S.C. v. M.B., Individually and as Next Friend of I.C.

Supreme Court of Texas

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No. 20-0552

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S.C.,

Petitioner,

v.

M.B., Individually and as Next Friend of I.C.,

Respondent

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Second District of Texas

═══════════════════════════════════════

Argued December 1, 2021

JUSTICE YOUNG delivered the opinion of the Court, in which Chief

Justice Hecht, Justice Lehrmann, Justice Devine, Justice Blacklock,

and Justice Huddle joined.

JUSTICE BLAND filed a dissenting opinion, in which Justice Boyd

and Justice Busby joined.

One principal function of a final divorce decree is to divide a

couple’s community property. Sometimes, however, the decree may not

divide all the community property. When that happens, it stops being

community property because the marriage has ended. But both spouses

continue to own it as tenants in common, just as they could jointly own

property with anyone else. Any tenant in common who wishes to divide

property may seek a partition under Property Code § 23.001. A Property

Code partition presumes an even split; in a divorce, by contrast, a judge

uses a “just and right” standard to divide community property. For most

of Texas history, if property escaped division in divorce, partitions were

the only way that courts could divide it for the former spouses.

But in 1987, the legislature enacted a statute (now codified as

Subchapter C of Chapter 9 of the Family Code) that creates a new option

for former spouses: using the “just and right” standard even after

divorce. This case requires us to decide whether Subchapter C does

more than create that new remedy. Does it also make the new remedy

the exclusive remedy and vest exclusive jurisdiction over that remedy in

the original divorce court?

The answer is no. Absent a clear showing to the contrary, we

presume that statutes do not entail such jurisdictional consequences.

Express language or necessary implication can overcome that

presumption, but neither does so here. The Family Code repeatedly uses

unambiguous language like “exclusive jurisdiction”—but not in

Subchapter C. Nor does any other text or context warrant converting

Subchapter C from an important remedial expansion into a jurisdictional

limitation.

When Subchapter C applies and is invoked, however, it provides

the rule of decision. If either former spouse prefers the “just and right”

standard, Subchapter C supplies it. We hold only that the statutory text

does not force former spouses to that choice or impose any jurisdictional

restrictions. We therefore affirm the judgment of the court of appeals.

I

The parties in this case divorced in December 2013. S.C. (the

2

husband) and M.B. (the wife) negotiated a mediated settlement

agreement, which became an “agreement incident to divorce” that

settled various issues, including how to divide community property

listed on an inventory prepared by S.C. The divorce court incorporated

that agreement into the final divorce decree.

S.C.’s inventory, however, excluded partnership interests in four

real-estate deals, which were community property.1 No one alleges

anything nefarious about that exclusion. Far from concealing the

partnerships, S.C. transparently identified them as incomplete deals

that, when completed, would become part of the community estate. The

inventory was finalized before the deals closed, so the deals were not

added to the inventory. Because the property was left off the inventory,

it was also outside the parties’ agreement incident to divorce, and thus

was excluded from the final divorce decree.

After the divorce, disputes concerning it arose between the former

spouses. M.B. sued S.C. in Tarrant County civil district court, but not

the court that had granted the divorce. She alleged various claims that

are not before us,2 and eventually asked the court to partition the

property represented by the real-estate deals. She invoked the general

cause of action for partition provided in Property Code § 23.001.

1 S.C. did not challenge the existence of jurisdictional facts. We thus

take as true the pleaded facts about the property division in M.B.’s live

petition, including that the property interests at issue were community

property that could have been but were not divided by the divorce court. See,

e.g., Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

We do not resolve whether the allegations are true or address any merits

questions about the nature of these parties’ interests. We leave all such issues

to the district court in the first instance.

The initial claims included, for example, breach of the settlement

2

agreement and breach of a partnership agreement.

3

S.C. filed a plea to the jurisdiction and pointed to Subchapter C

of Chapter 9 of the Texas Family Code as support.3 That statute,

enacted in 1987, provides an alternative to a traditional partition for

former couples who wish to divide marital property that they still jointly

own. When Subchapter C applies, “[e]ither former spouse” may bring the

cause of action that it creates. Tex. Fam. Code § 9.201(a).4 Subchapter C

requires “the court [to] divide the property in a manner that the court

deems just and right, having due regard for the rights of each party and

any children of the marriage.” § 9.203(a). According to S.C., Subchapter

C did not merely provide a new remedy, but also eliminated the old

remedy of partition. S.C. argued that Subchapter C now provides the

exclusive remedy to divide property that went undivided in divorce—

and, moreover, it gave the original divorce court exclusive jurisdiction to

perform that division.5

The district court agreed with S.C. that it had no jurisdiction over

M.B.’s partition action and thus granted S.C.’s plea to the jurisdiction.

M.B. moved to certify a permissive interlocutory appeal of that order

3 Tex. Fam. Code §§ 9.201–9.205.

Unless otherwise indicated, all further statutory references are to the

4

Texas Family Code as currently codified.

5 In this opinion, “undivided property” refers—as Subchapter C itself

refers—to property that before divorce was community property but was not

divided in divorce. See, e.g., § 9.201(a) (“to divide property not divided”);

§ 9.203 (titled “Division of Undivided Assets When Prior Court Had

Jurisdiction”). But community property does not survive a divorce decree as

community property. See infra at 8. Rather, each spouse has an undivided

separate—not community—property interest, at least until a court eventually

divides it.

4

under Civil Practice and Remedies Code § 51.014(d).6 S.C. did not

oppose the certification, which the district court granted and the court

of appeals accepted.7 Over Chief Justice Sudderth’s dissent, the court

reversed, concluding that Subchapter C did not divest the district court

of jurisdiction over M.B.’s partition action. 634 S.W.3d 102 (Tex. App.—

Fort Worth 2020). We granted S.C.’s petition for review.

II

The central issue before us is whether Subchapter C supplements

or instead supplants the remedial options available to former spouses

who wish to divide property that went undivided in divorce. S.C. seeks

reversal on the ground that the legislature has made Subchapter C the

exclusive remedy for such former spouses, thus eliminating their access

to the preexisting partition remedy, and that the original divorce court

is their exclusive forum.

The legislature has broad authority to displace existing remedies

and to restrict district courts’ subject-matter jurisdiction. Such

limitations need not be express, but “[w]e resist classifying a provision

6 The authorization for a permissive interlocutory appeal “does not

apply to an action brought under the Family Code.” Tex. Civ. Prac. & Rem.

Code § 51.014(d-1). Because M.B.’s claim was brought under the Property

Code, this limitation does not apply, and we have no further cause to opine

about the scope of the limitation.

7 By proceeding under § 51.014, the parties and both lower courts

facilitated our review of the purely legal question presented. Because they

followed the procedure to allow interlocutory appeals, the case came to us

quickly and unburdened by a complex record that would inevitably have grown

if the case had to proceed to a final judgment before being appealed. We

therefore can address the issue presented expeditiously and efficiently. This

posture is precisely the pathway that the legislature envisioned by enacting

§ 51.014(d)–(f), and we reaffirm what we have said before: that the lower courts

should make use of this procedural vehicle when appropriate. See Sabre Travel

Int’l Ltd. v. Deutsche Lufthansa AG, 567 S.W.3d 725, 732–33 (Tex. 2019).

5

as jurisdictional absent clear legislative intent to that effect.” Crosstex

Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 391 (Tex. 2014).

Absent a compelling showing to the contrary, we presume that remedies

remain intact and that the jurisdiction of a district court—our state’s

sole court of general jurisdiction—remains undisturbed. See, e.g., Tex.

Const. art. V, § 8; In re Oncor Elec. Delivery Co., 630 S.W.3d 40, 44 (Tex.

2021). As the U.S. Supreme Court recently put it, “[w]here multiple

plausible interpretations exist—only one of which is jurisdictional—it is

difficult to make the case that the jurisdictional reading is clear.”

