Untitled Texas Attorney General Opinion ( 1947 )

R-59
Tmm A-rrox``y GENERAL
OF TEXAS.
Auerm aa. -
PRICE DANIEL
*TTORNEY GENERAL
Maroh 8, 1947
Hon. Weldon B. Davis Opinion No. Q-79
County Attorney
Austin County Re: Construction of Article 15,
Bellville, Texas Revised Civil .Staturee of
Texas, qualifications of a
county judge under various
ciroumstances.
Dear Mr. Davis:
Your letter or January 19th to this Department,
requesting a oonstruotion of ,Artlale 15, Revised Civil
Statutes, 1925, in part is as r0ii0ws:
“1. Is tbe present County Judge under the
above statutes disqualified from acting as judge
in any subsequent probate matter wherein he has
__ heretofore acted es counsel and especially in
new matters affecting the probate matter In which
the present said county judge has n.ever advised.
“The present County Judge, Honorable :?I. C.
Bryan, was before January 1, 1947, an attorney in
thts county. As en attorney, he imndled numerous
probate matters, many of which are still in court,
such as guardianship matters ,. administration of
estates, eto. As an attorney In a case he natur-
ally aevlsed with his olients, simed. papers as
.I ,. attorney ror his Client, etc. Now the question
is ,. in t&se probate matters, where he has ,former-
ly wpreseated 8.. guardian, eraoutor or administra-
tor, is. he ww as County Jld’gs”qualified to enter
orders ae4tmtty Judge .owfinai eooount.8, annul
aoeounts; ‘reports or’ reles ,of prop6 rty, or any
other order that it may beoome neoessary to enter?
“2. IO a rpeolal County Judge who has been
heretororo appolnted by tha Oovrmor to save in
a oertrln probate matter qurliri~e to oontinue to
aot shoe a new Oounty Judge ha been eleotedd?
“Mr. 5. Lee Dittert,an attorney or this City,
was., until Deo. ‘31, 1940, the County Judge or this
i
Hon. Weldon B. Davis, Page 2, V-79
County q As the County Judge, during his tenure of
offloe, he dlsquallfled hlmaelf in many oases, end
especially in probate matters, and in such cases
where he certified his disquallfioetlons to act to
the Governor, the Governor appointed e Special Coun-,
ty Judge to act in his stead. Now the question la
this : Since Mr. J. Lee Dittert is no longer the
County Jua~ge does the apeolal County Judge that was
appointed to act in lieu of Mr. Dittert at111 oon-
tinue to act, or does the new Judge (Hon. W. D. Brg-
an) now act In such cases?”
Article Q, Section 11 of the Constitution of
Texas, is in part as follows:
*No judge shall sit ion any case wherein he
may be interested, or where either of. the parties
may be oonnected with him, either by affinity of
consanguinity, within such a degree as tmy be pre-
soribed by law, or when he shell have been oounsel
in the oese. * * * Ww
Article 15 of the Revised Civil Statutes of Tex-
as, 1925, 1s a9 follows:
*Ro judge or justioe of the peace shall sit in
any oase wheraln he may be interested or where eith-
er of the parties mry be oonneoted with him by af-
finity or consanguinity within the third degree, or
whore he shall have been oounsrl in the ease.”
That pert of Artlole V, Seotlon 11, of the State
Constitution and ertldent to our question provides that
e judge Is disqua Elried under three olroumstanoes:
1. No judge shall,slt in any case wherein he
rmy bo lntorosted.
2. Where either of the parties may bs oonneot-
ed with him eitbsr by aiilnlty or oonsanguinlty and
within euoh a degree as nuy be presorlbed by law.
3. Whore ho may h4ve beon oounsel in the oeso,
Ws ather iron your letter that the judge 1s not lntereat-
ed Pn the subjoot matter In any of the probate matters
whioh will oom 4 before him, nor Is he related to any of
the parties lnterssted in ths subjeot matter being llti-
grtod borore th4 aourt. You will note rmm ths r0mg0i0g
Hon. Weldon B. Davis, Page 3, V-79
that if the oounty judge has a peounlary interest in
ths sub jeot matter over whloh ho ,prosl4ea, ho Is dla-
qualified e Tha protsotlon of the citizens against ln-
justioc end wrong mkes thla enforo4ment sassntlally
nsoeesery o The lrpartlalIty wbloh la requIr4d of e
judge is lncompetlble with having a peouniary interest
l;e;Ee;ubject matter of the litigation over which he
hawvsr irom your requmst thst
e he pre4kw~o%~&dg4 baa io labelrest In the subject
matter of any of the oases In which he is to al%, there-
fore, w4 do not deem It neoesaary to dlaouss this phase
0r the law.
