Bills of Review in Texas
When a case doesn’t turn out the way you want in the trial court, you appeal to the court of appeals. But what can you do if you didn’t know about the case or didn’t learn of a trial setting until an appeal was too late? A bill of review allows you to bring the problem to court. Texas has two types of bills of review, an equitable bill of review and a statutory bill of review. The difference between the two was highlighted in a recent case.
In Gill v. Bordokas, 14-21-00356-CV. from the Houston 14th court of appeals, a man died intestate. One of his daughters filed an application to determine heirship where she alleged that he was not married and that she and her siblings were his only heirs. Within the time allowed, a woman filed a motion for new trial claiming that she was the common-law wife of the man. The woman did not request a hearing and the motion for new trial was eventually overruled by operation of law. Seventeen months later, she filed a statutory bill of review asking the court to overturn its order on heirship. The judge denied the bill noting that she did not pursue her motion for new trial when she could have. The alleged common-law wife appealed.
Equitable Bill of Review
The appeals court first discussed the court’s holding that the woman was not diligent. It listed the requirements for an equitable bill of review which requires diligence.
To obtain an equitable bill of review, a petitioner must generally plead and prove the following three elements: (1) the petitioner has a meritorious claim or defense to the judgment; (2) the petitioner was prevented from making that claim or defense because of official mistake or because of the opposing party’s fraud, accident, or wrongful conduct; and (3) the petitioner’s inability to make the claim or defense was unmixed with any fault or negligence on the petitioner’s own part...When cases involving res judicata have arisen in the context of an equitable bill of review, there is normally a failure by the petitioner to satisfy one of these three elements.
However, the court stated that the alleged common-law wife filed a statutory bill of review, not an equitable one.
Statutory Bill of Review
But this case involves a statutory bill of review, which Gill sought under Section 55.251 of the Texas Estates Code. That statute provides that “an interested person may, by a bill of review filed in the court in which the probate proceedings were held, have an order or judgment rendered by the court revised and corrected on a showing of error in the order or judgment, as applicable.” See Tex. Est. Code § 55.251(a); see also Tex. Est. Code § 22.029 (defining “probate proceedings” as “a matter or proceeding relating to a decedent’s estate,” which includes a determination of heirship). By its plain language, this statute authorizes a bill of review in a probate proceeding merely upon “a showing of error,” without the other elements required by an equitable bill of review. Thus, a petitioner in a probate proceeding can obtain this statutory bill of review even if the petitioner did not exercise the amount of diligence that would be demanded in the context of an equitable bill of review.
There is still a two-year statute of limitation on filing a statutory bill of review, but you don’t have to show that you were diligent.
UPDATE: In October 2023, the El Paso court of appeals found that a bill of review was the proper way to question an order admitting a will to probate as a muniment of title. 08-23-00019-CV.