Boechler, P.C. v. Comm’r, 142 S. Ct. 1493, 1498 (2022). Even a reading

that is “better is not enough. To satisfy the clear-statement rule, the

jurisdictional condition must be just that: clear.” Id. at 1499.

The legislature has reaffirmed the reach of district courts’ purview,

see Tex. Gov’t Code §§ 24.007–24.008, including emphasizing that family

district courts do “not limit the jurisdiction of other district courts nor

relieve them of responsibility for handling cases involving family law

matters.” Id. § 24.601(c). Against this backdrop, “all claims are presumed

to fall within the jurisdiction of the district court unless the Legislature

or Congress has provided that they must be heard elsewhere.” Dubai

Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000).

Subchapter C’s text does not expressly direct that its remedy be

exclusive or vest the original divorce court with exclusive jurisdiction

over post-divorce property divisions. To determine whether Subchapter C

imposes remedial or jurisdictional exclusivity by implication, we examine

Subchapter C’s operation in the larger context of how Texas law treats

community property that went undivided in a final divorce.

In other words, this case turns purely on statutory construction.

6

We examine the legal background to ascertain what the legislature

changed (and left unchanged), assess how Subchapter C affects the legal

landscape, and then determine whether and to what extent the new

statute abrogated rather than merely supplemented existing law.

A

We begin with the legal consequences that follow when divorce

decrees fail to divide community property. Community property exists

solely within a marriage and cannot survive divorce. See Busby v.

Busby, 457 S.W.2d 551, 554 (Tex. 1970); Cameron v. Cameron, 641

S.W.2d 210, 223 (Tex. 1982) (“Community property owes its existence to

the legal fact of marriage . . . .”); accord Schlueter v. Schlueter, 975

S.W.2d 584, 588 (Tex. 1998). Instantly upon divorce, therefore, our law

transforms the former spouses into “tenants in common in the property

or joint owners thereof, just as if they had never been married.” Taylor

v. Catalon, 166 S.W.2d 102, 104 (Tex. 1942) (citing Kirkwood v. Domnan,

16 S.W. 428, 429 (Tex. 1891)). Terminology about property interests has

at times been imprecise, but tenancy in common is the correct

characterization of ownership for undivided community property.8 The

legislature is free to alter this default rule either in general or for specific

types of property.

Allowing community property to become a tenancy in common by

8 We often repeat that former spouses “become tenants in common or

joint owners” of community property not divided in a divorce decree. See, e.g.,

Busby, 457 S.W.2d at 554; Taylor, 166 S.W.2d at 104; Jenkins v. Volz, 54 Tex.

636, 639 (1881). We have also used joint ownership “to refer both to property

held in joint tenancy, and property held in cotenancy.” Laster v. First Huntsville

Props. Co., 826 S.W.2d 125, 129 (Tex. 1991) (citing Stauffer v. Henderson, 801

S.W.2d 858 (Tex. 1990), and Harrell v. Harrell, 692 S.W.2d 876 (Tex. 1985)).

Tenancy in common and joint tenancy, however, are distinct types of ownership.

Id. at 128–29.

7

default is rarely the best option. Spouses who have chosen to terminate

their marriage are unlikely to benefit by becoming tenants in common.

But as Subchapter C’s very existence confirms, the legislature

pragmatically recognizes that, for good or ill, community property

sometimes will escape division in divorce. Examples abound from our

state’s earliest days, when divorce was far rarer than today.9

Kirkwood, which addressed the consequences of an 1882 divorce,

provides a good illustration. Much like today, Texas law then provided

“that ‘the court pronouncing a decree of divorce from the bonds of

matrimony shall also decree and order a division of the estate of the

parties in such a way as to the court shall seem just and right, having

due regard to the rights of each party’ . . . .” Kirkwood, 16 S.W. at 429

(quoting Rev. Stat. art. 2864). Yet the couple divorced without a “just

and right” division of their real property in Waco. By operation of the

default rule, then, “the former husband and wife stood towards each

other, after the decree of divorce, as if they had never borne that relation

to each other. They then owned the property as tenants in common, and

subject to all the rules and regulations of strangers” who jointly owned

property. Id. In a later partition suit, the district court rendered a

decree directing the land sold and the sale proceeds equally divided. Id.

This Court upheld that equal division. Id.

Instances of this default rule transforming community property

to a tenancy in common after a divorce were frequent and remain so

today. E.g., Harrell v. Harrell, 692 S.W.2d 876, 876 (Tex. 1985); Busby,

9See, e.g., Wright v. Wright, 7 Tex. 526 (1852); Ellis v. Rhone, 17 Tex.

131 (1856); Hardin v. Hardin, 38 Tex. 616 (1873); Whetstone v. Coffey, 48 Tex.

269 (1877).

8

457 S.W.2d at 554; Keller v. Keller, 141 S.W.2d 308, 311 (Tex. [Comm’n

Op.] 1940); Evans v. Jones, No. 11-19-00008-CV, 2020 WL 7414162, at

*3 (Tex. App.—Eastland Dec. 18, 2020, no pet.). Frequency, however,

does not connote desirability. We pointedly observed in Busby that,

although a partition action resulted in dividing property in half, we

“strongly suspect[ed]” that the divorcing court “would not have divided” the

property that way. 457 S.W.2d at 551, 555. To help prevent application

of the default rule through inadvertence, we urged that, “[i]n the future,

counsel for litigants in divorce suits should call to the attention of the

trial judge all of the assets of the marriage,” and, “especially in suits

where one of the parties is not represented by counsel,” we directed

divorce courts to “inquire as to the existence of insurance or retirement

programs to the end that the final judgment fully disposes of all property

valuables of the community.” Id. at 555.

Our cautionary language in Busby targeted unintended omissions

from a final decree. Of course, parties might choose with their eyes wide

open to continue to own property jointly. If for personal or business

reasons they prefer to be transformed into tenants in common upon

divorce (and prefer this result to follow from operation of law rather than

as part of a final decree), Texas courts will not force them to do otherwise.

Beyond inattention or informed choice, however, a third and

darker reason explains why some property goes undivided. Divorce can

summon forth the worst versions even of good people. One temptation

for a soon-to-be-former spouse is to hide property from the other and

from the court, or at least to be less than forthcoming about it. Ideally,

the innocent spouse will nonetheless discover the property before the

divorce proceedings become final, thus preventing the default rule from

9

taking effect (and perhaps causing the divorce court to view the other

spouse with a jaundiced eye). But otherwise, the only way to obtain a

“just and right” division of the property after divorce was through a bill

of review that could set aside the former judgment by establishing

extrinsic fraud (whereas intrinsic fraud would be insufficient). See, e.g.,

Montgomery v. Kennedy, 669 S.W.2d 309, 313 (Tex. 1984) (extrinsic

fraud for bill of review).10

Whatever the reason—inadvertence, a knowing decision, or some

form of concealment—the former spouses become, in the eyes of the law,

just two unrelated people who jointly own property. We have never

suggested that the courts themselves could or should change that

underlying law.

For most of our history, such former spouses were limited to the

same remedy as any other tenants in common who wished to divide

property: a partition action, which is currently codified in Property Code

§ 23.001. Partitions presume an even split, subject to accounting. For

instance, if one spouse paid costs associated with maintaining or

improving the property in which the other tenant in common had not

shared, the division of the property would ensure that the spouse that

covered the costs fully recouped that investment. See, e.g., Cox v.

10 Fraud is intrinsic when it involves merits issues that can be ferreted

out in litigation. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 752 (Tex.

2003). This includes some rather despicable behavior like perjury, using

fraudulent evidence, and hiding evidence. Id. On the other hand, fraud is

extrinsic when it denies a party the opportunity to litigate its claim or defenses

because of actions outside the court proceedings. See Tice v. City of Pasadena,

767 S.W.2d 700, 702 (Tex. 1989); see also, e.g., PNS Stores, Inc. v. Rivera, 379

S.W.3d 267, 276 (Tex. 2012) (“[Plaintiff ’s] failure to provide the clerk with

[default judgment defendant]’s last known address, which [Plaintiff] knew, is

some evidence of extrinsic fraud.”).