Also, the Constitution, as well as the stat-
utes, forbids any judge to sit where he msy have been
counsel in the case. The roeson for this is, of oourse,
it would be highly 1mpolitIo for a judge to decide a
question lawfully befora him far adjudication, where ho
had provlously been of ooun44l for one of the p4rfAes
to a proceeding lnvolvlna ths qu4lJbion to be daofdsd.
In other. words, such 8 judge is not suflposed by the law
to be thot fslr, unbin-?a , ungre.iuaiced judae before
Whomthe parties in his, CO,urt,maWtrustfully .pmsent
tlw, oontror4r4i44.
The firat quoatloa that must be d4temlneA in
ordrr to anawer your Inquiry, 18 what Ia meant by the
word *oasow as used fn this aoameotlon. The word ‘*case”
aa used in the Oonatltutlon and thla sttitute means any
logal ooatnroray betwaoa gwtI~a with roapeot to a mat-
tar Or iant or of 18~; any jmtloiable mattar or thfng
botweoa spp4alng p4rtlaa pmmnt& ior daolslan; any pro-
oeedlag rightly befOr a jadg4 wIilih reapsot to any right
4f the partier, whether Lagal or equltablo, and whethar
‘1% lnvolvar a pmporty right or a para~aal right.
ft inalud4a ,ordcm wbth4r lnterlooutdti hzn-
appealable, or Interlooutory appealable awdam. F
In a matter p4ndI beroro the Dlatriot Court, there Ay
lr la avarlouu 14ga"p oontrovemier reruttiry; in lntarloa-
rrtory Or&Or% iYm& whioh a0 appeal rould lia. Upon rush
an appeal am,
or a r080ir~*
furl or the baklag
ratid for l)proral
00 lr lu %80p ub 09 0 p r o o wdlr (
dth mp r o t to a p a r -
tloular 4lalW or mttor, aad the &ik4, oaah of rhloh’or-
d4r4 apt88 rmohl8g thq AppOAl8tO dourt would ba a "olab',
tba and there pmpwly befor, the Oourt to be justiolat-
ad - draldd bt t)ra OOu&?te Uo think tin word lon844 in
- L
Hon. Weldon B. Davis, Page 4, V-79
the aonnection being considered .Inoludee such interlocu-
tory appeala and i8 the a(180 In.whIoh he must have been
counsel to one of thGa=8. It doss not mean the gen-
eral cause, proceeding or 0888, out of,which the inter-
looutory order arose, for that oa8e or prooeedlng is not
berore the Court ior decision one war or the other. The
admlniatration of an e&ate end guardienship in probate
is a oontlnoi pmoadure and 8eoh r8ek of the, year there
ay be an appl2 oatlon filed In the ~Pmb8t8 Moue in the
name estate or guerdlanahlp. However, the subjebt mat-
ter In eaoh Inatanoo may .ba diiierent and entirely aep-
arate from the application filed in the same estate or
&ardianship at a later and dirrerent time. For instanoe,
an applioation for the sale o? reel estate might be filed
and next week an applloatlon might be tiled for an allow-
anoa 0r an administmtor~s tees or attorney’8 ices, or
It might be that the oounty judge Is .oallsd upon for an
approval oi an annual or final aooount. In eaah Instanoe
the subjeot matter boiors the Oourf I8 entirely ~dirferent,
separate ana dletinot from the other. In Volume 6, page
230 of Wotis md Phre8e8, w8 find the folloklng:
nA pmoudlng In whloh ‘a mother~(11 appoInted
guardian of the person’and property of bar datrghtsr
wa8 a voa8e’ within statute providing that no pereon
ehall slt a8 a judge in ady ase in whIoh he ha8
been of oou~el, but oass en %ed with entry of order
appointing guardlen whloh .wa8 a ‘ilaalq .ana appeal-,
able order, and judge who aoted as attorney in that
oa8e wan not .dI8quelI~Ied rrom hearing and detexmln-
Ing qurrtion raleed by order dIr8otIly &erdien to’
tile her Inv8ntory an4 aooount8, sinoe that wan e .$ew
and dI8tInot *oe~le*~ Organlo hat. II 84, 48 u.s.C.A.
8 686. In co Wetilatihi’p OS‘Rltohoook, 20 Hew. bS3.*
Al80 In 33 Oorpu8 JurIe.,Page 1004,we find the
tollo*I~:
*A hyd&e who he8 aoted u oowe1 in the ap-
polntmmt of a rdiaa or a raoelver I8 not neoae-
eerily dIrqaalI r ed from aotily In other ratt8h r8-
latiw td tb utate. Thu h8 18 not dirquallfled
frqm eating In auttra SUetIm to the 88ttlem8nt
Of their 8OOOUllt8." .
