (Tex.1993)) (stating that a
   e disagree.             ft'om claiming that a common-law marriage                 "true judicial admission is a formal waiver of
   , 1.91(b) of till'      e-xisted in the second proceeding, achieving              proof usually found in ... the stipulations of
   ict vr.ith section      the same result as estoppel based upon a                  the parties."). Therefore, because the defen-
   n the one-yem'          dismissal with prejudice. See Mossier, 818                dants judicially admitted facts that establish
  b) expires, the          S.w.2d at 754. We specifically noted that                 Mrs. Ledford's standing to brblg a wrongful
                           public policy supported our decision because              death action as Mr. Ledford's surviving
  :il niazTiage il:l
  ~ _marriage's ex-
                           the Legislature ,approved barring, stale                  spouse, they are estopped from now claiming
                           claims of an -infonnal marriage by;.,enacting             to the contrary. See Herschbach, 883 S.W.2d
  Ids, 818 S.W.2d
                           the one,year time limit in section 1.9l(b) of             at 733.
                           the Family Code. See Mossler,818 S:W.2d at
  :0 file her medi-                                                                     Consequently, the stipUlation relieved Mrs.
                           754. Therefore, under the law, Mrs. Ledfon!
   e year of Mr.                                                                     Ledford of her burden to prove her common
                           was required to begin a proceeding to prove
   Ie only had to                                                                    law marriage, something she would not have
                           an informal marriage witrm one year" from
   e the requisite                                                                   been able to prove otherwise, and she had
                          ,the thne the marriage ended.
  iage within one                                                                    standing to brblg- the wrongful death action.
  'Ex. F AM.CODE                           2. The Stipulation                        Accordingly, section 1.91(b) does not apply in
  • procedures
   gal                                                                               this case•
  lOUses   ro-   Mrs.
                          , We have held that section 1.91(b) required
                                       '


                          "Mrs. Ledford to begin a proceeding to prove                                 3. Survival Suit
  'pIe, Mrs. Led-          her common-law marriage vr.ithin Oli~ year
  ling to D~clare         ,limit of Mr. Ledford's death, or forfeit the                 Defendants' final contention is that the
  istence of her          :opportunity to establish her standing' to                 court of appeals erred in holding that Mrs.
  'EX. PaoB.CODE           brblg suit under the Wrongful Death Act.                  Ledford had standing to bring the survival
  led the wrong-          ,However, under the spe~ific facts' of this                elainl on behalf of Mr. Ledford's estate.
  Ir of Mr. Led-                                                                     They assert that Mrs. Ledford lacks standing-
                           case, her fallure toc()mply with section
 le existence of          .Ul1(b) does not bar her wrongful death                    to sue as Mr. Ledford's heir because she did
  ,t trial: The           claim.                                                     not plead and prove that no administration
 lhe initiated a                                                                     Was pending or necessary. Defendants con-
 rmal marriage
                            Mrs. Le<ll'ord sued on N~vember 15, 1991.                tend that when Mr. Ledford died he owed
                          Despite th~ (act that she had ~ot c~mplied
 lit, See TEX.                                                                       more than the mirumum two debts to qualify
                          with section 1.91(b), the court entered an
 :r, 818 S.W,2d                                                                      for an informal estll.te administration. 'Se~
                          order, whichrefiected the part;esagteeinent,
                                                                                     TEl<. PROB.CODEl'§ 178(b).
                          stating that the parties "stipulatea'imd
 art of appeals'          agreed ... that LallomaLedford'and"Joha                      Mrs. Ledford's .-evidence showed that ~.
                                                                                                            .                 ,   .:
 ) provided an            Ledford had' a validconrrllOn"law marriage,                Ledford owned no real property and had!)p
 inism that di-           prior to and at the time"o('Johh Ledford's                 children. Therefore, his personal esta~
 0.01. Rather,            death."                                                    vested immediately in Mrs. Ledford, hiss~
                                                                 a~';~ment, ad-      vmng spouse. . ..See ,TEX. , PROB ..COllf
mply estops a
r'she is infor-              [5,6] Astipulation is       ,,all                       § 38(b)(2). Mrs" Ledford testified tIiat, bY
                          "mission, 'ut,,"; concession 'made.- in ,~ judicial        j;heti~e of tri~1 allMI:. Ledford's debtSh~~
" starts a pro-
mal niarriage             proceeding- by the parties or their' attorneys
                                                                                     beell paiq., She also tes\illed that she ~a~~
                          respectin'g -- some cn1atter: -incident -c- thereto-}~
arthne limit                                                                         ana~eement with, other family .'Pemb~r,.il;·
I be unable to            OrtegarCa:rfuiv.A1nIJrifan1rit'l Adjustm~n~
                                                                                     peI1l)itting her to take the millimalassets. of
the, :Wrongful            834· S.w.2d"439,44142('l'6cApp:-;Dallas                    Mr. Ledford's estate as hiS ouly heir. Defe'l--
                          1992, writ.denied):"'CounselJoi\.bothpa:rties'             d~nts did not controyert this evidel1ce. '. ';,:'
                          signed' the stipulation and thereby judicially
.,jth Mossier.            admitted that Mr. and Mrs. Ledford were                       E7] The evidence shows that· the f"mily
  a second- di-           common4aw'spouses: ·The:.trial,coart·accep~                had resolved the estate's dispoSition and that
lrt dismissed             ed the stipulation and thus it became conelu'              all debts were paid. Accordingly, no admip.'
                                                                                                                                           ,
eptoceeding_              sive -'-h:n:" tlie":eiis~fic~ -of'tflJ-eIJ~WJrds'~ coIh~   istration Was necessary for it, would: haVe
>4." We held              mon-Iaw marriage; See He1'SchbiJlfh v;, .Gity              served no ·purpose., We see -no- reason ~whY      .
dice 'of Mrs.             6/ C<itpUS' Christ~ 883 ScWJ!dl!720, a33 ('reX.            the Pitner rationale approving no administra'
/
    /,:~~::=   -

                                           962 SOUTmWESTERN RBPlllta'ER, 2d SERIES
                   ::34      Tex.                                                                                                            actio
                   tionwhenthi, devisees under a.willmak\>:;an ,tJkeujuror. Caudill,if she :¢Jluld ~onsidE)!" tile                           ingi
                    agreement to. distribute the' estate· and pay ,facts:'objectively and in "f. n'mtralway.' :;\he                          § 16
                    the bills does. notapply,Witll:equal foree jrtrilplied, "L 'don't ,think:so;!t Neld, counsel                             ,1.91(
                                                                                                                            e
                   ',the situation where the ,heirs, of.andntestate ,@ketl:prospective,juror,;Sometvill : ''You                              ing'
                    decedent make an agreement tQ:,distribute :feelthat b,asedupon 'your past· experience,                                   brol.l
                     the estate and pay the.:bills. SeeP,itnm.·3S8 ;you'~ouldnot be falr and objective in looking                            cuss
                     1'.2d at 656. ,Thus, .the pitner'rationaleap- 'lif,thEmedical' facts as'tbey have lieen testi-                          plan
                     pljes,;hE)!"e, where the decedent:<iWed .0nlY 'fied to so' that both sides,starlout evenly in                           sect
                    ~personal property, -and that. property y.es~d :tNs'Ycase;.-' ts --that COlTectqna'a,nr', Ill.' re-      i.
                                                                                                                                               It
                    :jmmediately in ,Mrs. Ledford;: Accordlngly, ;SP9nse, Somerville responded, ,"That is true!'
                                                                                                                                              Fue
                     .:"''' hold that undE)!" the facts apd.;because pf :ItnInediatelyfollowing tlris'exchange, counsel
                                                                                                                                              nevI
                      the family agreement, no formal adnri)jj;;tra- cbegari':til 'ask the folloWing-' question of .the
                                                                                                                                              riag
                      tion,),as.necesSary. See In: re )!lstate of jury panel, and, -veweponion Guerra ie-
                                                                                                                                              cou~
                      'lIoaye s, 725 S:W.2d at 267; Estate ofMorris,spilhded:                  ' '                                            the
                       'f,77 S.W.2d~t75~6.: We6p.l\~j~~e ~he "C0UNSEiL: Is there anybody else, after                                          wa1:
                      soiii1. of appealscOl:rectlYde~fini1'!edth~'t""-i\v~'ve llst"n~a'to this' '                                             spo
                       ¥rs.Le<lford had standing t()s;'~,on)iell..i.lf '        GUERRA:. I fi''e"el"t'he':'s·:"a"me'. w' a·y• .' . '.. My'
                                                                                                                                              §    7
                        9fM,.. Ledford's.es\ate. .... "'::.;;,':"                  dad died of a heart attack also. I just
                                                                                   don't like to' taik ;'f,out it because it
                                  4. Juror Disqualification'                      'brings b~ck bad memories, Btlt yeah, ~I                    cee
                            We now turnta,. ,Mr~. Ledford's complaint . "'think it would havea'--'-I would have'"                             cor
                         that the court of appeals erred in remanding          .,' problem with that:.                                         ye~

                         the caSe formal because the' tna:l' "burt 'did    , .. :COUNSEL: [AJs a res."tit of that, yorl'feel                   § 1
                         not disqualify an' allegedly biaSed''pr<\spectfve          that Mrs. Ledford would b~you wO:dld                       atE
                          juror. Drs. Shepherd and 'Gratiain '~o\\tentl             feel for her and puther-sort of put hE)!"                  m'
                          that the trialcdurt 'abused its discretion' 'in           ahead of tbe defense in thhl case ... ?                    q)l
                          refusing to strike 'th" prdspecl.iv~ jufor'fdr         GUERRA: I think so. Like {said, my                            off
                                                                                     dad was-after t~t, for a long, he -0/""
                                                                    -;;'
                           cause.
                                                                                       in a coma, so I seen. [sic] him_suffer a fot,
                            [8] A prospective juror who         adIIriis hi.as                                                                 A<
                          or prejudice is disqualified. t() seryeas' a                 and I know what it did to rtl~" .                       sp
                          juror. See :TEx. GotT CODE. §,,62.105(~);
                                                                                                                       "




                                                                                     The trial court granted ShepheI;d's motion                fo'
                          Compton v. Henrie, '364.S.W.2d~7\l, 182                 til strike Caudill and Somerville for caUSe.                  7<
                           (Tex.1963). When a trial ;coU)"t. refuses ,t()         However, despite defendants" showing. that                      1:
                           disqualify a juror for bias or prejudice, the          Gllerra was biased and that they would, ,~e                     st
                           complaining party must show that the error              forced to use a perelllPtory strike on Gu~rt1'                 sl
                           was harmful. To do tlris; the party,'before             that they would otherwise have used 01' an-                    tic
                            exercising its peremptory challenges; 'inti'St         other specific objectionable juror, the trial
                            advise the trial court that "the court's d"riial       court refused to strike Guerra. for cause.
                            of the. challenges for cause would force 'the
                                                                                      [9] The court of appeals. correctly held
                            party til exhaust its peremptory chall~liges
                                                                                    that Guerra was disqualified as a matter of
                            and, that after exercising its peremptory
                                                                                    law. Guerra expressed his biaS, and the trial
                             challenges, specific objectionabie jurors                                                                             n
                                                                                    court should have granted the defendants'
                             would stin remain on the pan~l." Goode"".                                                                             o
                             Slwukfeh, 943 S.w.2d441, 452: (Tex;i'997);             motion to strike Guerra for caus.e.Accord'
                                                                                                                                                   s
                                                                                    ingly, we affirm the court of appeals' judg-
                           Hallett v. H DUston N. W. MeeL Ctr., 689
                                                                                     ment and remand this case to the trial col)rl.
                            S.W.2d 888, 890 (Tex.1985).                                                                                            1
                              During voir dire, defendants' counsel elicit-                 B. Transamerican v. Fuentes
                            ed statements from three consecutive pro-
                            spective jurors that none of them courd be                     1. Limitations-Wrongful Death
                            falr to. the defendants because of the results             [10] "A person must bring suit not later
                            of medical treatment experienced by family               than two years after the day <he cause of
                            members. Defense counsel asked prospec-
      ;S                                                        SHEPHERD v. LEDFORD                                     Tex.    35
                                                                  Cite as 962 S.W.2d 28 (Tex. 1998)
    e could consider the       action accrues in an action for injury result-       quirements. Furthermore, Mrs. Ledford, as
     a neutral way. She        ing in death." TEx. CIV, PRAC. & REM. CODE           Mr. Ledford's sale heir, also has standing to
     so." Next, counsel        § 16.003(b). M we have explained, section            assert his survival action.
   IT Somerville: "You         1.91(b) sets the time limit in which a proceed-
                                                                                       Because the trial court erroneously re-
   our past experience,        ing to prove an -informal marriage must -be
                                                                                    fuSed to disqualify venireperson Guerra, de-
   d objective in looking      brought. Thus, for the same reasons dis-
                                                                                    spite his apparent bias, we remand this case
   they have been testi-       cussed above, section 1.91(b) does not sup-
  !s start out evenly in                                                            to the trial court for proceedings consistent
                               plant or conflict with the two-year statote in
  ~ct-· ma'am?"    In re-                                                           with 'this opinion.
                               sectionl6.003(b).
  mded, 4'That is true."
                                  It is undisputed that Mrs. Fuentes and Mr.                  B. Transamerican v. Fuentes
  lis exchangei counsel
                                Fuentes were never formally married and
  l>ing question of the                                                                   Mrs. Fuentes had no standing to file a
                               never filed a declaration of informal mar-
  ~person      Guerra re-                                                           ",,"ongful death claim because she did not file
                               riage; Thus, the only way Mrs. Fuentes
                                                                                  .a p~ceeding to prove the existence of a
                               could assert standing to bring this suit under
    anybody else, after                                                             common-Ia"" marriage within section 1.91(b),s
                               the Wrongful Death Act is if she proved she
  s-                                                                                time limit. Therefore, she is barred from
                               was Mr. Fuentes'-s common-law 'surviving
   same way. ... My                                                               ·In;rlnWningher wrongful death claim against
                               spouse. See TEll' Civ. PRAC. & REM.CODE.
  ; attack also. I just                                                           "Transamerican. Accordingly, we reVerse the
                               § 71.004(a).
   about it because it                                                              court of appeals' judgment and render judg-
  maries. But yeah, I             [11] Mrs. Fuentes had to initiate a pro- merit that'l\1rS. Fuentes take nothing.
  , ~I would have'"            ceeding to prove that she ""as Mr. Fuentes's
                               common-law sui-viving .- spo~~e" Wi~n .one                 HECHT,J" joined by PHILLIPS, C.J.,
 sclt of that, YOt! feel      year of his death.        .See TEX. FAM.CODE ·.in4 o,'lVEi'!, J., c~ncurs and dissents in part.
                              § 1.91. However, Mrs. Fue'ntes did, not initi-
 muld be-"---you wo.tild
  her--.sort of put her       ate a proceeding to prov~ her common-la""
                              .                                                           HANKINSON, J., not sitting.