10

Davison, 397 S.W.2d 200, 202 (Tex. 1965); Sayers v. Pyland, 161 S.W.2d

769, 771–72 (Tex. 1942); Bowman v. Stephens, 569 S.W.3d 210, 222 (Tex.

App.—Houston [1st Dist.] 2018, no pet.).

Partition actions, moreover, are subject to the parties’ jury-trial

right. See, e.g., Payne v. Benham, 16 Tex. 364, 369–70 (1856); Azios v.

Slot, 653 S.W.2d 111, 112–14 (Tex. App.—Austin 1983, no writ). The

jury may resolve factual questions about whether someone was a tenant

in common; the legitimate amount of accounting associated with dividing

the property; and other factual disputes. Payne, 16 Tex. at 369–70;

Burton v. Williams, 195 S.W.2d 245, 247–48 (Tex. Civ. App.—Waco 1946,

writ ref’d n.r.e.); Bouquet v. Belk, 376 S.W.2d 361, 362–63 (Tex. Civ.

App.—San Antonio 1964, no writ).

Typically, there is no statute of limitations for a partition, although

adverse possession may apply, which poses another important question

that could require a jury’s input. Hanrick v. Gurley, 54 S.W. 347, 355

(Tex. 1899) (no limitations for partition action); see also McLaren v.

Beard, 811 S.W.2d 564, 568–69 (Tex. 1991) (discussing jury charge in

post-partition adverse-possession suit).

B

Until 1987, the foregoing discussion was the sum and substance of

the general law concerning community property that went undivided in

divorce. The legislature then enacted a statute that created a new

option, in specified circumstances, to divide property not divided by a

divorce decree.11 The statute, now codified as Subchapter C of Chapter 9

See Act of July 20, 1987, 70th Leg., 2d C.S., ch. 50, § 3, 1987 Tex. Gen.

11

Laws 160. That statute was originally codified as Texas Family Code § 3.90 et

seq.

11

of the Family Code,12 created a new mechanism in which a former

spouse could invoke the courts’ authority to divide as-yet-undivided

property under the same “just and right” standard that applies in

divorce. Its provisions do the following:

• Section 9.201 creates the cause of action, which it describes as a

“procedure for division of certain property not divided on divorce

or annulment.” Under its authority, “[e]ither former spouse may

file a suit” that “is governed by the Texas Rules of Civil Procedure

applicable to the filing of an original lawsuit.” § 9.201(a), (b).

• Section 9.202 creates a statute of limitations. The lawsuit

described in § 9.201 may not be brought more than two years after

“a former spouse unequivocally repudiates” the other spouse’s

interest. § 9.202(a).

• Section 9.203 prescribes the substantive rules for the new suit,

depending on whether the divorce was in Texas or elsewhere. For

Texas divorces, “[i]f a court of this state failed to dispose of

property subject to division in a final decree . . . even though the

court had jurisdiction over the spouses or over the property, the

court shall divide the property in a manner that the court deems

just and right . . . .” § 9.203(a).

• Section 9.204 provides rules for both Texas and out-of-state

divorced couples where the divorce court lacked jurisdiction. For

Texas divorces, “[i]f a court of this state failed to dispose of

property . . . because the court lacked jurisdiction over a spouse

12 The legislature later reorganized the Family Code in what it deemed

a “non-substantive recodification,” Act of April 17, 1997, 75th Leg., R.S., ch. 7,

§ 1, 1997 Tex. Gen. Laws 8, which led to the statute’s current codification.

12

or the property, and if that court subsequently acquires the

requisite jurisdiction, that court may divide the property in a

manner that the court deems just and right . . . .” § 9.204(a).

• Section 9.205 authorizes attorney’s fees.

At its core, Subchapter C allows property that is no longer

community property to be treated by a court as if it still were, so that it

can be divided by the just-and-right standard. But the statute did not

actually change the nature of the ownership interest of the property.

Subchapter C did not displace the iron rule that “[c]ommunity property

not awarded or partitioned by a divorce decree is subject to later

partition between the ex-spouses, who are considered joint tenants or

tenants in common.” Wilde v. Murchie, 949 S.W.2d 331, 332 (Tex. 1997)

(emphasis added); Joseph W. McKnight, Family Law: Husband and

Wife, 42 Sw. L.J. 1, 48 (1988) (“[T]he parties would still hold property as

tenants in common. Thus, part of the Busby rule subsists.”) (footnote

omitted).13

13 If, as the dissent says, Subchapter C abrogated over a century of law

so that former spouses do not become tenants in common of community property

that went undivided in a final decree, two significant consequences would

follow. First, it would mean the legislature took away a rule of property

classification without replacing it with anything. The dissent does not fill the

gap that its reading creates; our reading leaves no gap to fill. Second, it would

be tantamount to abrogating the Property Code right to partition long

recognized at common law, leading to further problems. See infra Part II.D.

Wholly aside from the legislature’s power, “[w]e have consistently declined to

construe statutes to deprive citizens of common-law rights unless the

Legislature clearly expressed that intent.” ConocoPhillips Co. v. Koopmann,

547 S.W.3d 858, 877 (Tex. 2018) (quotation omitted) (emphasis added).

But that clarity, if the dissent were right, has gone unnoticed for many

decades. As far as we can tell, not one appellate justice in Texas before this

case has thought that Subchapter C changed the law in which former spouses

become tenants in common of community property that goes undivided in a

13

Likewise, the new statute does not allow anyone to relitigate

issues already resolved by the final divorce decree. Subchapter C does

not create “a legislatively endorsed exception to the finality of the final

divorce decree.” Post at 10 (Bland, J., dissenting). The statute authorizes

no collateral attack on closed and final divorce decrees. As we repeatedly

have held, “[a] judgment finalizing a divorce and dividing marital

property bars relitigation of the property division, even if the decree

incorrectly characterizes or divides the property.” Pearson v. Fillingim,

332 S.W.3d 361, 363 (Tex. 2011) (citing Reiss v. Reiss, 118 S.W.3d 439,

443 (Tex. 2003), and Baxter v. Ruddle, 794 S.W.2d 761, 762–63 (Tex.

1990)). Thus, if a divorce court with jurisdiction grants a final decree

that addresses property, nothing in Subchapter C provides any escape

final decree. Indeed, before this case, only one justice has even shared the

dissent’s view on Subchapter C’s exclusivity as a remedy—and even he did not

question that former spouses become tenants in common of community

property that went undivided in divorce. See Phillips v. Phillips, 951 S.W.2d

955, 958 (Tex. App.—Waco 1997, no pet.) (Vance, J., concurring).

Nor is it a matter of there having been little opportunity to opine. From

Subchapter C’s enactment until today, Texas lower courts have recognized the

principle over and over and over. See, e.g., Sutton v. Green, No. 14-01-01043-

CV, 2002 WL 1489347, at *2 (Tex. App.—Houston [14th Dist.] July 11, 2002, no

pet.) (Guzman, J.). We cite a small fraction of those cases solely to illustrate the

extraordinary prevalence and persistence—after Subchapter C’s enactment—

of the principle that former spouses become tenants in common of undivided

property: Johnson v. Dunham, No. 11-20-00123-CV, 2022 WL 969516, at *9

(Tex. App.—Eastland Mar. 31, 2022, no pet.); Kadlecek v. Kadlecek, 93 S.W.3d

903, 906 (Tex. App.—Austin 2002, no pet.) (Yeakel, J.); Phillips, 951 S.W.2d at

957; Burgess v. Easley, 893 S.W.2d 87, 90 (Tex. App.—Dallas 1994, no writ); In

re Marriage of Moore, 890 S.W.2d 821, 839 (Tex. App.—Amarillo 1994, no writ).

