Untitled Texas Attorney General Opinion ( 1949 )

TEIEATI-ORNEYGENERAL OF TEXAS June 21, 1949 Hon. Charles R. Jones senate committee on counties and County Boundaries 51st Legislature Austin, Texas Opinion Bo. V-846. Rer Constitutionality of H. B. 912 authorizing the Coun- ty Judge of counties of 500,000 or more population to appoint a master in chancery to perform pro- bate duties. Dear Senator: You request an opinion a6 to the constitution- ality of House Bill lie. 912 which, omitting the title, the enacting, the emergency, and the severability claus- es, is as follows: "Section 1. This Act shall apply only In counties having a population of five hun- dred thousand (500,000) or more, according to the last preceding Federal Census. "Sec.2. The County Judge in such coun- ties shall have authority to appoint a master In chancery to perform any and all of the du- ties required of the judge of the County Court sitting in probate matters. The order of appointment may authoriee such special mas- ter to do or perform particular acts, or it may in general terms authorize and require the special master to do or perform certain gener- al types of acts In causes and proceedings then pending in said County Court. The master shall keep a memorandumshowing each act per- formed by him, stating the general nature, and at least once each month, shall file a com- plete statement and report with the County HOEI.Charles R. Jones, page 2 (V-846) Judge listing the date of the act Andyits gen- eral nature. All actions, decisions and de- terminations by such special master shall be subject to examination and approval by the County Judge Q Re may approve them separately, or by a general order made once each month, When sny order or action is made by the spe- cial master, It may be appealed from to the same extent and in the same mauner as if it had been made by the County Judge. At aug ttie within thirty (30) days after the making of any order or the taking of any action by such special master, OP if such order or ac- tion is appealed from, then at any time before an appeal bond or application for cePtlorar5 is filed, the County Judge may on his own mo- tion, or on motion of any lntepested party, set aside any actioq of the special master. “Sec. 3. (Provides for compensation and Is not relevant here; it is therefore omitted in the interest of brevity.) ‘See, 4, When the County Judge is absent, or is unable to act in any probate matter pending In the County Court, then the judge of any County Court at Law (without regard to the exact name of such County Court at Law) may sit as judge of the County Court, and may heap any cause, OP any part of any cause, or pro- ceeding pending on the probate docket, or make any order, or sit in any cause in which the County Judge would have powep to act 0 When sitting In any probate matter as County Judge, any judge of any County Court at Law shall be invested with the same power, authority and jurisdiction as the County Judge sitting as the judge of the probate court. When any or- der Is made or entered In the County Court by the judge of any County Court at Law, it shall be presumed that the County Judge was absent or unable to act in the matter in which such order was so madeD In addition to any other remedies provided by law, any person who may consider himself aggrieved by any such order made by a judge of the County Court at Law sitting as e of the County Court, may withln ten days after the date of such Hon. Charles R. Jones, page 3 (V-846) order or proceeding, apply to the County Judge to have such order set aside, modified, vacat- ed or annulled as the circumstances may re- quire; OP, sn appeal may be prosecuted, or nit of certiorari applied for, in the same manner and under the same regulations as is now provided by law in case of orders and de- cisions of judges of the Couuty Court in pro- bate matters.* Section 2 of the Act provides that the County Judge shall have authority to appoint a master in chan- cery to perform any and all of the duties requlred of the Judge of the County Court sitting in probate matters and provit¶es that all actions, decisions and determina- tions by such special master shall be subject to examl- nation and approval by the County Judge. Special provl- sion is made for an appeal from an order of a special master in the same manner as if it had been made by the County Judge. Section 4 declares that when the County Judge is absent or unable to act, the Judge of any County Court at Law may hear any cause or proceeding pending on the probate docket, OP make any order which the County Judge would have power to make, granting unto said Judge of any County Court at Law the same power, authority and jurisdiction as the County Judge sitting as the Judge of a probate court, Because of the holding herein, it is not necessary to pass upon the question as to whether this would constitute the holding of two offices of emol- ument by the same person in violation of Section 40 of Article XVI of the Texas Constitution. Section 16 of Article V of the Constitution of Texas is in part as follows: "The County Court shall have the general jurisdiction of a probate court; they shall probate wills, appofnt guardians of minors, Idiots, lunatics, persons non compos mentls and common drunkards, grant letters testamen- tary and of administration, settle accounts of executors, transact all business appertain- ing to deceased persons, minors, idiots, luna- tics, persons non compos mentis and common drunkards, including the settlement, partition Hon. ChaPlea R. Jones, page 4 (V-846) and distribution of estates of deceased per- sons and to apprentice mlnors, as provicled by law; 0 o -” Section ~22, Article V of the Texas Constitution is as follows: “The Legislature shall have power, by lo- cal or general law, to Increase, dltinish or change the civil and criminal jurisdiction of county tour a; an in cases of any such change of jurisdiction, the Legislature shall also conform the jurlsdlctlon of the other courts to such change.’ (Italics added throughout this opinion.) In State v, Gilletteas Estate, 10 S.P.2d 984 (Comm. App, 1928) the court pointed out that the jurls- diction of the County Court was three-fold: civil, crlm- inal, and probate. Under Section 22 above, the Legis- lature may change the civil and crQnina1 jurisdiction. Rut it may not change the obate jurlsdiction,because of the positive language 16 above and because Section 22 says the Legislature may (only) change the “civil and criminal jurisdiction.” In this regard Judge Critz said: I( 0 D D There is no escape from the con- clusion that It was the intent and express pun pose of section 16 of article 5 of the Constl- tutlon to confer exclusive oroiginal jurisdiction on the county courts. E$%er construction of the several provisions of apt% cle 5 would z%nder section 22 of said %Pticle absolutely meaningless and void. Section 22 of article 5 expressly provides that the Legis- lature has power to illcrease, diminish, or change the civil and criminal juPlsdiction of county cot&s and conform the jurisdiction of the district and other IMerior courts to such change. If the Legislature has the power or authority under section 1 of article 5, which is a general provision, to ipcrease, dllainish, OP change the probate jur4sdiction of the coua- ty court or conform the jurisdiction of the district or other inferior courts to such change, then section 22 would be a meaningless and idle provision0 . Hon. Charles R. Jones, page 5 (V-846) “lie therefore conclude that section 22 of article 5 of the Constitution of this state, In so far a8 the probate jurisdiction of the county court is concerned, speaks exclusively as to the right of the Legislature to increase, change, or diminish the jurisdiction of such courts as prescribed and defined under section 16 of the same article, and that said section 22 speaks exclusively as to the right or power of the Legislature to conform the jurisdiction of the district or other Inferior courts to such change. Section 22 limits the power of the Legislature in this respect to the civil and CrilPinal jurisdiction of the county courta follows that any effort on the part of the Legislature to increase, diminish, or change the robate jurisdiction of the coun- ty court of Rabcounty or to confer such probate jurisdiction on any’other court, would be void, as contrary to the fundamental law of the land. ” Section 2 of said bill provides that aThe County Judge in such counties shall have authority to appoint a master In chancery to perform any and all of the duties requlred.of the judge of the county Court slttinn in D bat tt It th I delegation f th 8 exclugflve &.%d%ion ofa~heo~o``yaJudge in 8iolation of Section 16 of Article V of the Constitution of Texas. Even though the County Judge might not appoint !*a master in chancery to perform all of those acts pro- ‘vided for In Section 2, the mere fact that he is given such power renders the bill Invalid in that regard. The possibility of approval of the master’s action by the County Judge does not affect this conclusion. Furthermore, it is provided that “When any or- der or action is made by the special master, it may be appealed from to the same extent and in the same mauner as if It had been made by the County Judge.” This indi- cates an assumption of jurisdiction by the master and a delegation by the county judge of duties Imposed on him by the Constitution. The Legislature might authorize the County Judge to appoint a master in chancery to as- sist him in finding facts; but the bill in question does not limit the duties of the master to that of a fact . Hon. Charles R. Jones, page 6 (V-846) finder. On the contrary, it authorizes final action by him on such probate matters as shall have been delegated to him by the County Judge aad thus the performance of a duty which is the exclusive prerogative of the County Judge. It is therefore our opinion that In the re- spects mentioned House Bill Ho. 912 is unconstitutional being in violation of Section 16 of Article V of the Constitution of Texas granting exclusive probate juris- diction to the County Court. SUMMARY House Bill Ho. 912, 51st Legislature, which proposes to authorize the County Court to appoiut a master in chancery to perform the probate duties exclusively required of the Judge of the County Court is umonstitu- Mona1 and void, being in violation of Sea- tion 16. Article V of the Constitution of Texas. --State v. Mllette*s Estate, 10 S.U. 26 984 (&mm. APP. 19281 Yours very truly, ATTOFdEXG3I9ERALOFTYXAS B?:bh Assistant / ATTORRE WMRRAL