 ·e in 'this case; ... 1      llJarriage within section 1.91(b)'s one-year  re-           HECHT, Justice, joined by PHILLIPS,
                              quirement; therefore, sn'~, is b~e4!" ~om Chief Justice, and OWEN, Justice,
 J.   Lik~ I said, my         offering any proof of that relationShip.         .
 ., for a long, he W~                                                  "';';,'                   ~~d
                                                                                   con~.;,..mg'.,' dissenting in part.
                                                                                 '-';';!'    :"
 [sic] him. suffer a lot,         [12] The purpose of the WtohgfulDeatb             I agree'with the Court that Section 1.91(b)
 lid totr!t                    Act is "to provide a means whereby surviving 'of the Family Code bars plaintiffs' recoveries
 :l   She~l)~~d'.s Illation    spouses, children,' and parents CaR recover"· m.'ithese two cases. I do not agree, however,
 o~efor callse.                for the loss of their family· member. GanG;, ·that Dr. Shepherd and.Dr. Graham's attOr-
dants' showing that            768' S.W.2d· at 275.          Because secf.iOn · ney wai"ed oapplicability of that statute by
 that they would be            1.91(b)bars Mrs. Fuerites from proving"her stiptilating that. Lahoma and.•John Ledford
'ry strike on. G~~~i'          standing as Mr. Fuerites's slirviving';spouse, had a valid conunon law marriage. Thepur-
;e have used. on an-           she cannot maintain her wrongful death 'ac- 'pose and effect.of the stipulation ""as merely
Lble juror, the'trial          tion against Transamerlcah.                       to obviate· the necessity of proof of the mar-
  Guerra for cause.                                                              riage at trial; it was not intended to waive
                                           'IV. CONCLUSION                       defendants' consistent contention that even if
)e.als., coq.ectlyheld                                                           a,marriage eJdsted, Section L91(b) precll/ded
ified as a.matterqf                      A., Shepherd.v.Ledford                 .Ledford from asserting it inthls.action.The
is biasi·an.d the trial        . While weaffimlthe court of appeals'judg- · Court's contrary conclusion' is not supported
:edthe; defenda.!1ts'         ment in this case; We disapprove of the court by the. text of. the stipulatiort· and is contrary
for ·caUse·;i!.l\.ccotd-      of appeals~ detennination that Family ..Code to defendants' intent apparent in theconteJOt
rtofappeals' .IIldg~          section 1.9l(b)conllicts with MLIIksectioh ,in which the stipulation ""as made. 1 ""oulJl
,e.tothe 'trial ,co.urt.      10.01. Section· 1.9l(b) .is'atime·Mmit;f6t hOld,.that .thestipulation do.ea not preclu<ie
                              bringing a proceeding ·to, prove the requisite .the application of -Section. 1,91(b), and that
n v.li'Uelite.8~<"fi\.i"      elements 'of:a common-Iaw,·marriage:-", Ho:w..; judgment shohldbe reridered for Drs. Shep-
                                                                                                                                      ,
~,,~ij~i}~!K,: .              ever, because the. parties stipulatedto"the herd and, Graham; just as th,hCourt.rendeJOs
                              Ledfords'- cpmmon;.Iaw marriage; ,Mrs:: Led... ;judg'merit for TransAJ;nerican, IN atural.· Gas
hriug;'spit uat law           ford had standing to bring" wrongful.deatb 100rporation: and' the. other, dMeniiantsin .the
, day the. c"usear            claim withQut ,meeting section· 1.9l(b)'s'·;rii" 'companion case. Fl'omthe·af/innance of the
                           962 SOUTH',WESTERN, REPORTER, 2d SERIES

    'judgment' agairist'Drs. ,Shepherd" and.' Gra-               -rlirected'cverdict a"being; made; to "preserne     ;1957,' WrIt'ref,
    ,,'ham;l respectfull:,hlissent."                              'their c6inplaint·,for.appeal, 'The, district      "prs;,;Shepherd
                                                                 ,co1lI'1:s ,lltatetnentindicated' that:defendants   .seotion 'L91(b~
         Ms. LedIord could"riot sue f.or John Led-
                                                                                                                      neous,-'underst
    -fQrd~s" death Ij'it"Qut proving, that sh"had . had"nok bY;.:,their ,stipul;;ti.ou,. waived,. their
                                                                                                                      had" done sorb
     .\>~e"",\>is, wife.• $~.•,TE1<-Crv. PR~c.. &;lfi;;!!I. ':contention,.,that : Sectiolb1,~1(b) ,precluded
    ,J:"GDE;;,§; '/J,004,.]'1ls, LedIoId.,cl;illned a gq(n- ··plaintift!.s1eCOyery. -) -J)~ '-';i~'                   our holding in
    'mon-Iawmarriage,\(lc John Ledford. Section " Attne '~loBe of ihe'eviaeHce, Dril;iShepherd                        'I agree with
     ·1.91(b) req;;U:es th~t a proceeding in ":hich,a "llrid'GriihaIil again mOveij·for,i'directed'ver-               StalesFire 1
,      commoIi.:..m'W 'marriage is to be proved must dict based on Section L91(b)!".'A'gainthe                       XW.2tn51\ I!
       be broug"t,;-.yiW~,p!l~,year of the .relation- district court denied Jheir ,In9jion, ;v;JtJ)out               ):Ilk'" '!:-r- e" t!7
       ahip's end. Ms. Ledford did not initiate such permitting.plaill,tiff to r~spond..~Jlyer­                             )"
                                                                                                                      t4tm ~qep. it
     .\1 p':ocee!ling; Within ih~presccibed ~ime6eri­ \fict against Drs.. Shep))~p.,and Graham, th~y                  ·'··A ~tipul'
      'Od. Thus," as 'theCciuft'holiis,she 'cannot ,.moved fo~ judgmen(_rpn,ppst~t~'yeredjcto,                            tract betwe
    'recover'ill'" ibis' "actf()ri ;unless . 'defendants ,still asserting Be,ctio)!: 1,~1(b).: j?or.thetjrst              cia! procee(
      w'li\ved appiicabilitY6f Se~tiim'1.91\b) ..                ,time, Ms. LedIord 'arme!l,th~t defe"dants            " ,incident' thl
    .    -- - ~'   : '-;     ; -- , - - :' - - ."" ,: , \". , -,
         Before trial Dr. Shepherd and Dr. Graham .w,aIved,thejr contention l:>y,~i); pretrial stip-
                                  .
                                                                                                                           nar:ilY, of'
                                      "              "




    o~erte,tl ,that SectiQnf9~(bjp~~ented Ms. ,ulation. "The court qenieq, defendants' .mo-                                pense.; ...
    ,I;edIord from reCPv~ri~g lor. ~olin LedIord's tion and rendered judgment against Drs.                                 tion 'wust
      death because. thi~ action was ,uil(llsputedIy Shepherd and Graham for $150,000, plus in-                            th~ pirties
      not brought Withill one 'year (;t the ternn- terest.                                 ",,',:                          construe a
     nation of their relationship. Defendants took               Un'luestionably,nrs:'Shepherd and G~a­                    adnrlksiori
     t1;tis position in~" motiob'}~r Stlmtci,aIov jridg-      ham ';,imld hav~':~tipUlated 'that Ms. LedIord               troverteil
             a
     iri)~~t, . suppi~rrienta1' 'ili.~tion f~t·-j-sdmm~      'would succeed }ri'proving':that .sli~: was l1lar-             plainly agI
     judgment, and a.plea in a,bateI1)ent.. The               ried to JohnLJd¥6~d If onl'ySe~ti;'n, 1.91(b)             Attard: ,Jcu:.
     district court consistently rejected defen-             permitted   her    to do, 'so,witli6'UtWaiving their       ('rex.Civ.ApI
     dantS' ;argnment;    ,.                                  argUment that Section1.91(biprecluded her                 ing also tha
            On the first day or'trial, counsel for ail        from makii\g su~h pr~o£. . A"defehdllnt can               inore force'
      parties approved a written stipUlation "that            stipulate that available eVidenc~ would prove             have"); see'
     ;Lahoma LedIord" and John LedIordhad a                 ,ldact without w:aivi!lgt"~' Wnte"tiol1: that                Baskin, 855
    ,;"alid common'law marriage prior to and at             '.i'~covery pased;on the facti~biuTed for·some               Paso 1993, r
    ,the time of John . LedIord's death!' The               'other.,·reason. To. take,allOtherexarnple" a                can Int'IA
     'Stipulation waS' made in the.form of an order           defe.n.dantcan stipulate (hat·ljis negligence              441-442('T
    ,)Signed by the' district courtcand approved by           caus.ed pllJintiff's injuries wi~hout waiving his          nied); Nati
     'counsel. At the, close ofc'plaintiffsevidence,          contention that plaintiffs claim is barred by              tine., 800
      defendants moved,Jora'directed verdict on               limitation>; ... The Court ,does.'mt, and c~nnot,          Paso 1990,
      the ground ,'that 'Section1.91(b) precluded            argue to the contrary, Tl1eq~estion ·is not                 court of a
      plaintiff from proving a common-law mar-               could defendants 11)*e such ,a "limited stiplj-              S.W.2d 18i
     'riage, Without allowing plaintiffscounseJto            lation, but did they.                                        writ refd I
    -;-l'espond; .the'·district court denied the motion,       'Waiver is. an intentional relinquishment of               CO. V. DU1
     'stating: "1 take this as [defendants' coun-           a known right or intentional conduct incon-                   App.-W",
     sel'sJ.preserving her record for pUrPoses of           sistent with claiming thkt .right;" Sun Ex-                   tion of the
    'appeal,Sincewe'veaddressed this question               ploration & Prod. Co. v.Benton,728 BW.2d                      the detern
    ','. -~ .' in motions: for summary judgment and on      35, 37 (Tex.1987). More thana century ago                     guage use
     "other occasions,:-my ruling"will be consistent."      we said that waiver, is," 'largely a,'matter of               light of tI
      Thus, at this point in the trial, several days        intention' ". Pope v. A.'T. Graham &' Co., 44                  cluding th'
      after the stipulation had been made, the dis-         Tex. 196, 199 (1875). More recently, we                        tions thert
    trict court, who signed the stipulation) was            stated: "[Wjaiver nlUst he, clearly established                in respect
    apparently of the view that defendants· had             by 'facts or circumstances sbowingan inten-                       The sti
    not waived their Section 1.91(b} defense.               tion by one PartY to waive and an under-                       intention
    Rad the court thought that the stipulation              standing to that effect by the other." Gar-                     1.91(b), al
    waived the defense, the~e would have been               ner v. Texas State Ed. of Pharmacy, 304                         record frl
    no reaSOn to refer to defendants' motion for            S.W.2d 530, 534 (Tex.CivApp.-Eastiand                           cerned. r
                                                                                  SHEPHERD v.LEDFORD                                          Tex,   37
                                                                                    CiteBs962 S.W.2d 28 (Tex. 1998)
        made- to prese~ye         1957, writ refd). Neither the intention by                             Graham have consistently maintained before
      .eal. The district          Drs. Shepherd and Graham to forego their                               trial, during trial, after trial, and on appeal,
      ,d that defendants          Section 1.91(b) defense, nor the contempora-                           that Ms. Ledford's recovery is b;=ed by
      ation waived their          neous understanding by Ledford that they                               Section 1.91(b). Defendants explained that
       1.91(b) precluded          had done so,' both requisite for waiver under                          they agreed to the stipulation as a mecha-
                                  our holding in Garner, is present.                                     nism for shortening the trial of the case by
      ,nce, Drs. Shepherd             I agree with the court of appeals in United                        obviating the need for plaintiff to adduce
       for a directed ver-         States Fire Insurance Co. v. Carter, 468                              evid'ence of her common-law marriage which
      .91(b).Again the                                                                                   defendants acknowledged existed but argued
                                   S.w.2d 151, 154 (Tex.Civ.App.-Dallas), writ
      !ir motion W;ithout                                                                                was to no avail because of the statute. The
                                   refd reT.e., 473 S.w.2d 2 (Tex.l971) (per cu-
      pond. Aft", a ver-           riam), when it wrote:                                                 district court, who sigued the stipulation, was
     I and Graham, they                                                                                  apparently of the view mid-trial that defen-
                                         A stipulation is an agreement or con-
     obstan~ -veredicto,                                                                                 dants had not waived their position. Ms.
                                      tract between the parties made in a judi-
     l(b). For the fIrst                                                                                 Ledford did not assert that defendants had
                                      cial proceeding in respect to some matter
     ,d that defendants                                                                                  walved their Section 1.91(b) defense untli she
                                      incident thereto and for the ,purpose, ordi-
    : their pretrial stip-                                                                               filed her' response to defendants' motion for
                                      narily, of avoiding delay, trouble<and eX-
    ,d defendants' mo-                                                                                   judgment non obstante veredicto. While it
                                      pense. . .. Being a contract the stipula-
    nent against Drs.                                                                                    now appears that defendants' counsel would
                                      tion I11ust truly express the intentions of
    : $150,000, plus in-
                                      the parties makirig         same.       Acourt will not            have been prudent to expressly reserve de-
                                                                                                         fendants' Section 1.91(b) contention in the
                                      construe a stipulatiOn' so as 'toeffect :In
   ,hepherd and Gra-                  admission of something intended to be 0011-                        stipulation, she was not required to do so.
   Ithat Ms. Ledford                  troverted or so its to waive a right ri<lt                         Waiver ,is the intentional relinquishment of a
    that sli$ was mar-                plainly agreed to be relinquishea.                                 known right, not the unintentional failure to
   nly Section 1.91(b)                                                                                   reserve a known right.
                                  Accord: ,Jackson v.' Lewis, '554 S.W.2d 21, 24
   tHout WaIving their
   l(b)' precluded hEir
                                   (Tex.Civ.App;-Amiu'illo 1977, no writ) '(stat-                           The cio~ offers no explanation for its
                                  ing also that a stipulation "will be giveri' no                        holding that Drs. Shepherd and Graham inc
     A defen'&lnt'c~h             more force than the parties intended it to                             tended, to waive a defense they had consis-
   d~nce would prove
                                   have"); see also Discovery'Dperating,- Inc. 'v.                       tentlyasserted prior to trial and continued ,to
   le,contention 'that            Buskin, 855 S.W.2d 884, 886 (Tex::App.'-'EI
   is b~rred fo;';~ome                                                                                   a,ssert ,afterwa,rd. Absent a dear statement
                                   Paso 1993, no writ); Ortegar-Carterv;A'I1Wri-                         o(waiver in the stipulation, any evidence ,of
  notherexaI11ple, a
                                   can Int'l Adjustment Co,; 884 S.W.2d439,                              an, intent to waive defenses in defelldants'
  "a.this negligence              441-442 '(Tex.App.-'-DalIas 1992, ,writ'de-                            cond~ct, any evidence that plaintiff und'C':-
  vithout waiving hjs
                                  nied); Nationat unUm Fife Ins. Co: v>Ma\'-                             stood the stipulation to be a walver at the
  claim is b,;=ed by              tinez, 800 S.W;2d 331, 334 ('P.x;App'£EI                               time it was made, and any suggestion of a
  ~s 'IlDt" and_,cannC),t
                                  Paso 1990, no writ). I also' agree'wiili'the                           reason why defendants might have intended
  pe _ ,q~estio~ .i~':·I\~t
                                  court of appeals in Mann"v:"Fimder,' {)87                              to waive a position they were continuing' 'to
  ch. a '1in$4. stip)l·-          S;W.2d 188, 202 (Tex.Cj{':App.-W;tco,1979,                             assert;' I would hold that Drs. Shepherd and
                                  writ refd n.r.e.) (qiloting'Texus I'ndem. [itS,                        Gra)1allldid nOt waive, their defense, under
 I re1in:quishment of             Co, v. Dunn, 221 S;W;2d922, 924'(Tex.Ciit.                             Section 1.91(b). The $150,000 judgment
 n~    conduct incon-             App,"'-Waco 1949; 'no writ)), that "[t]he inten-                       against'thkm is simply not their lawyer's
    right:,j, Sun Ex"             tion of the parties in atrial stipulatitm is for                       fault. Because the Court says it is, I re-
  'enton,c728"S:W.2d             the detennination, of the, 'court from the lan-                         spectfully dissent.
 han a century ago               guage used in the 'entfre,agreeinent'in the
 lrgely ,,'matter of             'light of the surrounding circuinstances; 'iIi-
 Graham &:<iioc"44               cluding thes,tate ,ofthepleadillgs, the~ega­
 lore- ; recently;,· We          tions, ther~in"and the attitude of the parties
clearly established              m','res'pec't"Qf,t'h',e lB'-,s'ues.'"',, . "     . -'.,0.' . : .
                                                                            "-',     o'fl:-."'-·- ._C·
shOwing an inten-                    The stipulation does not itself refIecean
V"e: and" an under-
                                 intenti{)n towru.ve.a~plieahilitY o{S~'ction
                                                                                                                                                            ,
 the: :.othe:r:.'~- ..--:-Gar-   1.9i(b), and there u,nO othkevideri~e:Pl our
if Rharmac.y"c,304               record, from which that intention ,can,be dis-
:i,,;App.~Eastiand
                                 cerned. To the contrary, Drs. Shepherd and
APPENDIX 6
                                            NO. 07-0335-1