Even the Court of Criminal Appeals has relied upon this principle,

Chiarini v. State, 442 S.W.3d 318, 320 n.14 (Tex. Crim. App. 2014), and so have

at least three federal cases (including one just last year): In re Owsley, No. 2:20-

CV-00171, 2021 WL 3033120, at *10 (S.D. Tex. July 17, 2021); In re Mugica,

362 B.R. 782, 786 n.1 (S.D. Tex. 2007); In re Finch, 130 B.R. 753, 756 (S.D. Tex.

1991).

14

from the rule that a wrongful division can be challenged only by appeal.

“Res judicata applies to a final divorce decree just as it does to any other

final judgment, barring subsequent collateral attack even if the divorce

decree improperly divided the property. . . . The trial court may not

change the decree’s division of property even if it contains substantive

legal error.” Brown v. Brown, 236 S.W.3d 343, 348 (Tex. App.—Houston

[1st Dist.] 2007, no pet.) (Bland, J.); see also Hagen v. Hagen, 282 S.W.3d

899, 907 (Tex. 2009) (likewise noting the impropriety of collateral attacks

on final decrees). Section 9.007(b) expressly mandates this result.14

Subchapter C does not deviate from that principle. It instead

allows property that was never divided to be divided for the first time.

The only way to redivide property, in other words, is by bill of review—

which amounts to saying that the original division never really happened

because the court lacked jurisdiction. See, e.g., Browning v. Placke, 698

S.W.2d 362, 363 (Tex. 1985).

The dissent, by contrast, reads Subchapter C as something like a

liberalized bill-of-review procedure that provides an exception to this no-

collateral-attack rule. See post at 11–12. Thus, the dissent says, the

statute “limit[s] where and how parties may assert a challenge to a final

divorce decree.” Id. at 12 (emphasis added). Indeed, the dissent’s approach

14 We certainly do not disagree, therefore, with the principle that the

dissent derives from Koepke v. Koepke, 732 S.W.2d 299, 300 (Tex. 1987)—that

“a divorce decree is a final judgment, and that ‘[o]mission of certain community

property from a divorce decree does not affect its finality.’” Post at 10 n.22.

Exactly so—Subchapter C would not exist if courts could reopen the original

decree and redivide the whole community estate. Such a regime would be

disastrous, which is why we take pains to note that neither Subchapter C nor

Property Code § 23.001 could affect the original property division.

15

would unquestionably open judgments to collateral attack.15 We

respectfully disagree with that characterization because Subchapter C

authorizes no attack—direct, collateral, or otherwise—on any final

divorce decree, including here.

Thus, the dissent’s view of this litigation—as a suit that actually

sought to “modify an in-state divorce,” id.—is also mistaken. Such a suit

would fail because it would be an impermissible collateral attack. Said

another way, if M.B. did seek to attack, modify, or otherwise disturb the

finality of the divorce decree, the answer would not be to send her to the

original divorce court—it would be to bar her claim in every court under

res judicata.16

15 Threats to finality would follow from the dissent’s insistence on

imposing jurisdictional consequences on Subchapter C, which would ensure

that void judgments are lingering in the world. After all, Subchapter C applies

to all divorce decrees ever rendered. The original version of Subchapter C

enacted in 1987 was prospective. See Act of July 20, 1987, 70th Leg. 2d C.S.,

ch. 50, § 7, 1987 Gen. Laws. 160, 161. But the legislature later extended it to

“decrees of divorce and annulment rendered before, on, or after November 1,

1987.” Act of May 26, 1989, 71st Leg., R.S., ch. 371, § 10, 1989 Tex. Gen. Laws

1462, 1466.

We know of at least one division that is subject to collateral attack

under the dissent’s approach: Mayes v. Stewart, 11 S.W.3d 440 (Tex. App.—

Houston [14th Dist.] 2000, pet. denied) (“Mrs. Stewart filed the current lawsuit

in the 11th District Court, while the Stewarts’ divorce action was tried in the

245th District Court.” (footnote omitted)), disapproved of on other grounds by

Agar Corp., Inc. v. Electro Cirs. Int’l, LLC, 580 S.W.3d 136 (Tex. 2019). We

cannot know how many more there would be. It never before mattered, so it

often is not apparent on the face of an appellate opinion if the divorcing court

and the Subchapter C court were different. Many judgments, too, are not

appealed—including possible amicable partitions that presumably would be

open to collateral attack if one party later regrets the decision.

16We addressed this issue recently in Loya v. Loya, 526 S.W.3d 448 (Tex.

2017). The trial court there granted summary judgment for the husband

because the divorce decree did contemplate and partition a future employment

bonus. Id. at 450. The court of appeals, citing § 9.201(a), determined that there

16

But M.B. requests modification of nothing. She asks the court to

divide for the first time property that has never been addressed by any

court. S.C. is the one who filed a plea to the jurisdiction; his plea assumes

that the property was not divided by the divorce decree. 17 Accordingly,

we must assume that the final decree said nothing that constitutes a

division of the property at issue.

Subchapter C, in short, provides no mechanism to disturb finality,

but instead provides a way to establish finality for a property that was

never subject to a decree. Once divided, that property, too, would be

subject to the law of preclusion, and any attempt to redivide it would be

barred by res judicata.

C

The question now before us is whether Subchapter C went further

than creating a new remedy. Subchapter C allows a divorced couple to

was “a fact issue concerning the characterization of the bonus.” Loya v. Loya,

473 S.W.3d 362, 366 (Tex. App.—Houston [14th Dist.] 2015). We reversed and

rendered for the husband because the mediated settlement agreement had

contemplated the bonus—and had awarded it to the husband, making a

collateral attack impermissible. 526 S.W.3d at 452–53. We have repeatedly

addressed variations on this theme. See, e.g., Pearson, 332 S.W.3d at 364 (res

judicata prevents relitigating property division when a residuary clause had

divided the property); Reiss, 118 S.W.3d at 443 (res judicata prevents

relitigating property division when divorce decree had mischaracterized

separate property as community property); Shanks v. Treadway, 110 S.W.3d

444, 449 (Tex. 2003) (res judicata prevents relitigating property division even

though the divorce decree had improperly divided retirement benefits).

17 Notably, the agreement incident to divorce incorporated into the

divorce decree is not even in the record before us. We need not—indeed should

not—speculate or prejudge any merits issue that is properly left in the first

instance to the district court on remand. Such issues include the final

characterization of S.C.’s and M.B.’s respective interests (if any) in the

disputed property and whether Property Code § 23.001 may reach the kind of

property at issue. We instead resolve only the jurisdictional question that is

presented.

17

use the “just and right” standard to divide property that went

unaddressed by a final divorce decree. Does it also unequivocally

disallow access to any Texas court other than the original divorce court

and prohibit use of the partition action itself? We conclude that the

statutory text, within its larger context, warrants no such findings of

exclusivity.

1

First, the new cause of action tells the former spouses that they

“may file a suit” that asks a court to divide their tenancy in common.

§ 9.201(a). That new suit is truly a new suit, not a continuation of the

divorce: any new “suit is governed by the Texas Rules of Civil Procedure

applicable to the filing of an original lawsuit.” § 9.201(b). The new cause

of action has its own statute of limitations and its own standard for

tolling. § 9.202. The plain import of this language is to offer a new

remedy that parties seeking to divide property “may” invoke, subject to

Subchapter C’s particular requirements. Nothing in the text indicates

that the choice is, in effect, either to use this new method to divide the

property or to not divide it at all. Cf., e.g., Tex. Lab. Code § 408.001

(“Recovery of workers’ compensation benefits is the exclusive

remedy . . . .”). At minimum, nothing in the text suggests that, even if

both parties prefer the Property Code partition, the legislature

nonetheless has forbidden access to that remedy.