In th8 oe8e of Tltlo @aaFnty and Sweaty Ooape-
ay 18. Sllolrer, 128 ho. 6@6, tu8tIoe Kane ot the Bupremo
Ooiart of Oklahoma bd thi8 to 8e7:
“The l88t e88Iganot $8 t0 the 8ff8Ot that the
aourt emd In w*mlIa~ th8 d8fmdant*r motion to
i
. .
. a
Hon. Heldon ti. Davis, Page 5, V-79
set aside the judgment herein on the ground that
the settlement CC ,T.1. Sllnker's gusrdianship ac-
counts by the county court VIRS voi?, for the rea-
son that the county ,iudge settling Jaid acoouats
was diSa_ualified to SD act, in that he hs? repre,-
sented the. said S. I. Slinker es an attorney in
securing his appointment maay years prior to the
date of the said accounting. The only evldeure of,=
rered on this point was t&e order removing Bdr
Slinker as gaardian, whloh contains a recital that
said judtdg6was disqualified to sit in the hearia
of the petition for said Slinker's removal, in that
he bed been Of counsel in the natter of SeOUring
his appointment. We do not think that this evi-
dence tends to connect the county judge with the
accounts settled In such a manner as to disqualify
him from acting In the matter of their settlement,
In the case Of State ex 1-41 MCCormiok v. woody,14
Mont, 465, 36 PBO. 1043, It wa8 held: ‘A judge who
had been attardy for an adnlniatratrir la not dis-
qualified to try a proaaedlng brought by oertain
oredltore of t& b&ate to remove her, plder sec-
tIon M7 a? the Coda of Civil Procedurea providing
that a judge ehall not eat as such where he has been
8ttOZp8y for either party In the action or'prxeed-
IlyO'*
SImIlarly, In Ryan tar bsIg3, 136 Pat q 804,
the hurt In holdl~ thtrt a OountJI judge was not disqual-
iiiad to snter ord8r for the 8ale oi a dooedent's land
beoaues he bed formerly been ths attorney for the admin-
istrator of the estate said:
"ft is urged on behalf 0s appellants that Noon-
an, the aoaaty judge, harim been the attorney for
the administrator, Rays, was di8qualifIed under
aode section 464, Revised Statutes. to enter the
oXd8r for the sale of the land. The pertinent por-
tion of seotion 404 made a8 follows: 'A judge shall
not aot a8 suoh,in shy of ths follawing cases: In
an 8otiOn or prooreding. . , when he has been an at-
torney or ooun881 far aIthar party in the aation or
proasediry, Uti888 by tha oonaant of all the parties
to the aotion.' This oas4 ha8 baen before the sup-
*4 oourt, and In Ryan *I# Gsigel, 39 Cole. 35%
358, 89 ha. 7m, the 00Wt, 8 eakily throwh the
lats ChIet Juatioe $tC)dC), 1a I& 'The proceed-
ing to sell real est8te Is separate and ais-
tlaot fnm ths atslairtntlon of the estate prop*rC;
Hon. Wsldon B. DaVia, Page 6, V-79
and is a special proceeding, recognized by the
statute.’ Judge NoonanVs profeasionn1 oonnec-
tion with the estate had entirely ceased long
before proceedings were instituted in this case
to sell the real estate. For several years af-
ter Noonan’s election to the office of ‘probate
judge the title to the land In question was in-
volr4d in an adverse proceeding in the land of-
fice. Inasmuch as Judge Wootnn had nothing what-
ever to do, as an .attornay, with the proceeding
to sell the real estate, there was nothing in his
early professional connection with the adminis-
tration proceeding that disqualified him from
later, as county judge, entering the order in
quest ion ?