ESTATE OF                                                  §       IN THE PROBATE COURT
                                                           §
RODRICK WIllIAMS.                                          §       NUMBER ONE OF
                                                           §
DECEASED                                                   §       TARRANT COUNTY, TEXAS

                          ORDER DECLARING HEIRSHIP
           AND    GRANTING INDEPENDENT ADMINISTMTION
      On, this day., came on to be heard the Second Amended Application for

Detennination of Heirship and to Establish Independent Administration (the

"Application") med by Tamara Prince ("Applicant"). The Coun, after considering

the pleadings. the evidence, and the statements filed herein, fmds that:

A.    Service of citation has been made in the manner and for the length of time

      required by law, and, all parties interested in the estate have executed the

      Application or have been duly served with citation as required by law;

B.    Rodrick Williams ("Decedent') is dead, having died on October 9, 2006, in

      Ellis County, Texas;

C.    Decedent was domiciled in and had a fIXed place of residence in Tarrant

      County, Texas, at the time of his death;

D.    Four years have not elapsed since the death of Decedent and this Coun has

      jurisdiction of Decedent's estate;

E.    Decedent, died Without leaving a lawful will;


mg\williams,s.\Iit\-!ppl-adminAMND2d.1931 1,                                        SCANNED
                        nu' [p.t;P COf!HtCf COl"" UI
                      l ,",          ••' 'C"") f'l[D IN                            JUN l! 2 2007
                                     1:.;..
                       0 ""'-1,,1:\1"". ..\ 1"XA.1"·
                         .,.~ .~ ...
                                                I

                       T~fiH.'\Nl t.rl~;l..tlY, ~..   J.   1 t.I   ct.El1K
                       SL'ZAN~JE H[fmmSC1l. CQll."l'f



                                                                                                   758
F.    Decedent was informally married to Tamara LaShae Prince on the date of

      death;

G.    There is no need for appointment of appraisers for this estate;

H.    All matters and proof required to .support the Application have been fully

      complied. with and met, and it would be in the best interest of the estate

      and the distributees that the APplication be granted;

I.    The heirship of Decedent has been fully and satisfactorily proved, as well as

      the identity and nature of Decedent's property as being separate or

      community and the interests and shares of each of the heirs therein and are

      as follows:

 ~:                  AddrJ:~~:                ReJl\ti!2D~hill:        Int!:m1:
 Tamara     LaShae 6200 Pershing Spouse                               Ail community property
 Prince            Ave., #381
                   Fort Worth, Texas                                   One-third (1/3) separate
                   76116                                               personal property

                                                                       One-third (l/3) life
                                                                       estate in the separate
                                                                       real property




                                      lRI I'F ,,"n cOf\llt~fIICCWY Uf
                                        \       .,.                 [DIN
                                      Oi'If..ii~.\L ;',i;COhD F..... ,
                                       TAi.n;"...~~-:- CCu~n'. TEXAS.       R~(
                                      SUZ;V;~~f Hnm[RSCN, cout,nYcu. ,.




mg\williams,s.\1it\appi-adminAMND2d.1931 2
 Rodrick Williams, 6200 Pershing           Son             O~e-third (1/3) personal
 Jr.               Ave., #381              Date        of property
                   Fort Worth, Texas       Birth: July 10,
                   76116                   2000            One-half (1/2) of the
                                                           separate real property
                                                           subject to the life estate
                                                           of Tamara Prince in
                                                           one-third (1/3) of the
                                                           separate real property
 Shaleagh Williams   6200 Pershing            Daughter       One-third (1/3) personal
                     Ave., #381               Date        of property
                     Fort Worth. Texas        Birth: January
                     76116                    14,2003        One-half (1/2) of the
                                                             separate real property
                                                             subject to the life estate
                                                             'of Tamara Prince in
                                                             one-third (1/3) of the
                                                              separate real property


L.    Decedent owned personal prop~rty and two laWsuits for Wrongful Death and

      Survival at the time of his death,.October 9, 2006;

M     Decedent had two children Rodrick Williams, Jr. (DOB7/10/2000) and

      Shaleagh Williams (DOS 1/1412003, bomin Tarrant County Texas; and

N.    The Decedent did not leave a will.

      IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED, that

pursuant to § -l45(e), Tex. Prob. Code, that Sheila Williams be named as the

Independent Administratrix of the Estate to serve without bond.

      IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the

mg\williams,s.\Iit\appl-adminAMND2d.193 1 3               rr.u:.: Ar!nCORritC"(cOPv or
                                                          OR1GI~Al f1Eecr.D FilED IN
                                                          TAHH,\Ni COUNTY. TEXAS:
                                                          Sl'ZA~~E H[~IlERSON. COUNTY eLIlIl{
names, ages, marital status and residence addresses of the Decedent's heirs, the

relationship of each heir to Decedent, and the true interest of each of the heirs in

the estate of Decedent are as follows:

 Namt:                MdI!:S~:                   R~lati!lDsl!ill:   IDt!:~t:
 Tamara     LaShae 6200 Pershing Spouse                             All community property
 Prince            Ave., #381
                   Fon Worth, Texas                                 One-third (i/3) separate
                   76116                                            personal property

                                                                    O~e-third     (1/3) life
                                                                    estate in the separate
                                         .                          real property
 Rodrick Williams, 6200 Pershing                 Son             One-third (1/3) personal
 Jr.               Ave.• #381                    Date        of propeny
                   Fon Worth. Texas              B\rth: July 10,
                   76116                         2000            One-half (1/2) of the
                                                                 separate real property
                                                                 subject to the life estate
                                                                 of Tamara Prince in
                                                                 one-third (1/3) of the
                                                                 separate real propeny
 Shaleagh Williams    6200 Pershing              Daughter      One-third (1/3) personal
                      Ave., #381                 Date       of propeny
                      Fon Worth, Texas           Binh: January
                      76116                      14,2003       One-half (1/2) of the
                                                               separate real property
                                                               subject to the life estate
                                                               of Tamara Prince in
                                             .
                                                               one-third (1/3) of the
                                                               separate real propeny




mg\williams,s.\Iit\appl-adminAMND2d.1931 4




                                                                                               761
APPENDIX 7
                                       NO. 153-221491-06
TAMARA LASHAE PRINCE,                               § IN THE DISTRICT COURT§§
INDIVIDUALLY, AND AS NEXT                           §
FRIEND OF RODRICK WILLIAMS, JR.                     §
AND SHALEAH WILLIAMS, MINORS,                       §
AND SHELIA VANESSA WILLIAMS                         §
                                                    §
VS.                                                 § TARRANT COUNTY TEXAS
                                                    §
BALLOU CONSTRUCTION CO., INC.                       §
DAVID L. FOREMAN,                                   §
d/b/a J & D CONTRACTORS;                            §
and GEORGE WESLEY HAIR, JR.                         § 153RD JUDICIAL DISTRICT

                           PLAINTIFF'S NOTICE OF MARRIAGE
       COMES NOW, Tamara Prince, Plaintiff in the above styled and numbered
cause, and would show the Coun as follows:

                                                    1.

       Plaintiff, Tamara Prince, was married to Rodrick Williams at the time of his
death on October 9,2007.

                                                    2.

        Plaintiff, Tamara Prince, would show that her marriage to Rodrick Williams is
presumably valid pursuant to the Texas Family Code, § 1.10 I, which reads as follows:

        In order to promote the public health and welfare and to provide the
        necessary records, this code specifies detailed rules to be followed in
        establishing the marriage relationship. However, in order to provide
        stability for those entering into the marriage relationship in good faith           i!
        and to provide for an orderly determination of parentage and securi~~       ~
        for the children of the relationship, it is the policy of this stat~~~    ~
        preserve and uphold each marriage against claims of invalidity uIJ.l~~~         /:>     .$
        strong reason exists for holding the marriage void or V~~l\~e. ~'\, .;'i:?
        Therefore, every marriage entered into in this state is presum~) be~      , :':"'?
                                                                        (Y';
                                                                        ~,        '.
                                                                                    -<'-              r   ""/~
                                                                                                  c •.1'>..
                                                                         v      'U                ' . '/
                                                                               CO            ......
                                                                                           ",.-
                                                                                            "
\mg\ wiIliams,r.\lit\not-marriageprobatefile.1931    1


                                   ---,._---
                                                                                                      722
      valid unless expressly made void by Chapter 6 or unless expressly made
      voidable by Chapter 6 and annulled as provided by that chapter.
                                                     3.

       Plaintiff, Tamara Prince, was married to Rodrick Williams by virtue of an
informal marriage, which has been properly and duly proven and authenticated
pursuant to the procedures set forth in Sec. 2.401, et seq., Texas Family Code.

                                                     4.

       Plaintiff, Tamara Prince, attaches to this Notice, as Exhibits A and B, certified
copies of the Proof ofInformal Marriage, as recorded in Cause No. 07-0335-1, styled
Estate of Rodrick Williams, Deceased, and filed in the records of Probate Court No.
1, of Tarrant County, Texas.