The dissent focuses less on “may file” in § 9.201(a) than on “shall

divide” in § 9.203(a). We agree, of course, that “ ‘[s]hall’ is mandatory

language.” Post at 8. But the mandatory standard of § 9.203(a) comes

into play only once a non-mandatory suit under § 9.201(a) is filed.

Regardless, the commonly used verb “shall” does not clearly convey

18

exclusive jurisdiction. The direction that “the court shall divide the

property in a manner that the court deems just and right,” § 9.203(a)

(emphasis added), plays a different role. First, “shall” unambiguously

ensures that the court must use the just-and-right standard, and

nothing else (such as those used in Property Code partitions). Especially

when the statute was new, such clarity may have been especially

important—until then, all former community property that had gone

undivided would have been subject only to a Property Code partition by

former spouses who had become tenants in common. Second, as we

discuss below, the emphatic “shall” confirms that if either party invokes

Subchapter C, the just-and-right standard must—shall—apply.

In any event, “just because a statutory requirement is mandatory

does not mean that compliance with it is jurisdictional.” Albertson’s,

Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999) (emphasis added). We

find nothing in the verbs of § 9.201 or § 9.203 to dislodge the presumption

of jurisdiction.

2

Second, the larger context of the Family Code confirms the

significance of Subchapter C’s lack of express language regarding

exclusivity, whether for Subchapter C (as opposed to partitions) or the

original divorce court (as opposed to another court). Elsewhere, the

Family Code repeatedly and unambiguously vests “continuing and

exclusive jurisdiction” in family courts over a host of matters. 18 In fact,

the Family Code uses the phrase “exclusive jurisdiction” or some

18 E.g., §§ 34.004(b)(3), 34.008(c)(3)(A), 51.04(a), 65.004(b) (“exclusive

original jurisdiction”), 152.202 (“exclusive continuing jurisdiction”), 155.001(a),

159.205(a), 159.211(a), 160.758 (“continuing, exclusive jurisdiction”).

19

variation over a hundred times in at least fifty-five provisions, not

counting the ten instances where it appears in a section’s title.19

Accordingly, the utter absence of any express language of

exclusivity is especially telling in the Family Code context. We certainly

agree with the dissent that “[n]o magic words are necessary . . . when

the context plainly indicates that the statute creates” exclusive

jurisdiction. Post at 9. But the context here is a Code in which the

legislature repeatedly uses some version of “exclusive jurisdiction” when

exclusivity is what it wants. We would ignore that context if we dismissed

the legislature’s decision to omit remotely comparable language here.

See, e.g., Crosstex, 430 S.W.3d at 392 (“[O]ur aversion to classifying

statutory requirements as jurisdictional prevents such classification

absent a clear indication from the Legislature of jurisdictional intent.

For instance, the Legislature chose to make certain filing deadlines in

the Labor Code jurisdictional with unequivocal language.”) (citations

omitted).

The absence of any such language anywhere in Subchapter C is

particularly conspicuous. After all, its immediate neighbor—

Subchapter B, for qualified domestic relations orders—is unambiguous:

“Notwithstanding any other provision of this chapter, the court that

rendered a final decree of divorce or annulment or another final order

19 The Government Code supplies one reason that the legislature so

readily uses the language of exclusivity in the Family Code. In § 24.601, the

Government Code authorizes “family district court[s],” id. § 24.601(a); grants

them “primary responsibility for cases involving family law matters,” id.

§ 24.601(b); and emphatically insists that this jurisdiction be concurrent with

other district courts, id. § 24.601(c) (“This subchapter does not limit the

jurisdiction of other district courts nor relieve them of responsibility for

handling cases involving family law matters.”).

20

dividing property under this title retains continuing, exclusive

jurisdiction . . . .” § 9.101. Other provisions within Subchapter B are

equally clear. See §§ 9.104, 9.1045. Subchapter C’s omission of any

comparable “exclusive jurisdiction” language is thus especially striking.

Something unmistakable must be present to displace the strong

presumption of jurisdiction. The Family Code generally achieves that

goal with clear and express language of exclusivity, which is lacking

here. Nothing else suffices to establish such exclusivity by implication.

The dissent points to the statute at issue in Thomas v. Long, 207 S.W.3d

334 (Tex. 2006), as an example of when no “magic words” are required.

See post at 9 n.21. That statute, however, “authorize[d] the [agency] to

extend specified rights to employees that are not available at common

law.” 207 S.W.3d at 341 (emphasis added). That statutory feature

warrants finding limited exclusivity there. But here, the opposite is

true. A finding of exclusivity would eliminate the right to partition

property, which is an historic “absolute right” as old as the Texas

Republic—one that allows a jury trial, to boot. See Part II.A, supra;

Parts II.C.4.a, II.D, infra. “We have consistently declined to construe

statutes to deprive citizens of common-law rights unless the Legislature

clearly expressed that intent.” ConocoPhillips Co. v. Koopmann, 547

S.W.3d 858, 877 (Tex. 2018). We would be rewriting this statute if we

imposed exclusive jurisdiction.

As to “continuing jurisdiction,” Subchapter C is not even merely

silent—it affirmatively points in the other direction. Section 9.201

makes clear that the divorce court’s jurisdiction as to post-decree

property division is not “continuing.” To invoke the Subchapter C

remedy, a former spouse must initiate new litigation subject to the rules

21

of procedure applicable to a new “original lawsuit.” § 9.201(b). There is

nothing inherently problematic in allowing a general district court to

divide property solely because that property once was community

property. Until Subchapter C provided an alternative, that was the only

way to divide such former community property. As we must assume on

S.C.’s jurisdictional challenge to M.B.’s suit, the former spouses were

tenants in common like any other (non-married) tenants in common.

Subchapter C does not change the parties’ or the property’s legal status,

but simply authorizes dividing that property under a “just and right”

standard that any district court can apply.20

In short, we cannot conclude that Subchapter C’s omission of

express language conferring exclusive or continuous jurisdiction was

accidental. Nor can we see anything else to fill in the gap by implication.

3

Next, we are mindful of the presumption of consistent usage of

the same words within a statute. See, e.g., Colorado County v. Staff, 510

S.W.3d 435, 452 (Tex. 2017). Section 9.203(a) arguably uses the word

“court” in a way that excludes any court other than the divorce court:

If a court of this state failed to dispose of property subject

to division in a final decree of divorce or annulment even

though the court had jurisdiction over the spouses or over

the property, the court shall divide the property in a

manner that the court deems just and right, having due

regard for the rights of each party and any children of the

20 After all, to the extent necessary, the previous division, or any

materials relevant to the divorce, will be available. The court likewise can

consider any changes, too, including conduct like hiding the former community

property at issue. See Chu v. Hong, 249 S.W.3d 441, 444–45 (Tex. 2008); cf.

§ 7.009 (addressing how to apply the just-and-right standard when there has

been fraud on the community).

22

marriage.

§ 9.203(a) (emphasis added). S.C. contends that “the court” refers

exclusively to the divorcing court. That reading carries some force, but

the consistent-usage canon depends heavily on context. “[M]ore than

most canons, this one assumes a perfection of drafting that, as an

empirical matter, is not often achieved. . . . Because it is so often

disregarded, this canon is particularly defeasible by context.” Antonin

Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal

Texts 170–71 (2012).

To be clear, courts should begin with the presumption of consistent

usage and, all else equal, courts should end there too. But all else is not

equal here. For example, the very next section in Subchapter C, which

otherwise is structured like § 9.203(a), uses express language solely to

remove any doubt about which court is being identified:

If a court of this state failed to dispose of property subject

to division in a final decree of divorce or annulment because

the court lacked jurisdiction over a spouse or the property,

and if that court subsequently acquires the requisite

jurisdiction, that court may divide the property in a

manner that the court deems just and right, having due

regard for the rights of each party and any children of the

marriage.

§ 9.204(a) (emphasis added). The use of “that court” restricts the

universe of courts to, literally, “that” single court and no other.

