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Click here for the full text of this decision FACTS:Jeffrey Lewis sued Diana Faye Lewis individually and as executrix of Doris A. Lewis’ estate. Jeffrey filed suit in Burleson County constitutional county court, sitting in probate Oct. 24, 2005. Burleson County does not have a statutory probate court or county court-at-law. On Nov. 2, the county clerk received Diana’s motion to appoint a statutory probate judge, but the clerk did not file the motion because a $40 filing fee did not accompany it. The next day, the county clerk received Jeffrey’s motion to transfer the case to district court. The probate court granted the motion the same day, transferring the case to Burleson County court. On Nov. 4, the county clerk received Diana’s $40 filing fee for her Nov. 2 motion. Diana now seeks a writ of mandamus to order the constitutional county court judge to rescind his transfer order. She says that under Probate Code �5(b-1), her motion had already been filed Nov. 2, and the probate court could not have transferred the case until it ruled on her motion. HOLDING:Writ conditionally granted. The court first confirms that the principle of “conditional filing” that applies to motions for new trial applies here, too. That means that when Diana’s motion was tendered to the clerk, the motion is conditionally filed until the clerk receives the filing fee, at which time, the motion is deemed to be filed the day the motion was received, not the day the money was received. Consequently, when Diana paid the filing fee Nov. 4, her motion was deemed filed Nov. 2, the day she tendered it to the clerk. Under the express language of �5(b-1), the probate court could not have granted Jeffrey’s motion because Diana’s motion was already conditionally filed. The court says �5(b-1) mandates this result: “the probate court shall grant the motion for assignment of a statutory probate court judge and may not transfer the contested matter to district court. . . . Thus, in this case, the probate court abused its discretion by failing to correctly apply the law.” The court agrees that Diana does not have an adequate remedy at law, since the probate court’s order deprives her of her statutory right to the have the case assigned to a statutory probate court judge. OPINION:Vance, J.; Gray, CJ, Vance and Reyna, JJ. DISSENT:Gray, CJ. “The county judge did what any reasonable, analytical, rules-oriented person would have done he granted the first properly filed motion to transfer the case.”

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