                                                    JOHN BRENDER
                                                    State Bar No. 24035038

                                                    lAW OFFICES OF ART BRENDER
                                                    Pennsylvania at Eighth Avenue
                                                    600 Eighth Avenue
                                                    Fort Worth, Texas 76104
                                                    (817) 334-0171, telephone
                                                    (817) 334-0274, telecopier

                                                    ATTORNEY FOR PLAINTIFFS




\mg\ williams,r.\lit\not-marriageprobatefile.1931     2

                                                                                       723
                                CERTIFICATE OF SERVICE
      The undersigned certifies that a copy of the foregoing document was served
upon the attorneys of record of all parties to th a ~~ause in accordance with the
Texas Rules of Civil Procedure on this the .             :tY of April, 2008.            ~...
                                                                               .,/'--




                                                                                                          I'
                                                                                                          I'




                                                                                                     II
                                                                                                     Ii




  \mg\williams.r.\lit\not·m.rri.geprob.tefile.1931   3
                                                                                               724
State of Texas
County of Tarrant

         I, SUZANNE HENDERSON, Clerk of the Probate Courts of Tarrant County, Texas, do hereby
certity that the attached pages contain a true and correct copy of the following:


    1. APPLICATION FOR AUTHORlTY TO ENTER INTO CONTRACT
    2. ORDER APPOINTING ATTORNEY AD LITEM
    3. ORlGINAL ANSWER
    4. REPORT OF ATTORNEY AD UTEM
    5. (4) PROOF'S OF HEmSHIPffAMARA PRINCE/SHELIA V.
         WILLIAMS/COREY CONNALLYIMARlO WILSON
     6. SWORN STATEMENT OF SERVICES AND EXPENSES BY ATTORNEY AD
         LITEM IN HEIRSHIP DETERMINATION WITH SIGNED ORDER
     7. SECOND AMENDED APPLICATION FOR DETERMINATION OF HEIRSHIP
         AND TO ESTABLISH INDEPENDENT ADMINISTRATION WITH UNSIGNED
         ORDER
     8. POSTER CITATION ON A SECOND AMENDED APPLICATION FOR
         LETTERS OF INDEPENDENT ADMINISTRAnON PURSUANT TO SECTION
          145(e) OF THE TEXAS PROBATE CODE AND FOR DETERMINATION OF
          HEmsHIP
     9. CITATION BY PUBLICATION
     10. ORDER DECLARING HEIRSHIP AND GRANTING INDEPENDENT
          ADMINISTRATION
     11. ORDER FOR AUTHORITY TO ENTER INTO A CONTRACT


which said original documents and probate proceedings are on liIe in the Cause No. 07-0335-1 styled the
Est.te of RODRICK WILLIAMS, DECEASED                    on the Prob.te Docket and of record in the Prob.te
Minutes of the Probate Court of Tarrant County, Texas.


Given under my hand and se.1 of office at Fort Worth, Texas, On the 11th day or October A. D. 2007.
                                                                                   SUZANNE HENDERSON
                                                                         Clerk Probate, Tarrant County, Tex.s


                                                            By                      • a
                                                                        JANICE CHAMBERS
                                                                                            ttA-I-    Deputy


                                                                                                       ~    PLAINTIFF'S
                                                                                                       i        EXHIBIT
                                                                                                      I           A
                                                                                                                   25
•   ..
                                                                    . rILED       .
                                           NO. 07·0335.1     TARRAIIT COUNTY TEXAS
                                                           ZOfi7HAR-7lM Lt I~_
         ESTATE OF                                §  IN THE PROBAT COURT
                                                  §        SUZAHNE BEIIOERSO!I
         RODRICK WILLIAMS,                        § .NUMBERCew!Fdf. ERX .
                                                  §       BY             Y
         DECEASED                                  §   TARRANT COUNIY, TEXAS

               APPUCATION FOR AUTIlORITY TO ENTER INTO CONTRACT

         TO THE HONORABLE JUDGE OF SAID COURT:

               COMES NOW Tamara Prince, wife and mother of the children of Rodrick

         WiII.iams, Deceased ("Applicant"), and Applicant for the Administration of the

         Estate of Rodrick Williams and files this her Application for Authority to Enter

         into Contl'act, and in support thereof, would show the Court as follows:

                  1.   Rodrick Williams ("Decedent") was seriously injured in an automobile

         accident on October 9, 2006, which ultimately resulted in his death.

                  2.   The Decedent's estate has potential causes of action against various

         individuals or entities responsible 'for the Decedent's injuries which resulted in his

         death.

                  3.   The Law Offices of Art Brender has investigated the potential causes

         of action available to the Decedent's estate and the persons and/or entities

         potentially liable under each cause of action. Applicant asks the Court to allow her

         to retain the services of the Law Offices of Art Brender for the purpose of filing a

         wrongful death survival cause of action on behalf of Decedent'S estate against the


                                                                              SCANNeD
                                                                             MAR 08 Z007



                                                                                              726
                                                                                            "------.
various potential defendants. A copy of the proposed contract is attached as

Exhibit hN and incorporated by reference herein ("Contract").

      4.    The Contract calls for      a contingency of 40% of the gross recovery
after suit is filed. Further. all court COSts and expenses advanced by the attorneys

in connection with the lawsuit shall be paid out· of the client's share of the

recovery.

      5.     Applicant asks the Court· for pennission to file suit against any

deferidants which may be responsible for the injuries sustained by Decedent which

ultimately resulted in his death.

      WHEREFORE. PREMISES CONSIDERED, Applicant asks the Court to

allow her to me suit against any defendants responsible for the injuries sustained by

Decedent which ultimately resulted in his death; that she be allowed to retain the

Law Offices of Art Brender as attorneys to represent Decedent's estate in the

contract attached hereto and made a part hereof for all purposes; and for such

other and further relief to which Applicant may be justly entitled.




                                    ARTB       DER
                                    State Bar No. 02954500

                                    JOHN BRENDER
                                    State Bar No. 24035038


                                                   TRUE Ar~D CORRECT COpy OF
                                                   OR)G!.~"L RECChO FILED IN
                                                   TI'RRANT COL"JTY. TEXAS:
                                                   SUZANNE HENDERSON, COUNTY CLERK


                                                                                     727
LAW OFFICES OF ART BRENDER
600 Eighth Avenue
Fort Worth, Texas 76104
(817) 334·0171, telephone
(817) 334·0274, telecopier

ATTORNEYS FOR APPLICANT
STATE OF TEXAS                      §
                                    §             CONI1NGEN'( FEE CONfRACf
COUNrYOFTARRANI'                     § -         ~M.I~a'" "";I!;4.IM~ -r RaJI';'/(
        This agreement is entered int.9-~een Pl       w Offices of Act. Brender ("Law Firm")
and , ..- f A P :.. &..e. ... f> n ~f'C\i!nt·);r~"l t the aient desires to retain the services of
                 ...
Law Firm and Law Fum agrees to represent alent in a claim for damages or other relief against
              'A.r,f"                                                                    or any
      . person or entity who may be liable for damages which arose out of the.
  t" . . cK (0(1,51011\ ;'" rao~kwtio.... '?('rAe . which occuned In
    ems              County, Texas on or about the!!L day of .Oslo!"'!' , 200"£-.

        1.     CONTINGENT FEE. Law Firm agrees to represent Client for a fee based on a
percentage of the recovery or settiement"of the claim. alent agrees to pay and hereby assigns
to Law Finn as compensation fOI legal services 3? V, % of any and all recovery obtained on
behalf of Client which is obtained by settlement and/or compromise of said claim before suit Is
filed; or.E.1L. % of aU recovery obtained for Client after suit is filed. whether suit Is actually
tried. In the event of an appeal by either side. the Law Firm shall receive an additional ten
percent (10%) of the recovery for· their services in handling such appea1. IN THE EVENT NO
RECOVERY IS MADE ON THE TERMS OF THIS CONTRACf ON CLIENT'S CLAIM,
THE·LAW FIRM WILL MAKE NO CHARGE FOR THE TIME OR EXPENSES.

        2.     EXPENSES. Client agrees to pay for all actual txpenses (court costs, i'ding fees.
deposition costs, medical reports, expert witness fees, photoCopying and other related costs, etc.)
other than ordlnary office expenses, incuned on behalf of Client and Client agrees that any
such expenses which have not been reimbursed at the time of recovery shall be deducted from
ClIent's ~rtlon of any recovery· obtained.

        3.      It shall be the exclusive privilege of Law Fum to determine when and where suit
shall be filed. and whether or not an appeal should be perfected from any Judgment rendered.
No compromise or settlement of Client's claim will be made without the consent of both alent
and Law Firm.                .

         4.     Law Firm Is hereby granted full authority to sign alilegaiinstruments, pleadings,
 drafts. checks, authorizations and papers as shall be reasonably necessary to conclude
 settlement and/or reduce to possession any and all monies or other things of value due to aient
 under this claim as fully as Client could do so in person. All sums due under this contract shall
 be payable at Law Firm's office In Tarrant County, Texas.

         5.     Attorneys agree to txplaln the laws pertinent to Client's problem, the available
 courses of action, and the attendant risks. Attorneys agree to notify Client promptly of any
 significant developments; consult with Client in ad'lan~e on any Significant decisions; and
 make all reasonable efforts to answer Client's inquiries promptly.

 .    6.    . Attorneys agre~ to make available to Client for reading in Attorney's office all
wntten matenals sent or ~elved by Attorneys pertaining to Client'S case. At Client's request,


                                                       EXHIBIT
                                                          A
                                                                                                         ...
                                                                                                           J



                                                                                                      729
,. .,.
will provide photocopies of any material from alent's file at a cost of twenty cents per page.

         7.     Nothing herein shall be interpreted to limit or restrict the Law Pirm's
 professional obligations under any ethical rule of the Texas Bar or that of any Federal Court.

        8.'· In the event Client tdmlnates this contract the Law Firm Win be entitled to a fee
 based on a reasonable hourly rate or set or contingent fee for all work performed and time spent
 In pursuit of this claim prior to the termination of this conuact.

         Nodce to Clients. The State Bar of Texas Investigates and prosecutes
  professional misconduct committed by Texas attorneys. Although not every complaint
  against or dispute with a lawyer involves professional misconduct. the State Bar'S
. Office of General Cuunse1 will provide you with Infonnadon about how to file a
  complaint. For more Infonnadon. please cai\ 1·800-932·1900. This is.~ toll·free cai\.

 [ ]     9.·     (Only applicable if box Initialed by Law Pirm)
               . Other.                         .



         WITNESS OUR HANDS            this the.l1..- day of    OCf-oOc!//. 2006.

 cni     ttmttlM        c({iAee . . . ra~DER
                                                        600 Eighth Avenue
                                                        Fort Worth, Texas 76104
 CUENT                                                   (817) 334'()171, telephone




                           mUE MID CORRECT COPY OF
                           OIliGINAL GEeDI'D FiLED IN
                           TARRANT COUNTY. TEXAS:
                           SUU~~E   HEkOERSCN, COUNTY CLERK




                                                                                                    730
                                    No. 07-0335-1

IN RE: ESTATE OF                           §   . IN THE PROBATE COURT
                                           §
RODRICK WILLIAMS,                          §   . NUMBER ONE FOR
                                           §
DECEASED                                   §    TARRANT COUNTY, TEXAS

             ORDER APPOINTING ATTORNEY AD LITEM
                  PURSUANT TO §34A and §53(c)
                 OF THE TEXAS PROBATE CODE

       On this day, the Court, pursuant to §34A and §53(c) of the Texas
Probate Code, nndslt necessary to appoint an Attorney Ad Litem to
represent the interests of any living. beirs of the Decedent herein whose
names or whereabouts are unknown, or who may be minors or under a
legal disability in this proceeding.

      IT IS THEREFORE ORDERED that KELCIE A. IDBBS, who Is an
attorney licensed to practice before this Court, and whose telephone
number Is 817-377-0060, is appointed as Attorney Ad Litem to represent the
Interests of any living heirs of the Decedent herein whose names or
whereabouts are unknown, or that may be minors or under a legal
disability in this proceeding.

      IT IS FURTHER ORDERED that the Attorney Ad Litem is to be
considered an officer of this Court and is to be given access to all of the
Decedent's personal, financial, or medical records. This Order Is issued
pursuant to 45 CFR 164.512(e)(I)(I) Health Insurance Portability and
Accountability Act whIch authorizes covered entities to disclose protected
health Information in the course of any judicial or administrative
proceeding when responding to an order ofthe Court.


      SIGNED this March 21, 2007.



                                                 M.
                                           JUDGE PRESIDING
        TRL': M:D CORRECT COPY Of
        on:GINAL RECORD fiLED IN
        Tf,RRANT GO~NTY. TEXAS:
                                                                  SCANN&D
        SUZANNE K[l':OERSCN. comnv cu:m<
                                                                  MAR 3 02007



                                                                                731
                                                                         TAP.R:;rj[6u78 y TtXAS
                                                                        2DD7 HA~ri?«~: 37
                                      CAUSE NO. 07o(J335·1              SUZA1:W'F""-

                                                                                                       .
                                                                                        0        •




IN RE: ESTATE OF                               j              IN THE    p~J~~g6~!:L
RODRICK WILLIAMS,                              §              NUMBER ONE                    -
                                               §
DECEASED                                       §              TARRANT COUNTY, TEXAS


                                       ORIGINAL ANSWER

TO THE HONORABLE JUDGE OF SAID COURT:

         COMES NOW, KELCIE A. HIBBS, Attorney Ad Litem, and files this her Original

Answer, and would respectfully show unto the Court the following:

                                                   I.