If § 9.203(a) had used the demonstrative adjective in the same

way that § 9.204(a) does, we could more readily agree that § 9.203(a)’s

remedy can be pursued only in the original divorce court. Or if neither

section had used “that,” the consistent-usage canon would at least be

harder to overcome. But a rigid insistence on reading “the court” in

23

§ 9.203(a) to mean the same thing as “that court” in § 9.204(a) rubs

against the surplusage canon. As the dissent acknowledges, only

§ 9.204(a) uses that to modify court, even though § 9.203(a) and § 9.204(a)

otherwise “use a similar formulation” and structure. Post at 7. We cannot

casually disregard the legislature’s decision to provide this textual clarity

only in § 9.204(a) when, if it intended the same meaning, it so easily could

have done so in § 9.203(a) as well.21 Our reading allows “the court” and

“that court” to bear their normal English meanings. The statutory text,

in other words, indicates that § 9.203(a) cannot overcome the presumption

against jurisdictional exclusivity.

Moreover, we cannot conclude that § 9.203(a) uses “court” as a term

of art that requires the exquisite consistency that would be necessary

for us to find that the word “court” compels exclusivity. As Justice Story

noted, the word “state” is used in at least four different ways in the U.S.

Constitution itself, and in each instance, context reveals the correct

meaning.22 Likewise, “court” is not a specialized or technical term;

“court” appears frequently in statutes describing the litigation process,

and is used in at least five ways in Chapter 9 of the Family Code alone,

each time providing guidance that is tailored to the context. 23 The

21 The dissent illustrates how using “that” rather than “the” really does

convey useful information: “In contrast, when a district court had jurisdiction

and rendered the initial decree, . . . that court is the court that ‘shall divide’

the property.” Post at 7 (first emphasis added). Particularly given how the

legislature used “that” in § 9.204(a), its failure to do so in § 9.203(a) should not

be so easily dismissed as meaningless.

See Scalia & Garner, supra, at 171 (citing 1 Joseph Story,

22

Commentaries on the Constitution of the United States § 454, at 323 (2d ed.

1858)).

The divorce court, e.g., § 9.001; possibly a court other than the one

23

that rendered a divorce decree, § 9.103; a court that renders a qualified

24

context of § 9.203(a) is the new lawsuit that § 9.201 authorizes. “[T]he

court” in the second half of § 9.203(a) describes the tribunal that may

adjudicate the divorced couple’s new dispute—about dividing property

that they still jointly own because they did not divide it in the divorce

court (which is the “court” referred to in the first half of § 9.203(a)).

Further illustrating that “the court” need not inexorably refer only to

the original divorce court, its use in § 9.203(a) plays a distinct role—it

confirms that it really is the court, and not a jury (and perhaps a slate of

court-appointed commissioners, see Tex. R. Civ. P. 761) that must

conduct the division.24 To identify “the court” that has this authority in

any one case, we must turn to § 9.201, which creates the cause of

action.25

domestic relations order, § 9.1045; a court of another state, § 9.203(b); and a

court of this state vis-à-vis a foreign court, id.

24 The dissent contends that our refusal to embrace its exclusive-

jurisdiction reading means that “the designation of a particular court to hear

such a claim, is completely unnecessary.” Post at 6. To the contrary, our

analysis gives important meaning to every word in the statute. The antecedent

conditional (“If . . . the property”) defines the set of cases to which § 9.203(a)

applies. “[T]he court” then ensures that a court, not a jury, decides the division.

“[S]hall divide . . . just and right” provides the substantive rule of division,

analogous to § 7.001. The rest of the provision, including requiring recognizing

children’s interests, accounts for obligations such as those in Article XVI, § 15,

of the Texas Constitution.

25 Section 9.201(b) provides that, “Except as otherwise provided by this

subchapter, the suit is governed by the Texas Rules of Civil Procedure applicable

to the filing of an original lawsuit.” (Emphasis added.) The language of

§ 9.204(a) does limit the “court” to the one that previously lacked but now has

acquired jurisdiction. That express language satisfies the exception in

§ 9.201(b)—it is an exception because it describes the single court as alone

being empowered by that subsection. Section 9.203(a), by contrast, lacks any

such direction, thus leaving intact the default under § 9.201.

25

4

Again with some force, S.C. urges application of another important

canon—that the specific prevails over the general. M.B. disputes that

Subchapter C is more “specific” than Property Code § 23.001. We agree

with S.C. (and the dissent, see post at 17–18) that Subchapter C is

“specific” and Property Code § 23.001 is “general” when it comes to

dividing a divorced couple’s undivided property. The general-specific

canon, however, does not warrant eliminating Property Code partition

actions or making the divorce court’s jurisdiction exclusive. But the

canon does confirm that courts must choose § 9.203(a) as the rule of

decision in cases involving post-decree property divisions when “[e]ither

former spouse,” § 9.201(a) (emphasis added), invokes Subchapter C.

When that happens, any court “shall” apply the specific “just and right”

standard, § 9.203(a). We address both aspects of the general-specific

canon.

a

The general-specific canon does not require or even authorize

altogether eliminating Property Code § 23.001. The premise of the canon

requires more than the existence of a “specific” and a “general” provision.

Rather, the two enactments must also be “conflicting provisions [that]

simply cannot be reconciled,” thus requiring the displacement of the

general enactment when the specific one applies. Scalia & Garner,

supra, at 183. Only if Subchapter C and Property Code § 23.001 were

irreconcilable, or if Subchapter C would be rendered surplusage merely

by the existence of the general partition remedy, could we find that the

specific enactment has displaced the general. See, e.g., Graphic

Packaging Corp. v. Hegar, 538 S.W.3d 89, 97–98 (Tex. 2017); In re Mem’l

26

Hermann Hosp. Sys., 464 S.W.3d 686, 716 (Tex. 2015).

These statutes are not irreconcilable either in text or in practice.

Both Family Code § 9.201 and Property Code § 23.001 use the permissive

“may” when describing the causes of action with no textual indication that

either is the exclusive means to partition property. Neither statutory

option is merely a subset of the other. The substantive standards,

statutes of limitations, and access to a jury, for example, are all different:

• In a partition action, the owner takes his proportionate share of

the property, see Prop. Code § 23.004(a), whereas Subchapter C

applies the equitable “just and right” standard that would have

applied in a divorce, see § 9.203(a).

• There is no statute of limitations in a partition action (aside from

the general availability of adverse possession), see, e.g., Hanrick,

54 S.W. at 355, whereas Subchapter C adopts a two-year period,

see § 9.202.

• In a partition, the parties have the right to a jury trial to resolve

factual disputes, see, e.g., Payne, 16 Tex. at 369–70; Azios, 653

S.W.2d at 112–14, whereas Subchapter C commits those questions

to the authority of “the court,” see § 9.203(a) (“the court shall

divide”).

• Attorney’s fees are not separately authorized in a partition action,

whereas Subchapter C specifically provides for discretionary fee

shifting, see § 9.205.

The two statutes can harmoniously coexist.26 One can imagine a

26 While we do not opine on the soundness of any particular decision, we

also note that the intermediate appellate courts repeatedly have read the two

statutes to be harmonious rather than intractably irreconcilable. See, e.g., Mann

27

scenario in which both parties prefer one option rather than the other.

Many years may have passed from the divorce, for example. And

perhaps the only thing that the parties contest is the amount of an offset

that must be credited when splitting the property—who has paid more

to maintain or insure or improve it. Perhaps neither party welcomes the

uncertainty that would flow from a laborious, fact-intensive, and costly

“just and right” division so long after the divorce. Perhaps both prefer

to avoid dredging up stale but painful memories or rehashing who did

what to whom and who deserves what from whom. The dissent would

openly require all this dredging, and more, see post at 13–14, even if both

parties prefer a Property Code partition.