In probrtb mattera,edch epplioetion ~which is filed pa
considered a case in a sansb. Each order which is en-
ter4d by the probate judge may be appealed from and has
all the necesaasy requirement4 to make it a case under
th6 law. Therefore, if the prreent aoulaty jkdgo hms ad-
risod in any partioular applioation or ratter n4w or
hereafter before him, he is diequalified. If, on the
other hand, the matter is one in which he has never ad-
vised the administrator or guardian, then it is, the o-
pinion of this Department that .hs is not disqualified
to ,aat just because he haa advised the admi~nlstrator
or guardian in other matters in the sam4 estate. With
the ~foregoing in mind, it is the further opinion of
this Department that the county judge is not disquali-
fied to aot .in approving annual aocounts, .orders approv-
ing or confirming the sales o? real estate and other or-
ders in the same estate or guardianship in which he has
acted a4 aouneel, if he has not advised in the partiou-
lar order which he is now called upon to ent tr or required
to approve action which he had advised upon as counsel,
50 S.W. (2d) 473; ~162 S.W. (26) 419.
It is hardly oonosivabf4, howevtr,. how an attor-
ney who haa been oounsal for the administrator or guardian
of an estate, aould later sit as county jud(r~e and approve
the final account in that. partiaular 44tat4 withaut pess-
ing upon some phase of the matttr on whloh he has fonner-
ly adviaed. Therefore, it is ths opinion of this Depart-
ment that the county judg4,ia diequalified to approve
the final account in any 0444 In whioh ho Ma acted as
aollnsel.
Queetibn NO. 2. Is a special county judge who
Hon. Weldon B. Davis, Page 7, V-79
hsa been heretofore appointed by .the governor to serve
In a certain probate matter qualified to oontinue to
act since a new county judge has been eltcted and duly
qualified?
“Art. 1932.’ Special judge in probate .matter.
“When a county judge is disqualified to act
In any probate matter, he shall forthwith certify
his disqualli’ioation therein to the Gwernbr,where-
upon the Governor shall appoint some person to act
aa speoial judge in said cast%, who shall sot from
term to term until such disqualification ceases to
axist~ A speoial judge ao appointed shall receive
the same oompansation as is now or may hereafter be
provided by law for rsgular judgea in similar casea.
and the Commissloners~ Court ahalb, at the beginning
of eaah ffacol yeor, inolude in the budget of the
county, a suffirient sum far the payment of the spec-
ial judge or judges appointed by the Governor to
;;~9f0faF``;;~‘f’;,f ;;;;iig f$ge . As ame~ndedActs
The ststutaa providefor the s ecial oountg
ig”,,’ ;;e;gt from tima ta tireuntil auo ii disqualiffoa-
and it naturally fallaws that the purposes
for which tka special oounty judge In this ease was ap-
pointed were terminated upon the present and regular
county judge taking the math 4.S office January 1, 1947,
Now, even if the present oounty judge is disqualified
under the ~atatutes and Constitution, he should notify
the Gbvernor of such disqualification and In turn anoth-
er special county judge would be appointed in his stead,
Therefore, it is the opinion of this Department, In view
ai the faregoing statute, that the speaial county judge
haretofora appalnted by the Obvernor to serve in certain
probate mattars cannot adntixua to sot since the new and
regular eleated aounty judge’ took tha oath of office Jan-
uary 1,~ 1947, and qualified an that data.(Art.1932,V.A.C.S.)
We realize that w4 havr, more or less, dis-
auased the matter g4nrr4ll~ but it is impossible to ren-
der an opinion on a partidar case unless we have all
of the faots at hrnd whioh relate to that particular caaa.
In the event yau bars a partiaalar ont in mind on whiah
you want an opinion, you should submit all the fasts per-
taining to that case and state w&t partioular order the
. . .
,Eon. Weldon B. Davis, Page 8, V-79
county judge is called upon to enter. We con then ren-
der~an opinion whioh will cover your speoific question,
SUMMARY
(1) The present aounty judge of Austin
County is not disquellfled to act in matters of
probat reletlab to the approval of annual ac-
oounttB, reports of sale, eta., ewcpt the approv-
al of final moounto, in which he previously ado
visai ao aoumsl provided that the aubjeot matter
now before him as judge has no direct relatlon-
ship to that matter in which he advlsed as..uoun-
ael. Orgenie A& ff 84, 48 U.S.C.A. 8 636, In re
y&ian~t of Hit&mot&, 20 Rawle 353;~33 Corpus
e 004; Title Quoranty and Sure;iQ;t;pany
VS. Siinkr, 128 Poo. 694; and Ryan vs. ,
138 Pao. 804,
(2) The opsolal rounty u&s appointed under
Artlolo 1
1938, Varnoa*a Asnotm 8d al+11 Sbatutes,
where the ryeha oolul(ry j,Mgo lo dirqPrsLiflod to
aot in prabato matters, aon&& ooatintrs to aat al-
ter tho newly elooted aoMtjy jpdgo quollflao for
the orfioe, in view or the wording of the above
YOare very truly
l%r+~@Allon
Ar8itiaat
,. ElArd)n: jrb
Thls’Opinlon Ooaeidor~,aod Apjwtwod
lnL$mitad aw0205.00