         KELCIE A. HIBBS, Attomey Ad Litem, denies each and every, all and singular, the

allegations contained in the Application for Determination of Heirship, Independent

Administration and Guardianship and First Amended Application for Determination of

Heirship filed by Applicant, TAMARA PRINCE, and demands strict proofthereof.

         KELCIE A. HIBBS requests that this Court award a reasonable fee to her for the

services she perfonns In this cause.

         WHEREFORE, PREMISES CONSIDERED, KELCIE A. HIBBS, Attorney Ad Litem,

prays that TAMARA PRINCE take nothing by her Aoplication for Detemlnation of Heirship.

Independent Administration and Guardianship and First Amended Application for

Determination of Heirship; and that she go hence with her costs without day.



OIUGtNAL ANSWER. Rodrick Williamt
                                                                                            ·PI!!"I

                                    TRU, ~tm CCRRECT copy Of
                                    OR\G\~~l HcCGF.D fiLED iN                  SCANNED
                                    T~RRAm COL"'lY. TEX"$'. "lY CLERK
                                    SUZANNE f\E~DERS()N. COli .•
                                                                              MAR 2 1 20D7


                                                                                                      732
                                            Respectfully submitted,




                                             KELCIE A. HIBBS
                                             Attomey Ad Litem
                                             4420 W. Vickery Blvd.
                                             Fort Worth, Texas 76107
                                             6171377~060 Fax: 6171377-1120
                                             State Bar No. 09567450


                                     CERTIFICATE OF SERVICE

       I do hereby certify that a true and correct copy of the above and foregoing QMlnal
Answer has been delivered by Fax to Mr. Art Brender, attomey for Applicant, 600 Eighth
Ave., Fort Worth, TX 76104, Fax #617/334-0274, on March 23, 2007.
                                                         kM-c.v- ..      \~
                                             KELC1E A. HIBBS




OIUOINAL ANSWER Rodri<:k WilllilmS
                 p                                                                     • hgc2 .



                                                TRUE r.r:D CORRECT COpy OF
                                                ORIGINAL f:'cur;D FILED IN
                                                T;\RRArn cu~mTY. TEXAS:
                                                SUlAr-.~NE Ha~DERSON. COU:-~TY CLERK


                                                                                                    •
                                                                                              733
                       •
IN RE: ESTATE OF

RODRICK WILLIAMS,

DECEASED


                                 REPORT OF ATTORNEY AD LITeM

TO THE HONORABLE JUDGE OF SAID COURT:

        NOW COMES, KELCIE A. HIBBS, a practicing attorney In Tarrant County, Texas,

having been appoInted by this Court as Attorney ad LItem for the unknown heirs of

RODRICK WILLAMS, Deceased, pursuant to §53(c) of the Texas Probate Code, and

makes and files this report to the Court as follows.

 1.      As Attorney Ad Litem, I received a file-marked copy of the          First Amended
         Application for Determination of HeIrship filed In this matter, together with other
         documents. I reviewed copies of the documents on file furnished by the Court and
         spoke with the attorney for the Applicant herein.

 2.      On or about March 23, 2007, I filed an Answer with this Court on behalf of the
         unknown heirs.

3.       On or about March 23, 2007, I contacted Counsel for the Applicant requesting
         further Information concerning the Decedent's personal history and family
         background.

4.      RODRICK WILLIAMS, whose date of birth was November 8, 1979, died intestate
        on October 9, 2006 at the age of twenty-six (26) years. The Decedent's mother is
        Sheila Williams Evans, and his father is Kenneth Jacobs. Decedent's alleged
        spouse Is the Applicant herein, Tamara Prince. Decedent and his alleged wife,
        Tamara Prince, had two (2) children born to them durlng their cohabitation, being
        Rodrick Jerome Williams, Jr" born July 10, 2000, and Shaleah Rachelle WIlliams,
        born January 14, 2003, To the best of your Attorney Ad Litem's knowledge,
        Decedent had no other children born to or adopted by hIm during his lifetime.

!U;PORT Of ATroRNEY AD LITEM - Williams
                                                                                     • Paso I


                                                                    SCANNED
                                                                    APR 16 Z007



                                                                                                734
5.
                        •
        I have contacted the following persons to verify the Information provided In the
        Application and to determine the existence and location, as applicable, of any
        unknown heirs of the Decedent, RODRICK WILLIAMS:                                .
                                                                               I
        A.        Sheila Williams Evans, mother o~ RODRICK WILLIAMS;

         B.       Correy Connally, cousin of RODRICK WILLIAMS; and

         C.       Tamara Prince, Applicant herein and alleged spouse of RODRICK
                  WILLIAMS.

6.       Based on the above-described Infonnation and my Investigation, your Attomey Ad
         Litem Is of the opinion that a true, correct, and complete listing of the heirs of the
         Decedent and their respectlve shares are correctly reflected on the attached
         Exhibits to this Report.


DATED:            April 13, 2007.

                                                       Respectfully submitted,

                                                                . K <u' ./J-v..->
                                                                   4,i
                                                       KElCIE A. HIBBS
                                                       Attomey Ad Litem
                                                       4420 W. Vickery Blvd.
                                                       Fort Worth, Texas 76185-0609
                                                       817/377-0060 Fax: 8171377-1120
                                                       State Bar No. 09567450


                                        CERTIFICATE OF SERVICE

        I do hereby certifY that a true and correct copy of Ihe above and foregoing Report
of Attorney Ad litem has been delivered on April 13, 2007 via fax to the following counsel
of record: Mr. Art Brender, Attorney for Applicant, Tamara Prince, 600 Eighth Ave., Fort
Worth, TX 76104, Fax #: 817J334.()274.


                                                       KElCIE A. HIBBS




REPORT Of AnoRNBY AD lrr'a"t; .. Williams
                                                                                        • Pag' 2



                                      TRU:: At~D CORRECT COPY Of
                                      bRIG'~AL RECORD FILED IN
                                       TARB,\NT CG:J,'iTY, TEXAS:
                                      St!Z M~fJE. HEr-.:aERSCN, COUNTY CLERK
                     EXHIBIT "A" TO ATTORNEY AD LITEM REPORT


ROORIGI{ WILLIAMS (Decedent)
Born: November 8, 1979 to SheUa Williams Evans
      and Kenneth Jacobs
Died: October 9, 2006, Fort Worth, Tarrant County, Texas


Common Law Marriage
    Tamara Prince                                 1.00 of Decedent's community real
                                                        and personal property
                                                   .333 of Decedent's separate personal
                                                        property
                                                   .333 life estate Interest of Decedent's
                                                        separate real property

        a.      Rodrick Jerome Williams, Jr.,
                son, born July 10, 2000            .333 of Decedent's separate personal
                                                        Property
                                                   .50 of Decedent's separate real
                                                        property, subject to 1/3 life estate
                                                        Interest of Tamara Prince

        b.      Shaleah Rachelle Williams,
                daughter, born January 14, 2003 .333 of Decedent's separate personal
                                                     property
                                                .50 of Decedent's separate real
                                                     property, subject to 1/3 life estate
                                                     Interest of Tamara Prince

                                                   1.00




 IIuoRTOFATTORNI!Y AOl.miM. Williams                                                  • Pagel




                                           TRll!' ~rm CORRECT COPY OF
                                            OHiG!N~L   EEGCRD fiLED IN
                                           TARRMlT GC'jNTY. TEXAS:
                                           F-l'Z.ANNE K(~DERSCN. CaUl-lTV CLER!{



                                                                                                736
                       gxHI81T "8" TO ATIORNEY AD LITEM REPORT


                                   HEIRS OF RODRICK WILLIAMS

                                                                   100% of Decedent's community
1.       TAMARA PRINCE, surviving spouse
                                                                   real and personal property
         300 Lonesome Trail                                        33-1/3% of Decedent's separate
         Haslet, TX 76052                                          personal property .
                                                                    113Ure estate Interest In Deceden fs
                                                                    separate real property

          RODRICK JEROME WILLIAMS, JR., son                        33-1/3% of Decedent's separate
2.                                                                 Personal property
                                                                   50% of Decedent's separate real
                                                                   property, subject to 1/3 life estate
                                                                   Interest of Tamara Prince

 3.        SHALEAH RACHELLE WILLIAMS, daughter 33-113% of Decedenfs separate
                                               Personal property                   .
                                               50% of Decedent's separate real
                                               property, subject to 1/3 life estate
                                               Interest of Tamara Prince

                                                                     100%




                                                                                                    • Page 4
     REroRT OF ATTORNl!Y AD LrrcM· Williams




                                               TAU"    M~D      C08RECl COpy OF
                                               OR~r.;!~~r"\l_
                                                         f;Eccr;o FILED IN
                                               "TARn.\NT COtINTY, TEXAS:
                                               SU'ANI·!E H[~DEP.SOiJ, COm,nY CLERK



                                                                                                               737
                                                      "                             ""




                                                  d   N~. 47--03 X:-/
ESTATE OF             RoJr,'ot,. Wi /ffOA1Y                               IN TIlE    PRC)~fio:mfIf't::~:!-l
:r'fi7m~f# )A. 7fiJ1e /Awcc                                      ~
                                                                 }
                                                                          NUMBER ONE OF

.DECEASED                                                        )        TARRANT COUNTY. TEXAS

                                                 PROOF OF HEIRSHIP

On this day, the undersigned Affiant. ("Affiant"), person:aJly appeared in: open court, and after being duly
swom, deposes and says that:

1. "My name and residence         a~ arns fonows: !ilmM£ltt ~4:JdL'
       1716 tf.r,U{)VCsUZV CtI.C'-r::t~ Mi~~
2.   I was pers~allY aC~a!nte~ with IoMI CK Mkl,/ltntJ. ("Decedent"), who died on
         Ocr _ UJO_                 m         ",:)::L..lf.<;
                                                   ..                      "~.                     County. Te;o;as,
     at the age f                                           fears. I ~have 0 do not have an Interest In the estate "
     of Decedent and ~am 0         8.IIl   not related to Decedent under Texas laws of descent and distribution.

3. Decedent was ~                a:-¥"                    "
                                                ~ time{s). as follows:
   A. te TlfAttJ&,:.:.                  Z4::."U$5-
                                               J:K!~              who                     .
      o predeceased the Decedent on or about Y "                                                                   ,    (or)
      o was divorced from Decedent on or about
         '1.~ved '" D~""" "" W ""
          t)   @Il.k.kf,~'i
           2. ~t;E&lFlh/..l./4s
                                                          """''!1f€
                                                          :
                                                              bom
                                                              born
                                                                     0    axJwho~smvivedOdiedon
                                                                           dl!3vho       ~survived 0
                                                                                                        """'" """'"
                                                                                                       died on
                                                                                                                       , (or)

                                                                                                                               :
                                                                                                                               ;
     ·ate                                                      .~
          o predeceased the Decedent on                                                                            • (or)
          o was divorced from Decedent on                                                                               (or)
         \0 ~mt~:d to sai~marriavere honL-                                                    :        ~e~
         ~                                            ~_                 __wnoSswytiei6diedon              ;
          2.                                              . bQrn            who 0 smvivad 0 died on "
                                                                                                    ____---'

4.              adopted _ _ childreJli,-liftmel:1l:...
          ~~~--------~~------~~~~====~~~~mN~~~on ___~~
               ~------::-r-------' bom _ _ _ _ _ who                                     0 smvived 0 diell~=:::::::::"";



     SIGNED on      ---f-ryf+f;~~(J"-f7,---.
                                                                     Affiant
                                                                                                                 ?-rftIJ
     SWORN TO AND          SuBS~ED BEFORE ME b~·                                              L.       & "
          ~ SUZANNEHENOE:~
     .
          ~ ~C~~-                                 .....~             "


                            Dennette Hamilton. o e p u t y - - - - - -
                                                                                 ------ ~                NEb.
                                                                                                   APR 1 9 20117


                                                                                                                            738
                                                       NO.         01-D3
 ESTATE OF                                                         }            IN mE       PR'\)tiATI:! ~RAHT co . IDAS
                                                                                                           ar~
          t20i r-: c::K. I..V ~,\ ~ a<M(,                          }
                                                                   }           NUMBER ONE OP
                                                                                                                               Oeputy


                                                                   }
.DECEASED                                                          }           TARRANT C9UNTY, TEXAS

                                                   PROOF OF HEIRSHIP

 On this day, the undersigned Affiant, (0 Affiant"),personally appeared in open court, and after being duly
 swotn, d~ e.nd says that:

 1. "M name and residence address are' as follows:                     .2!~~~iJL~~+-211J02:f~~~§!:.._
                                             ~

. 2. 1 was perso!!ally~ted with                            r,' l    vj.\t'    lM   S         _,    ("Decedent"), who died on
      ();;tb-bt:'f~~ In                              1#~~\J<'XAt..cI.~.·                     I                       County,Texas,
     at the age of   ~"                      years. 1 a have     0 not have an Interest In the estate .
     of Decedent and ~ a am not related to Decedent under Texas laws of descent and distribution.

 3. Decedent was nwried               0 !he..                time(s), as follows:
    A. to        T<1v-t ... t...    c:ePr: . .                             , who
        o predeceased the Decedent on or about                                                                                 • (or)
        O. was divorced from Decedent on or about                                                                               , (or)
        I9""survived the Decedent; and to sald marriage were born          .2-                                     children, nanieiy:
         • 1.          !?e:t.Ir\fl(t..J,l!ia",~ :Jr,        .bom71JO(Oqwho~vedOdiedon                                                   :
            2. Shtle~C;:             W; \(ja<'\ "i          ,b~.iilly/62 whoO'survived 0                       died on                  :,
     ·am                                                           ,~
          o predeceased the Decedent on                                                                                      , (or)
          o was divorced from Deced                                                                                             (or)
                 survived the De           . and to said               e were born                               children, namely:
            1.                                              , bom                      w      urYl             died on _ _--'
            2.                                              . bom                      who 0 survived 0 died          on .'--_--',
4.