The dissent notes that in cases (unlike this one) that involve real

property, Property Code § 23.002(a) would require venue in a “district

court of a county in which any part of the property is located.” See post

at 19 n.53. This could be “a county far from the court that heard the

divorce, possibly to one spouse’s extreme detriment.” Id. at 19. Perhaps,

but everyone who owns real property, not just former spouses, is subject

to that law. That venue requirement has not seemed oppressive,

particularly when partition litigation may be considerably more

expeditious than a holistic just-and-right division. And mandating a

return to the original divorce court could be to both spouses’ “extreme

detriment.” Both could reside far from that county. These complaints

v. Propst, No. 05-19-00432-CV, 2020 WL 1472212, at *9 (Tex. App.—Dallas

Mar. 26, 2020, no pet.); O’Carolan v. Hopper, 414 S.W.3d 288, 313 (Tex. App.—

Austin 2013, no pet.); Bass v. Bass, 106 S.W.3d 311, 316 (Tex. App.—Houston

[1st Dist.] 2003, no pet.); Bishop v. Bishop, 74 S.W.3d 877, 879 (Tex. App.—

San Antonio 2002, no pet.); Mayes, 11 S.W.3d at 448; Phillips, 951 S.W.2d at

957; Burgess, 893 S.W.2d at 90; Carter v. Charles, 853 S.W.2d 667, 671 (Tex.

App.—Houston [14th Dist.] 1993, no writ).

28

seem primarily aimed at the possible inconvenience of venue—not

jurisdiction. If venue is a problem, the legislature is perfectly capable of

addressing it in this or any other context.

Nor is there any guarantee of countervailing benefits from

insisting on exclusive jurisdiction. The dissent repeatedly invokes the

personalized knowledge of the divorce “court,” e.g., post at 18–19

(contrasting that court and a different “court without . . . first-hand

knowledge”); id. at 19 (comparing the divorce “court” with one

“[u]nfamiliar with the facts and record”). But judges, not “courts,” have

knowledge of or familiarity with a particular record. We readily agree

that returning to the same judge sometimes may provide great efficiency.

We expect most parties to do so for the sort of quick-fix post-decree

division of newly discovered undivided property, which is when

Subchapter C is especially helpful. Both parties—even if it only takes

one to file—are likely to find it advantageous to return to that judge.

But they may not be able to guarantee access to the same judge no

matter how soon they seek to return. 27 And as time passes, any judge’s

memory of a particular divorce is likely to fade—if the judge is even still

sitting. It can take well over a decade following divorce for some parties

27 To take but two examples, see, e.g., Irick v. Lineberry, No. 01-20-

00232-CV, 2021 WL 5829096, at *3 (Tex. App.—Houston [1st Dist.] Dec. 9,

2021, pet. filed) (“The new year brought a newly elected judge to the trial court.

Until then, the divorce, the post-divorce suit, and the summary judgment were

all ruled on by the same trial judge.”); In re Martinez, 478 S.W.3d 123, 124

(Tex. App.—Houston [14th Dist.] 2015, no pet.) (“In March 2013, [the]

husband, filed a petition for divorce. Several months later, on November 18,

2013, . . . a visiting judge, dismissed the case for want of prosecution.”).

29

to seek to divide the property.28 The dissent observes that a successor

judge may take notice of the court’s records, post at 20 n.54, but so can

any other judge. See, e.g., Freedom Comms., Inc., 372 S.W.3d 621, 623

(Tex. 2012) (citing Tex. R. Evid. 201). Nor will those records necessarily

be a panacea. In this very case, a key document—the agreement incident

to divorce—“is not filed with the records of [the divorcing] Court,”

according to that very court’s decree.

Moreover, if Subchapter C is truly jurisdictionally exclusive, then

every Texas court (including this Court) would be duty-bound to dismiss

sua sponte a partition action (or even a § 9.203(a) action brought in a

court other than the divorcing court). Courts always have the duty to

ensure that subject-matter jurisdiction—their own and that of the lower

courts—is secure. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852

S.W.2d 440, 445–46 (Tex. 1993). Adding further uncertainty, any

partitions that did not take place in the divorce court would become

vulnerable to a true collateral attack. Engelman Irrigation Dist. v.

Shields Bros., 514 S.W.3d 746, 750 (Tex. 2017); see supra note 15

(describing this consequence of the dissent’s approach).

b

The absence of special jurisdictional consequences in Subchapter C,

however, does not mean that the general-specific canon plays no role

whatsoever in cases involving post-decree property divisions. When a

former spouse asks a court to divide specific property, after all, the court

28 See, e.g., Evans v. Jones, No. 11-19-00008-CV, 2020 WL 7414162, at

*1–2 (Tex. App.—Eastland Dec. 18, 2020, no pet.) (twenty-two years from

annulment to partition); Kadlecek, 93 S.W.3d at 905 (fifteen years from divorce

to partition under Subchapter C); Naydan v. Naydan, 800 S.W.2d 637, 641

(Tex. App.—Dallas 1990, no writ) (same).

30

must be able to apply a single rule of decision. Two competing claims to

the same property cannot be resolved separately. The property must be

divided and can only be divided once, which is why a court historically

has been able to maintain exclusive jurisdiction when a “res” is the

subject of litigation. See, e.g., Kline v. Burke Constr. Co., 260 U.S. 226,

229–30 (1922); First S. Prop. v. Vallone, 533 S.W.2d 339, 342–43 (Tex.

1976).29

The task of division is easy if both parties agree on the approach

or if only one party pursues the litigation. But if a court with jurisdiction

to divide property confronts a valid claim for a partition by one spouse

and a valid counterclaim under Subchapter C by the other (or vice versa),

the court will avoid intractable conflict by applying Subchapter C,

because the specific prevails over the general.30 If what S.C. wanted was

a just-and-right division, nothing precluded him from invoking § 9.203(a).

Viewing the two statutes in this light avoids imposing improper

jurisdictional consequences and avoids placing the courts in the

confounding position of having to divide the same property under

29 A party who wishes the court to divide the property in a different way,

therefore, should file a counterclaim in the court that has taken jurisdiction.

If the party prefers a different venue, the ordinary rules governing venue would

apply, but no such question is before us.

30 Notably, neither party advances the argument that any court other

than the divorce court can entertain an action under Subchapter C. We readily

credit both sides for giving their best construction of the statute. But their

interests on this particular point are less adverse than as to the rest of the

case. Petitioner wishes to litigate the matter only in the divorce court and

without any shadow of a partition action. Respondent wishes to litigate only in

the non-divorce district court, and only for a partition, which is inconsistent with

giving the district court authority to proceed under the “just and right” standard.

31

different substantive rules.31 This resolution also should eliminate the

serious concerns that motivated Chief Justice Sudderth’s dissent.

Understandably, she found repelling the notion that a spouse could hide

property, wait for the divorce to become final, then obtain an equal split

via a partition action in a new court, rather than a “just and right”

division in the divorce court. Today’s dissent likewise worries that even

authorizing the possibility of a Property Code partition “provides an

incentive for embittered parties” to wait for a final decree and then sue

for partition. Post at 18–19.

But our holding eliminates that incentive. A spouse’s effort to

avoid Subchapter C will fall flat if the other spouse invokes it. 32 Any

court with jurisdiction must apply the “just and right” standard if, as

§ 9.201(a) expressly puts it, “[e]ither former spouse” asks for it. (Emphasis

31 Our resolution also eliminates any superficial conflict, so there is “no

repugnance.” Waffle House, Inc. v. Williams, 313 S.W.3d 796, 815 (Tex. 2010)

(“This case . . . concerns implied statutory preemption of a common law claim,

something our jurisprudence disfavors absent clear repugnance between the

two.”) (quotations omitted); contra post 15. Compare Waffle House, 313 S.W.3d

at 815–16 (“Because in Zeltwanger the TCHRA covered the same emotional

damages caused by essentially the same conduct, we held that there was no

remedial gap to fill. Here, by contrast, Williams’s negligence claim is based on

assault, a well-established common law tort.” (citation omitted)), with Part II.D,

infra (explaining how eliminating Property Code § 23.001 for post-decree

undivided property would leave remedial gaps).

32 The dissent in the court of appeals described as “absurd” a holding

that did not confine subject-matter jurisdiction to only the divorce court. But

the law until 1987 mandated a partition in cases like this one, absent a

showing of extrinsic fraud. The 1987 statute greatly mitigated the problem of

former spouses being unfairly forced to use partitions, but it is not absurd for

a legislative enactment to reduce yet not wholly eliminate concerns with

existing law. The legislature, and not the courts, must decide how far to go

and at what speed. Rodriguez v. United States, 480 U.S. 522, 526 (1987) (per

curiam). Happily, on our understanding of the text, even the seeming absurdity

turns out to be largely illusory.

32

added.) Our statutory analysis seeks to accurately construe the text, not

to avoid a particular outcome—but an accurate construction frequently

eliminates consequences that otherwise might seem troubling. Our

construction should deter the egregious gamesmanship that may have

plagued divorces in the past, and a court that perceives an attempt to

dodge the just-and-right standard will be well equipped to respond

forcefully.

D

Finally, we note several problems that our statutory construction

avoids. We start with the right to a jury trial, which has always been

guaranteed for any factual disputes attending a partition. We assume

without deciding that the legislature can draw former spouses back into

the non-jury-trial regime. Without clearer text, though, we find it hard

to imagine that the legislature would mandate the wholesale elimination

of both the ancient right to a traditional partition33 and the role of the

jury even when both sides desire such a partition and a jury trial.

Finding Subchapter C to be the exclusive remedy and the divorce court

to be the exclusive forum, however, would automatically sweep away

those important features of existing law.

Perhaps even more serious, reading Subchapter C in that way

would require us to conclude that the legislature has eliminated some

property rights altogether. If one former spouse “unequivocally

repudiates” the other’s ownership interest at any point, then a two-year

clock begins to tick. § 9.202. If Subchapter C is truly exclusive, then at

the conclusion of that two-year period, the spouse in possession effectively

33 Ellis, 17 Tex. at 133–34.

33

has adversely possessed the other spouse’s undivided property interest.

Subchapter C is a seeming expansion of solicitude for former spouses; it

would be surprising for it instead to sub silentio create, uniquely harming

former spouses, a two-year adverse-possession statute—a shorter period

than all the adverse-possession statutes in the Civil Practice and

Remedies Code. See Tex. Civ. Prac. & Rem. Code §§ 16.024–16.028 (the

shortest adverse-possession limit is three years). 34 We again think the

legislature would speak directly and clearly if it intended such a striking

result, particularly given that all these rights—the remedy of partition

itself, the right to a jury trial, and the fundamental right of property

itself—are among the most important in Texas law. 35

By contrast, our reading entails no such drastic or surprising

consequences. Because Subchapter C is not exclusive, § 9.202’s statute

34Under the dissent’s approach, adverse possession (or at least the

consequences of adverse possession) would take place even sooner than that.

The dissent refers to “a former spouse bring[ing] a challenge within the proper

time frame,” post at 10, but there is no time frame other than the expiration of

two years after “a former spouse unequivocally repudiates the existence of the

ownership interest of the other former spouse,” § 9.202(a). As to the problem

of determining ownership of undivided property, the dissent just says that “[a]t

some point courts must look beyond the perpetual assertion of an unrecorded

community interest—to a contract, deed, or other relevant evidence—to

determine ownership.” Post at 17 n.48. What constitutes “some point,” and

how are courts supposed to use “relevant evidence” to wipe away one spouse’s

property interest? These questions go unanswered, and perhaps are

unanswerable—but our reading of the statute wholly avoids them.

35 See Wright, 7 Tex. at 533 (applying the remedy of partition to a

divorce decree in 1852); Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 477 (Tex.

1997) (“The right to jury trial is one of our most precious rights, holding ‘a

sacred place in English and American history.’”) (quoting White v. White, 196

S.W. 508, 512 (Tex. 1917)); Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 140 (Tex.

1977) (recognizing the view of property rights “as fundamental, natural,

inherent, inalienable, not derived from the legislature and as preexisting even

constitutions”).

34

of limitations simply means that, two years after an “unequivocal

repudiation,” the legislature deems a divorced spouse to have forfeited

access to any post-decree “just and right” determination. The underlying

property interest itself would not be extinguished. Nor could the former

spouse who repudiated the property interest claim any unfairness. If the

spouse who repudiates the other spouse’s interest wishes to avail himself

of Subchapter C as an alternative, he should bring suit under it, which

would not prevent his ability to argue that the other spouse has no

cognizable interest in the first place. But if the two-year post-repudiation

period passes without either spouse having invoked Subchapter C, then

neither spouse may ever do so. Both of them (and anyone to whom they

may assign their interest) remain free, however, to use the Property Code

partition action to the same degree they could have before Subchapter C

was enacted.36

We note that the dissent’s position would not avoid any of these

problems. It would, in fact, engender even more. Take, for example, the

problem that would arise if one former spouse—now a tenant in

common—transfers her interest to someone else, whether by sale, death,

gift, or otherwise. Subchapter C expressly limits its reach to “[e]ither

former spouse,” § 9.201(a), not to anyone who might wind up in a chain

of title.37 But if former community property can only be divided in the

36 The Fourteenth Court has already used the Property Code as a

backstop after the limitations had run under Subchapter C’s predecessor.

Carter, 853 S.W.2d at 671 (“Still further, even if § 3.90 applied to bar an

enforcement action under the Family Code, that section would not operate to

bar an otherwise valid partition action under the Property Code.”).

37The dissent claims that the Business Organizations Code governs the

partnership interest divided by divorce. Post at 16 n.44. We take no position

on that question because on this plea to jurisdiction we must assume that the

35

original divorce court and only under Subchapter C, what happens if no

former spouse can bring the action? Must the property remain in

suspended animation—an eternal tenancy in common, at least until one

party can buy out the other(s)? Or does the suspended animation end, as

the dissent provides, in adverse possession? What sort of cloud on the

title to the property would be occasioned by such a scenario? Or would

the partition action spring back to life as soon as interests in the tenancy

in common are transferred to someone else? Could it truly be the case

that the legislature—with the force of subject-matter jurisdiction—

intends to lock former spouses into a just-and-right regime even if

neither of them wants it, yet gladly restores access to partitions by the

simple expedient of a property interest being transferred? Would

transferring only a small portion be enough? Or could the former

spouses create wholly owned entities to receive title to the property—

and then those entities could pursue the desired partition?

These questions may seem silly. But giving Subchapter C

jurisdictional import would guarantee that such issues would arise. Our

simple reading of the legislature’s work avoids them all.

III

We hold today only that the statute that the legislature has

passed does not mandate any requirements beyond those expressed in

the statutory text. The statute as written is a gracious remedial

expansion by the legislature, and we are authorized to do nothing more

than apply that statute. To put it mildly, we do not “discard[] the

Legislature’s prerogative” to do anything. Post at 2. We do not “adopt

partnership interests were not divided. See supra notes 1, 17. The district

court will be free to examine this question on remand.

36

[our] own” way to divide property. Id. at 15, 16 n.47. We do not “undo[]

the Legislature’s work.” Id. at 17.

The legislature remains free at any time to adjust Subchapter C

in any way that it deems proper. If the legislature does revisit

Subchapter C, it is likely to modify it only after undertaking the same

careful analysis and consultation with the bar, the public, and other

stakeholders that led it to enact the 1987 statute in the first place. Any

modifications it enacts are likely to account for—and avoid—the myriad

of problems that would flow if this Court were to insist on imposing

jurisdictional consequences on the current version of Subchapter C.

We affirm the judgment of the court of appeals and remand the

case to the district court for further proceedings. We express no views

about any remaining issues between the parties.

Evan A. Young

Justice

OPINION DELIVERED: June 17, 2022

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