 • Further, 'Affiant saith noL

     SIGNED on _4~/f~f.:,:..!...f:::.{)....:1_~                          "JJ;t 4,) V.jfJi1.~
                                                                           Affiant


     SWORN TO AND SUBSCRIBED BEFORE ME by,A
         ,J;--;:;;'"
                                     . '

                         SUZANNE HENO RSON. COUNlYCLf K
                                                                   ~~W~'
                                                                                       on        ttr   A   ;   0lb
                                                                                                               /
                                                                                                                           ~I)
                                                                                                                           .~
     .   I"~'\I         ,                  s ...
         ~
                                                                                                  SCAJINED
                                                                                                  APR 1 II zaa7

                                                                                                                                        73£
                                                                    }           IN TIm pIto~!l'~~~t!'WfIl-,
                                                                    }
                                                                    }           NUMBER ONE OF
                                                                    }
                                                                    }           TARRANT     C~UNTY,    TEXAS

                                                     PROOF OF HEmSBIP




                                                                                                                      , (or)
                                                                                                                        (or)
                                                                    ge were born                        children, namely:
                                      born               survived 0 died on _ _--'
                                                  '
               _ _ _ _ _ _ _ _ _ _-', born _ _ _ _ who 0 survive


                                     Chi1;;Fel
                                     _
                                                           Y:
                                                                  born    who 0 survived 0 died On                             .
                                                                                                                               .
                                     ~
                                     .               ,                                          .
                                                                .born____ who 0 survived (J died on
                                                                _



                       ¥(, II) 2
    5. Further, Affiant saith not.

        SIGNED on
                                                                            f:y:~                              .
                                                                          Affiant     .
               .        '.         .'                           ~C¥JtL~                            /               ~
        SWORN TO AND SUBSCRIBED BEFORE ME                               b~•.d        on   ~/J.w4?                  ,19,::.
,                         S\l1lIIlNE HEIIOERSOII. COUNlY CLERI(                 ~ t. \           -= 44.....
                          lMlRAN1COUNlY,TOOS                                     ~ ~ ~
                                                                          ----~~~~~~~-~~

                             B'I   Oenne\\e Hami\\Dn, Of\lutv

                                               •                                            APR 1 9 2007

                                                                                                                               740
                                                                   -----            .--'-
                                                                        NO.

             ESTATE OF,                                                            }
                                                                                   }
                       Rcd/'ldc    W:t\~qoM.5"                                     }
                                                                                   }
            .DECEASED                                                              }                  TARRANT C!JUNTY. TEXAS
                                                                       PROOF OF HEIRSHIP

             On this day, the undemgned Affiant, ("AffIant"), personally appeared In open court, and after being duly
            sworn, deposes and says that:

             1. "My name and residence address are' as follows:
                         roC±     V\}attm ) 4<                     71:; I'-JD
            2. I was personally acquainted with   Goa.r k                         Ie          w: \\
                                                                         ~ aIM '5 " ("Decedent"), who died on
                 Oct12ger 1)20Gb In t.V,""I<:4IMd-tiC                    ,F-lh5                     County, Texas.
               at the age of      ?k /                     years. I 0. have LYllo not have an Interest In the estate '
               of Decedent, and 0. am \if not related to Decedent under Texas laws of descent and distribution.
                                         am

                                              _______ ti.me(s), as follows:
     3. Decedent was IIUUrled "r"<"_-::O~"":.:g".
-----   A. to      Tt\I/. ,.'\t4 ~'f I M<!,:                              , who
            0. predeceased the Decedent on or about _ _ _ _ _ _ _ _ _ _-'-_ _ _ _-.>, (or)
            O;vas divorced from Decedent on or about                                               , (or)
           8 survived the Decedent; and to said marriage were born    ~O               children, nmneiy:
~~~jl        1. !l?a:;l.r;c!.-<. w;t~;'l~? >S"r. ,born :l1l o ld> who cYsurvived Cl died on               ;
~~        tC;'
             2. "?\yI. \ -e~"'" W, \ I.ltyMQ      . born 1I1'=1/Q3 who Il:Ysumved 0. died on _ _ _-'
;,;~~o·B.to                                                                   ,who
:r.:gpc
c c~oo                                                   on                                                     (or)
6z.s:,~
;;tc'O                   Cl was divorced from DeCedent on                                                        (or)
 ~-43!-i
 .....   ~,C')           Cl survived the Decede                maniage                             children, namely:
 :--),8°
 C"l til     .1)          1. _ _.,......::::::::..._ _ _ _ _---' born _ _ _ _ who SUl'Vl                   ~
 0'· :::;-<.
 'c  .:;. 0
  ?              -r1      2.                                 ' born           who 0. survived 0. died on ''--_ _-',
   :(
    C'l
    f;\     4. Decedent adoPt~  en, namel~:
                               ~.
     ~              1.     ~                born who a grorjved q died On  ?
                   '2.         ~ ,born _ _ _ _ who Cl survived Cl died on _-,---'
            5. Funher, Affll!llt saith not.
                       SIGNED on        Y/lb(07
                                                                                       ~~         Affian       '


                                            SuBS~ED                               ~ ~ ~~ /1.:, j~
                                                                                                                                  I




                         e
                       SWORN TO AND

                       , W
                          ~~ B
                                   S       EHENDERSON. COUNTY CL
                                       RRAN OUN • EXAS ~
                                              e
                                                                  BEFORE
                                                                                                           '

                                                                                                               ~,
                                                                                                                             /'
                                                                                                                             _

                                           Oennetle Hamilton, Deputy                                           SCANNEr)

                                                                                                               APR 1 9 2am

                                                                                                                                      741
                                                        --         --         -    '-'-   -_ ..   '
IN RE: ESTATE OF
                           •                  CAUSE NO. 07"()335·1

                                                    §
                                                                               TARRAI/F"'LcD
                                                                    IN THE PROBATE c36WfiTYr""hlS
                                                    §                          .   l007APR 16       ~.
RODRICK WILLIAMS,                                   §               NUMBER ON~                 Nt 3: 19
                                                    §                                U~~2 }jr:,,~C"
.DECEASED                                      .    §               TARRANT~~U           ',~1IJlON
                         SWORN STATEMENT OF SERVICES AND EXPEN'SEs---~
                        SYAT!'0RNEYAO LITEM IN HEIRSHIP DETERMINATION-

       ON THIS DAY, personally appeared KELCIE A. HIBBS, Attomey ad Litem, known to me, who first
being duly sworn upon oath to tell the truth, deposed and stated:

       •       I am an attorney licensed to practice law in the State of Texas and appointed by the
       Court in this cause to represent unknown heirs. I have performed all of the servlces required
       under the due diligence policy promulgated by the Probate Courts of this CQunty•
       •         I therefore request the following fees and expenses for my representation:

                 Attorney Ad Utem Fee:                                    $350.00
                 Expenses and Reimbursement Requested:                    $-0-

       Total of Attorney's Fees and Expenses Requested:                    $350.00
                     /4A tM,' •   II-<-
Slgnature:._-:-;:=:-c=,..,....~=-::-_ __                      Taxpayer 10158#: 464-23-7387
                 KELCIE A. HIBBS                              Bar Card #: 09567450
Address:         4420 W. Vickery Blvd.                        Phone Number: 8171377-0060




      e
                 Fort Worth, Texas 76107

    ,...~~~-'B.~O;J.S~~O~RN~TO BEFORE ME on April 16, 2007.
                    SADIE LOU BOYD
       • ~•         NOTARY PUBlIC
           ,~,      STATE OFTEXAS
                   My Comm. EJ<p.I)4"9-Z00g
                                                           ORDER

       ON THIS DAY, the Court heard and considered the foregoing; and the Court finds that said Attorney
Ad LItem has rendered necessary services on behalf of the §53 heirs In this case, that such Attomey's fees
and expenses are reasonable and Just, and should be paid.

        It is therefore ORDERED, ADJUDGED, AND DECREED that said Attorney be paId the total sum of
$350,00, to tiiltaxed as cosis against the Applicant herein and to be paid from funds held in the registry of
this Court for such purpose, with any balance due to be paid by the Applicant herein within thirty (30) days
of the date hereof.

        It Is further ORDERED, ADJUDGED, AND DECREED that this appOintment is terminated, and that
the Attorney named herein is discharged as Ad Litem in this cause.

        SIGNED this      ~.;JI)(%.                        ,2007.


                                                    JUOGEP
                           mUE AND CORR~C,T     co,"" OF
                           O(~i;:;~AL r.i(COkD rlU:O IN
                           TAi\~;ANl COUNiY, T(XA5:
                           SUZANNE HENOERSON. COUNTY CLERK                                   APR 1 7 2007

                                                                                                                74~   i
•




    ESTATE OF

    RODRICK WILLIAMS,

    DECEASED

        SECOND AMENDED APPUCATiON FOR DETERMINATION OF
      HEIRSHIP AND TO ESTABUSH INDEPENDENT ADMINISTRATION
                                        .    .
    TO THE HONORABLE}UDGE OF SAID COURT:

          Tamara Prince("Applicant") furnishes the following information to the Court
                                 .    ~                 .

                              . . .
    concerning the Estate of RodrickWi!1iams, Deceased, and seeks a determination. of
                                                 .               .


    the heirs of Rodrick Williams, Deceased, and to establish an fndependent

    administration.

                                            1.

          Rodrick Williams ("Decedent") died on October 9, 2006, in Ellis County,
                                                               .            .

    Texas, at the age of twenty-siX (26) years. Decedent's· domicile and fLxed place of

    residence at the time of his death was Tarrant County, Texas. Four years have not

    elapsed since Decedent's death prior to the filing of this Second Amended

    Application.

                                            2.

          Decedent died intestate. An administration of the estate of Decedent is

    necessary to pursue claims on behalf of the estate. Applicant further moves the

    mg\wllliams,s.\)it\appl-adminAMND2d.193I 1                           SCANNED
                                                                         MAY 21 2007




                                                                                          743
 Court to establish an independent administration and for the independent

 administrator to serve without bond.

                                         3.

          At the time of his death, Decedent did not own any real property.

 Decedent's personal property has a nominal value. However there is a wrongful

 death and survival action contemplated for personal injuries sustained by the

 Defendant which ultimately resulted in his death. Values are undetermined at this

. time.

                                          4.

          Decedent was married one time during his lifetime, informally, to Tam,ua

 LaShae Prince, Applicant herein. On March I, 1999, Decedent and Applicant

 began a relationship in Fort Worth, Tarrant County, Texas in which they began to

 live together as man and wife. During this relationship, Decedent referred to

 Applicant as his wife and Applicant referred to the Decedent as her husband.

 Decedent and Applicant continued to live together and hold themselves out as

 husband and wife until Decedent's death on October 9, 2006. Two children were

  born of the informal marriage of Decedent and Applicant: (l) Rodrick Williams Jr.,

  born July 10, 2000, in Fort Worth, Tarrant County, Texas; and (2) Shaleah

  Williams, born January 14, 2003, in Fort Worth, Tarrant County, Texas. Both



  mg\williams,s.\lit\appi·adminAMND2d.1931 2




                                                                                       744
minor children survive the Decedent. No, other children were, born to or adopted

by Decedent during his informal marriage to AppliCant. and no other children were

born to or adopted by Decedent during his lifetiine.

                                          5. '

      Applicant is a person interested in said estate by reason of being an heir and

iUstnoutee of Decedent's estate pursuant to §§ 38 and 45. Texas Probate Code.

The only heirs to Decedent; the relationship of each heir to Decedent; and the true

interest of each heir of Decedent art! as follows:

 Nam!::                  AddIeSS:            IklatiQmhij2:   Int~rI:Sl:

 Tamara     LaShae 6200 Pershing Spouse                      All community property
 Prince            Ave., #381
                   Fort Worth, Texas                         One-third (1/3) separate
                   76116                                     personal property

                                                             One-third (1/3) , life
                                                             estate in the separate
                                                             real property
 Rodrick Williams. 6200 ,Pershing            Son             One-third (1/3 ) personal
 Jr.               Ave., #381                Date        of property
                   Fort Worth. Texas         Birth: July 10.
                   76116                     2000            One-half (1/2) of the
                                                             separate real property
                                                             subject to the life estate
                                                             of Tamara Prince in
                                                             one-third (1/3) of the
                                                             separate real property
                     ,




                                                        TRU~ JI,r~D CORRECT COpy OF
                                                        O~IC!NAL ~;I':CCRD FILED IN
                                                        TARr~ANT COUNTY, TEXAS:
                                                        SUZANNE HE~DERSDN, COUNTY CLERK




                                                                                          745
                                                                          .



 Sh:ileah Williams    6200 Pershing         Daughter       One-third (1/3) personal
                      Ave_, #381            Date        of property
                      Fort Worth, Texas     Birth: January
                     ·76116                 14,2003        One-half .(1/2) of the
                                                           separate real property
                                                           subject to the life estate
                                                           of Tamara· Prince in
                                                           one-third (1/3) of the
                                                           separate real property



                                           6.

       All children born to or adopted by the Decedent have been listed.

 Furthermore, each marriage of the Decedent has been listed with the date of the

. marriage, the name of the spouse, and If the marriage was terminated, the date and

 place of termination, together with other facts showing whether a spouse has had

 an interest in the Decedent's property.

                                           7.

       There are no debts owed by Decedent.

                                           8.

       No party has made a claim adverse to that of the heirs listed above.

                                           9.

        Pursuant to § 145(e), Tex. Prob. Code, Applicant moves the Court to declare

 SheJia Williams as the Independent Administratrix of the Estate to serve without



 mg\williams,s.lJit\appl-adminAMND2d.1931 4




                                                                                        746
     . --- ...- , - - - - - - - -
bond.

        WHEREFORE, PREMISES CONSIDERED, Applicant prays that citation be

issued as required by law; that the Court enter an order determining the heirs of

the said Decedent and their respective shares and interests in the Estate of

Decedent; that the Court declare that Applicant   an~   Decedent were informally

married at the time of the Decedent's death; that the Court approve the attorney

contingent fee contract pursuant to § 665c, Tex. Prob. Code; that the Court order

an independent administration of the Estate and that the Independent

Administrator shaH serve without bond; and that the Court enter such other and

further orders as the Court deems proper.

                               Respectfully submitted, .




                               JOHN BRENDER
                               State Bar No. 24035038

                                LAW OFFICES OF ART BRENDER
                                600 Eighth Avenue
                                Fon Worth, Texas 76104
                                (817) 334·0171, telephone
                                (817) 334·0274, telecopier

                               ATTORNEYS FOR APPLICANT

 mg\wiUiams.s.\lit\appl·adminAMND2d.1931 5

                                                   TRUf A~m COriRECT cory or
                                                   OrHC:~!At r;C=CCf\8 fa.EO I~~
                                                   TMlflMJT CCHh rr. TEXAS:
                                                   SU7ANNE Ht~OtJiSC:N. CCU~JlY CLERK



                                                                                        747
THE STATE OF TEXAS § .
                           §
COUNTY OF TARRANT§

      BEFORE ME, the .undersigned authority, personally appeared TAMARA

PRINCE, who, upon being sworn, did upon oath swear and state as follows: '

      "I am over the age of eighteen years and otherwise competerit to make this

Affidavit; I have read the Second Amended Application for Determination of

Heirship for the Estate of Rodrick Williams, Deceased, and to Establish

Independent Administration, wherein I am the Applicant; aU of the allegations .
                                    . '                        . .
contained in such Application are true' in substance and in fact and fact and no

material fact or circumstance has, within the my knowledge, been omitted from

such Application."



                                        TAMARA PRINCE, Applicant


       SWORN TOANO SUBSCRIBED BEFORE ME by TAMARA PRiNCE on

this the   11tfray of May, 2007, to certify whi   'tness my' hand and seal of office..




 mg\wilIiams.s.llitl.lppl-adminAMND2d.1931 6

                                                  TRU~   Ar:D CORRECT cory Or-
                                                  OP!GNAL RfGO~O FILED II:
                                                  T.~-RP'A~lT COUNTY. TEXAS:
                                                  SUZANIJF. HE~DEIlSON. CQUNlY CLERK
                                       NO. 07-0335-1

ESTATE OF                                        §     IN THE PROBATE COURT
                                                 §
RODRIcK WILLIAMS,                                §     NUMBER ONE OF
                                                 §
DECEASED                                          §    TARRANT COUNTY, TEXAS

                  ORDER DECLARING HEIRSHIP
           AND GMNTING INDEPENDENT ADMINISTRATION

      On. this day., came on to be heard th~ Second Amended Application for

Detemiination of Heirship and to Establish Independent Administration (the

"Application") filed by Tamara Prince ("Applicant"). The Court, after considering

the pleadings, the   evidence~   and the statements filed herein, finds that:

A     Service of citation has been made in the manner and                ~or   the length of time

      required. by law, and all parties interested in the estate have executed the

      Application or have been duly served with citation as required by law;

B.    Rodrick Williams ("Decedent") is dead, having died on October 9, 2006, in

      Ellis County, Texas;

C.    Decedent was domiciled in and had a fixed place ·of residence in Tarrant

      County, Texas, at the time of his death;

D.    Four years have not elapsed since the death of Decedent and this Court has

     . jurisdiction of Decedent's estate;                                           •


E.    Decedent died without leaving a lawful will;


mg\williams,s.\lit\appI-adminAMND2d. I 931 1                                       SCANNED
                                   TRUE AI;9 CORRECT COpy OF
                                                                                   MAY 21 2007
                                   08:G!~':Al RfGCF.D FiLED IN
                                   TARR~~~T CG:..iNTY. TEXAS.
                                   SL'ZANr" Hf~Dm'SON CO· U"TY G
                                                     ""         l£fi!{


                                                                                                    749
 F.    Decedent was informally married to Tamara LaShae Prince on the date of

        death;

. G.    There is no need for appointmerit of appraisers for this estate;

 H.    All matters and proof requited to. support the Application have been fully

        complied with and .met, and it would be         in the best interest of the estate
        and the distributees that. the Application be granted;

 1.     The heirship of Decedent has been fully and satisfactorily proved, as well as

        the identity and nature of Decedent's property as being separate' or

        community and the interests and shares of each of the heirs therein and are

        as follows:

   Nmu::                Address:                 B~lali!lDSbjl2:   . lnl!:rtst:
   Tamara        LaShae 6200 Pershing Spouse                        All community property
   Prince               Ave., #381
                        Fort Worth, Teicas                           One-third (1/3 ) separate
                        76116                                        personal property

                                                                     One-third ( 1/3) life
                                                                     estate in the separate
                                                                     real property .       .




  mg\williams,s.\lit'lappl-adminAMND2d.193 1 2
                                                      mlJ= ;.r:~ CC,RRECT COpy OF
                                                      on:G!~AL F;~;CGnD FILED IN
                                                      TARnNJT CQl;my, TEXAS:
                                                      SUl':!~:NE HE~OERSCN. COUNTY CLERK
 Rodrick Williams, 6200 Pershing            Son             O~e·third (113) personal
 Jr.               Ave., #381               Date        of property
                   Fort Worth, Texas        Birth: July 10,
                   76116                    2000            One·half (1/2) of the
                                                            separate real property
                                                            subject to the llfe estate
                                                            of Tamara Prince In
                                                            one·third (1/3) of the
                                                            separate real property
  Shaleagh Williams   6200 Pershing         Daughter       One.third(l/3) personal
                      Ave., #381            Date        of property
                      Fort Worth, Texas     Birth: January
                      76116                 14,2003        One· half (1/2). of the
                                                           separate real property
                                                           subject to the life estate
                                                           of Tamara Prince. In
                                                           one·third(1/3) of the
                                                           separate real property


 1.    Decedent owned personal property and two lawsuits for Wrongful Death and

       Survival at the time of his death,October 9, 2006; .

 M.    Decedent had two children Rodrick Williams, Jr. (DOB 7/10/2000) and

       Shaleagh Williams (DOB 1/1412003, born in Tarrant County Texas; and

 N.    The Decedent did not leave a will.

       IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED, that

 pursuant to § 145(e), Tex. Prob. Code, that Sheila Williams be named as the

 Independent Administratrix of the Estate to serve without bond.

       IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the

 mg\williams.s.\lit\appl.adminAMND2d.1931 3




---_._--------------
names, ages, marital status and residence addresses of the Decedent's heirs; the

relationship of each heir to Decedent, and. the true interest of each of the heirs iIi

the estate of Decedent are as follows:

 Nruru::              Address:              &latiQllship: Interest:
 Tamara     LaShae 6200 Pershing Spouse·                   All community property
 Prince            Ave., #381
                   Fort Worth, Texas                        One'thil"d (1/3) separate
                   76116                                    personal property

                                                            One-third (1/3) life
                                                            estate in the separate
                                                            real property
 Rodrick Williams, 6200 . Pershing          Son             One-third (1/3) personal
 Jr.               Ave., #381               Date         of property.
                   Fort Worth, Texas        Birth: July 10,
                   76116                    2000            One-half (l/2) of the
                                                            separate real property
                                                            subject to the life estate
                                                            of Tamara Prince in
                                                            one-third (1/3) of the
                                    .                       separate real property
 Shaleagh Williams     6200 Pershing         Daughter       One-third (1/3) personal
                       Ave., #381           .Date        of property
                       Fort Worth, Texas     Birth: January
                       76116                 14,2003        One-half (1/2) of the
                                                            separate real property
                                                            subject to the life estate
                                                            of· Tamara Prince in
                                                            one-third (1/3) of the
                                                            separate real property




mg\williams,s.\lit\appl-admlnAMND2d.1931
   SIGNED this _      day of May! 2007.




                             JUDGE PRESIDING




mg\williams,s.lJit\appl-adrninAMND2d.1931 5
                                                                                                   TAR       F'ILED
                                                                                       .                 RANT COUIITY T        0


            **************************~I~*2'2
                                 .         Y:        . ,                                                  'I
                                                                                                                          .
                                                                                                                    AM 10: XII"
                                                                                                                            7
                  .   .         .     POSTER CITATION       . . . 'S:n'Nfr.       '
                 .       ONA SECOND AMENDED APPLICATION FOR      .. c~~~I~l:;:P.S
             LETIERS OF INDEPENDENT ADMINISTRATION PURSUANT TO SECT!      . ERK
               ..       145(e) OF THE TEXAS PROBATE CODE AND FOR BY-.       .
                                DETERMINATION OF HEIRSffiP                    --

            Cause No. 07-0335-1


            To any Sheriff or any Constable witbln the State Texas, GREETINGS:

            You are here commaDded to cause to be posted for ten days, exclusive oftbe day of posting,
            before the return day hereof, at tbe Courtbouse door, of Tarraut COUDty, Texas or at tbe
            place ID or Dear said Courtbonse wbere public notices customarily are posted, a copy oCthe
            following notice:


                                               THE STATE OF TEXAS


            TO ALL PERSONS INTERESTED IN TIIE ESTATE OF RODRICK WILUAMS,
--.,-   _
        ...
            DECEASED
                                                                     _-
                                                          - .- ...--:---... '---"'-'''-'--
           . TAMARA PRINC~~~au: PRINCE filed in the Probate Court ofTmant
                                                                                              ---        '-~' - -   ---   -.

             County, .,S~4' ~c!dWIO.~r the ~tters ofIndependent Administration pursuant
             to section 14S~1!f~0I~l{j'i\ltt~ to be issued to SHELIA VANESSA WILLIAMS
             AKA SHELIA WIUlAMS I!JldDetermmation of Heirship upon the estate of RODRICK
             WILLIAMs, DECEASED, wbich will be heard on the first Monday after service is perfected to-
             wit, on tbe 4tb day of JUDe A. D. 2007 at the Courthouse thereof, in the City of Fort Worth, at
             wbich time all persons interested in said estate may appear and contest said application, should
             they desire to do so.

              HEREIN FAIL NOT, but have you then and th.re before said Court this Writ, with your return
            . thereon endorsed showing bow you executed Same.

            Given under my band and seal of said Court on tbe 18th day of May A. D. 2007




            ****                                   ******************
                                                                                            SCANNED
                                                                                            MAY 22 ZO07


                                                                                                                           154
                                                            OFFICER'S RETURN

         Came to band on the:--~_day of _ _--:-=:-_ _ AD. _            and
 executed 00 the           day of             A. D. - - - J by deliveriog to the
 within named
                                     '-------------------------------------
                  ______________________________________________
 a
     t
         r
             u
                 e
                     ~
                         o
                             f
                                 t
                                     h
                                         i
                                             s
 Returned this ______,day of _ _ _ _ _--:A. D.                                               _.
 Fee, $,________                                                                   Authorized pcnonlConstablclSheriff

                                                                                  ________________ County, Texas
                                                                               By:_ _ _ _ _ _ _~,Deputy



                                                            OFFICER'S RETURN

  Came to hand on the cd/ I'r day of               ~~          A.D...........",7 and executed on the
      :?! ~r day of             @A...         A. D. ~7. by posting a copy oftheabove and
  foregoing citation for ten days, ~usive of the day of posting, before the day of hearing hereof,
  at Ibe Court House,Door of Tarrant Coimty, Texas, Dr at the place in or near the said court house
. :>'!I)cre public notices customarily arc posted.                       ' , ';",'~, _.j,,",'.' ,', ----
                                                                                 jEaav CROWDER.             ". ',,'.
  Fee. $20.00                                                                    TAlUtANTCoWtY. ~
                                                                                 00N$J'ABl.E PIlllCINCT I




                                                       VERIFICATION OF SERVICE
                                     (If served outside the Stat. of Texas or if •• rved   by Authorized Persoo)

 Signed and sworn to by the said:;-____________---c:-=_________                                          = __:-:--::--___
 before me this           day of                     A.D, _ _ to certify which
 witness my hand and seal of offic-e-------
 (Seal)
                                      Notary's Name Printed ______________
                                                                 County of______~State of,_______




                                                                                                                            ISS
                                                                                                                     FILED.
                                                                                                         ThRRANT COUNTY T
                *************************'tJ-*N** A 8:EX
                                             ur JUI -lj I                                                                      S

                                                             Cause No. 07-0335-1                          SUZAliNE HENOERSO
                                                                                                               COUNT Y CLERK

                                                    CITATION BY PUBLICATION
                                                                                                        By              b

                TO ANY SHERIFF OR ANY CONSTABLE WITlIIN THE STATE OF TEXAS, GREETINGS:

                Y011 are hereby commanded thai by making pubUea!iOD of this citation once, ten days bofure •
                JUDe 14th, 2001, the day of hearing hereof, you summon ALL PERSONS
                INTERESTED, ANY UNKNOWN HEIRS




                    to be and appear before the Probat. Court ofTlimmt County, Texas III th. Courthous. thereof
                    In th. City of Fort Worth, then and there to aoswer tho petition ofTAMARA PRINCE AKA TAMARA
~   "1·-'·'-   .-   LASiiAi! piiiNC]rm~d'~inMay- lath, 200; ~d show cause wh;iliis Co~ sho~ld                ;ot d~;~i~
                    who arc the h.irs and the only h.irs in th••stat. of RODRICK WILLIAMS, DECEASED.

                    Petitioner alleges that the decedent died in Fort Worth, Texas on October 9th, 2006 and prays that the
                    Court hear evidence sufficient to determine who are the heirs and the only heirs of RODRICK
                    WILLlAMS,DECEASED.


                    GIVEN UNDER MY HAND AND SEAL of said Court III office In the City o!Fort Worth, Texas, Tarrant
                    county, Texas,'o,; lh. 18th day or May A. D. 2007.

                    ART BRENDER
                    600 EIGHTII AVENUE
                    FORTWORTIJ, TEXAS 76104
                    817-334-0171




                                                                                   ************
                                                                                       SCANNED
                                                                                       JUN    04 2007



                                                                                                                               756
 *** ******** ****** **. ***. **••• ~                                               .
                                                                                                                                Yo. ...   'byrne,.,.,....
                                                                                                                            . •mendedar. 'er.by eom-·
                                                                                                                              cttlon of M cltalkln   once. I
                                                                                                                               ten daya befOre June 14th,
                                                                                                                               2001 Ole daY or It>e ...rlng
                                                                                                                                heraOf. you aummoll AL.L.
                                                                                                                               PERSONS INTERESTED•
                                                                                                                              •_     UN.NOWI! HEIRS" .
                                                                                                                               be ,ltd' IpPtir before !Iii i
 THE STATE OF TEXAS,                                                                                                           Pro~at. Court of Tlrrant




                                                                                             ~
                                                                                                                              ,==~'~g~~',

                                                                                                              :le      • . FooI""""-"'" and ..ere"
                                                                                                              O




 COUNTY OF TARRANT                                                       .                          •
                                                                     .                        .                    ~dtff"naw.' the p.tltlo n or t
                                                         •                                              t.n                    'Tamlra PrInce alea Tamarl
 Before me, the undersigned authority, 00 this day personally appeared                                  " ' " " l l S h•• Prtneo Ned h..                   ,in,
 kn[; to me, who,             beingt~~swom, his oath depcses and says that be is the Publisher of lb.
                               ,..       -
                                          a
                                                                     .                                         '""    . May 18th, 2007 and .mw I
                                                                                                                               .ca... why 1/>" .....ho ant Gle :
                                                                                                                               ~ not deltJ'nVN
                                                                                                                                               Coo" -~

       . .I'!\J\\ 2fCll1                                     er.a newspaper published In saId County; thaI a copy of ."""             and ... on~~"in"      "" '

                                                                                                                                                                  ,
                                                                                                                               . estate of RoOrll... ,WI ml,
 the within and foregoing Citation was published In saId newspaper for once, at asl ten da • before the                         0;:'::' ,,....         that It>e •

     .
-retunlr..
       . . ,':
                             tl)oroin, ....h publicalioll-being<m thcfollowlng1lalo:.·"·· A;D'Ir.:!-:: =~~
                             '. .               .                                                                               •and Pf"Yt 'lid: th! Court heat
 200             •       .                                                                                                       ,vJdenI;e .ufl\dent 10 del&r-


                                                                             ~
                                                                                                                                 mlM whO are thll heIrs and
                        '.                                                                                                       the only heIrS 01' Rodrick WI·
                                                                              .                                                  ",ms.~            ..
                                                                                                                                 GIVeN UNDER MY HA,NO




                                                                             d!                                         .    /~D SEAL 01 Slid Court at
                                                                                                                              lofftl;e In tho City of Fort .
                                                                                             --\--t--jf------~,'worth. TexU, Tlrr,nt



                                                                                                                      ;I
                                                                                                                  County. Texas. on IhII 18'!h
                              Sworn to   and· subscribed before me, thi                 da                         D•, 00        ..yorMay A.D•• 2007•


                                                                                                                                     -
                                                                                             0
                                                                                                                             • SUZANNE HENDERSON
                                                                                                              ..               CStrltofthe
                                                                                          I ,-,A¥~t,I;.,~~"q..;.~~~:::.:' Tarrant COunty.of
                                                                                                                               Probate Courts
                                                                                                   b.                                         Telln
                                                                             ....   _-_... -
                                                                                         j:
                                                                                                                          T.~ 100W._"' .
                                                                                                 Pu be, Tamm.£o\!!!.ty.....
                                                                                                  ---.                           ,
                                                                                                                                     fol1.Vb1h.. T~'
                                                                                                                                     71Uge-0401
                                                                                                                                     ItI Oarlel'le McKOWl
                                                                                                                                     Darlene McKatrn. [)eput'f
                                                                                                                                                              ~lJ




                                                    OFFICER'S RETURN

                 Came to band 00 the                L{       day of .. ~                          200~ BOd executed on
 th~ __
 _                   .1.{.   day Of. .       ~                 200   ~~ing a true copy hereof to be
 published once, ten day·s·berore the return day hereof, in                   th~~~
 a newspaper published in Tarrant County.

 This return is accompaoied by the affidavit of the publisher of said newspaper, as required by
 law.




                                                         ~ SUZANNE HENDERSON, COUNTY C!fRK
 Fee $50.00                                              (\a.J~ TARRANT ~ TEXAS            .


 *.****.*.*.*.*::*.~~~******

                                                                                                                        n
                                                                                                                                                  lSI
,.
                                       NO. 07·0335·1

     ESTATE OF                                  §   IN THE PROBATE COURT
                                                §
     RODRICK WIllIAMS,                          §   NUMBER ONE OF
                                                §
     DECEASED'                                  §   TARRANT COUNTY, TEXAS

                        ORDER DEClARING HEIRSHIP
                AND GRANTING INDEPENDENT ADMINISTRATION

           On, this day., came on to be heard the Second Amended Application for

     Determination of Heirship and to Establish Independent Administration (the

     "Application") filed by Tamara Prince ("Applicant"). The Coun, after considering

     the pleadings, the evidence, and the statements filed herein, fmds that:

     A     Service of citation has been made in the manner and for the length of time

           required by law, and all panies interested in the estate have executed the

           Application or have been duly served with citation as required by law;

     B.    Rodrick Williams ("Decedent") is dead, having died on October 9,2006, in

           Ellis County, Texas;

     C.    Decedent was domiciled in and had a fIXed place of residence in Tarrant

           County, Texas, at the time of his death;

     D.    Four years have not elapsed since the death of Decedent and this Court has

           jurisdiction of Decedent's estate;

     E.    Decedent, died without leaving a lawful will;

                                                                           SCANNED
                                                                           JUN 22 2007




                                                                                         758
F.   Decedent was informally married to Tamara LaShae Prince on the date of

     death;

G.   There is no need for appointment of appraisers for this estate;

H.   All matters and proof required to. support the Application have been fully

      complied. with and met, and it would be in the best interest of the estate

      and the distributees that the .APplication be granted;

I.    The heirship of Decedent has been fully and satisfactorily proved, as well as

      the identity and nature of Decedent's property as being separate .or

      community and the interests and shares of each of the heirs therein and are

      as follows:
          .




 ~:                   AddrJ:~~:              RellltiQ!l~hil!:   Int!:rut:
 Tamara       LaShae 6200 Pershing Spouse                       All community property
 Prince              Ave., #381
                     Fort Worth, Texas                          One-third (1/3) separate
                     76116                                      personal property

                                                                One-third (1/3) life
                                                                estate in the separate
                                                                real property




mg\williams,s.\1it'appi-adminAMND2d.1931 2
•


    Rodrick Williams, 6200· Pershing           Son             O\1e-third (1/3) personal
    Jr.               Ave., #38 I              Date        of property
                      Fort Worth, Texas        Birth: July 10,
                      76116                    2000            One-half (1/2) of the
                                                               separate real property
                                                               subject to the life estate
                                                               of Tamara Prince in
                                                               one-third (l/3) of the
                                                               separate real property
    Shaleagh Williams    6200 Pershing         Daughter       One-third (1/3) personal
                         Ave., #381            Date        of property
                         Fort Worth, Texas     Birth: January
                         76116                 14,2003        One-half (l/2) of the
                                                              separate real property
                                                              subject to the life estate
                                                              ·of Tamara Prince in
                                                              one-third (1/3) of the
                                                               separate real property


    L.    Decedent owned personal prop<:rty and two laWsuits for Wrongful Death and

          Survival at the time of his death •. October 9, 2006;

    M     Decedent had two children Rodrick Williams, Jr. (DOB7/10/2000) and

          Shaleagh Williams (DOB 1/1412003. born in Tarrant County Texas; and

    N.    The Decedent did not leave a will.

          IT IS THEREFORE ORDERED. ADJUDGED. AND DECREED. that

    pursuant to § 14S(e). Tex. Prob. Code. that Shelia Wi1Iiams be named as the

    Independent Administratrix of the Estate to serve without bond.

          IT IS THEREFORE ORDERED. ADJUDGED. AND DECREED that the
names, ages, marital status and residence addresses of the Decedent's heirs, the

relationship of each heir to Decedent, and the true interest of each of the heirs In

the estate of Decedent are as follows:
                                                        .




~:                    Addr!:ss:            R!:laU!lDiliiIl: ID1!:I!:st:
 Tamara     LaShae 6200 Pershing Spouse                      All community property
 Prince            Ave., #381
                   Fort Worth, Texas                         One-third (1/3) separate
                   76116                                     personal property

                                                             One-third ( 1/3) life
                                                             estate in the separate
                                                             real property
 Rodrick Williams, 6200 Pershing              Son             One-third (1/3) personal
 Jr.               Ave., #381                 Date        of property
                   Fort Worth, Texas          Birth: July 10,
                   76116                      2000            One-half (1/2) of the
                                                              separate real property
                                                              subject to the life estate
                                                              of Tamara Prince in
                                                              one-third (1/3) of the
                                                              separate real property
 Shaleagh Williams     6200 Pershing          Daughter       One-third (1/3) personal
                       Ave., #381             Date        of property
                       Fort Worth, Texas      Birth: January
                       76116                  14,2003        One-half (112) of the
                                                             separate real property
                                                             subject to the life estate
                                                             of Tamara Prince in
                                                             one-third (1/3) of the
                                                             separate real property




mg\williams,s.lJit\;lppl-adminAMND2d.1931 4




                                                                                        761
                                          NO. 07-0335-1

ESTATE OF                                           §   IN THE PROBATE COURT
                                                    §
RODRICK WILLIAMS,                                   §   NUMBER ONE OF
                                                    §
DECEASED                                            §   TARRANT COUNTY, TEXAS

          ORDER FOR AUTHORITY TO ENTER INTO A CONTRACT

       On this the 16th day of April, 2007, came on to be heard the Application for

Authority to Enter into a Contract for legal services in the estate of Rodrick

Williams. The Court, having heard the evidence and reviewed the documents filed·

herein, does hereby enter the following order:

       The Contingent Fee Contract entered into between Shelia Williams and

Tamara Prince attached to the Application for Authority to Enter into a Contract

as Exhibit "A" is approved and ratified subject to the qualification that the

contingent fee is limited to thirty-three and one third (33 1/3%) percent of any

and all recovery obtained on behalf of the minors, Rodrick Williams, Jr. (D.O.B.

7/10/2000) and Shaleah Williams (D.O.B. 1/14/2003) if the case is settled without

having a trial. If the case proceeds           to   trial, the Court approves the forty (40%)

percent contingent fee for both minors as set out in the contract.

       With this exception, the Court hereby ratifies and approves the contract.
 :51&iJ€O     TIlls     .,.t./tL   OP.y   OF    J.r~             J   ;)007.




mj\wilIiams.r.\probate\ord.-app.auth.1931
                                                                                   SCM!NED
                                                                                   OCT 0 4 2o~62
                                                             -.---.
                                      NO. 07-0335-1                    .   fiLED
                                                                    TARRAIH COUNTY TEXAS
ESTATE OF                                   §      IN THE PROBATE COUTh~ OCl _q P 3: 5S
                                            §
RODRICK. WILLIAMS,                          §      NUMBER ONE OF            SUZANNE HEHDEflSOH
                                            §                                   COUHT Y ClEfl:~
DECEASED                                    §      TARRANT COUNTY,'T~ ALU

                                         OATH

      "I do solemnly swear that the above-mentioned deceased died without

leaving any lawful will, so far as I know or believe, and that I will well and truly

perform all the duties of Independent Administrator of the Estate of said

deceased."


                                                   ~I Va4.R.OMJi~
                                                   SHELIA VANESSA WILLIAMS


      SUBSCRIBED AND SWORN TO BEFORE ME BY SHELIA VANESSA

WILLIAMS, this the      q~        day of October, 2007,      to   certify which 'witness my

hand and seal of office.




                                                   Notary's Name Printed:


                                                   My commission expires S -)..b ~ 9-cl 0


                 ATTEST:  10-     r      .2007
                                                                                   PlAINTIFF'S
                 SUZANNE HENDERSON. County Clerk
                                                                                     EXHIBIT
                   ~armnH?~
             ~             U M _ tl~~ntv                                              B   _II" ....
                                                                                            . .... '"
                               LETTERS
                    OF INDEPENDENT ADMINISTRATION

Cause No. 07-0335-1


Tile State 0/ Texas                               §                            In Probate Court
                                                  §                       Tarrant County, Texas
County o/Tarrant                                  §



         I, Suzanne Henderson, Clerk of the Probate Court of Tarrant County, Texas, do hereby
certify that on the 9th day of October A. D. 2007,


            SHELIA VANESSA WILLIAMS, AKA SHELIA WILLIAMS



qualified according to law as INDEPENDENT ADMINISTRATOR
without bond of the estate of

                             RODRICK WILLIAMS, DECEASED


           These are, therefore, given to prove her capacity to act as such and that said appointment
is still in full force and effect.


        Witness my hand and seal of the Probate Court of Tarrant County, at Fort Worth, Texas
on the 9th day orOctober A. D. 2007.




                                                                                                        764

				
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