Schattman v. Tarrant County , 1981 Tex. App. LEXIS 3781 ( 1981 )

OPINION

MASSEY, Chief Justice.

Suit was one for declaratory judgment filed by the Hon. Michael D. Schattman, Judge of the County Court at Law No. 2 of Tarrant County, Texas. Sought to be established as against Tarrant County and its Commissioners’ Court was the right of Schattman to have it declared that he was a judge of a probate court under pertinent statutory provisions and as such entitled to have his salary fixed at not less than the total salary, including supplements, received by the judges of the district courts of Tarrant County.

By his statutory interpretation, the judge trying the case denied relief to Schattman, unaided by any evidence bearing upon the historical development of “statutory probate courts” having the probate jurisdiction which in earlier times was lodged in the constitutional county courts (as is still the case in Texas counties), unaided by evidence bearing upon “usage and custom” in the exercise of that jurisdiction, and unaided by evidence which might have been available bearing upon “evil” developed as existent in the counties, particularly Tarrant, where there was arisen need and occasion for additional courts with probate jurisdiction. From the judgment denying relief Schatt-man has appealed.

We affirm.

In statutory construction it is the duty of a court to look diligently for the intention of the Legislature, keeping in view at all times the old law, the evil and the remedy. Tex.Rev.Civ.Stat.Ann. art. 10 (1969) “General Rules”. Circumstances attending the passage of a statute are significant, and, as will hereafter be noticed the same Legislature which passed the law of which Judge Schattman claims benefit amended another law to show its intent that such benefit could not be claimed by judges similarly situated. See 53 Tex. Jur.2d Statutes sec. 162 “(Circumstances Indicating Legislative Intention) — In general” (1964).

As will be observed in the discussion to follow, the Texas Probate Code, enacted in 1955 by the 54th Legislature, contemplated the investiture of probate jurisdiction in only the county courts and “a court especially created and organized for the sole purpose of exercising probate jurisdiction”. (Emphasis added.) (Appellate jurisdiction and general control over the court in all probate matters, etc., was vested in the district courts.) Subsequently created by legislative enactment were probate courts, one of which was the single “statutory probate court” in Tarrant County, especially created and organized for the sole purpose of exercising probate jurisdiction (and none other), concurrent with like jurisdiction theretofore existent in its constitutional county court. Tex.Rev.Civ.Stat.Ann. art. 1970-345 “Tarrant County Probate Court” (1964). In 1955 there was no county court at law in which any probate jurisdiction was vested. That this might be true at a later time was obviously not within legislative contemplation.

Thereafter, in 1977, the Texas 65th Legislature enacted legislation — effective January 1, 1979 — in the creation of County Court at Law No. 2 of Tarrant County. (Of this court Judge Schattman has been presiding judge since its inception.) Tex.Rev. Civ.Stat.Ann. art. 1970-62.2 “County Court at Law No. 2 of Tarrant County” (Supp. 1980). In addition to the jurisdiction ordinarily conferred upon courts of this character by the statutes creating them, was specific further and additional jurisdiction conferred upon the Tarrant court by the following:

“Sec. 2. (b) The County Court at Law No. 2 of Tarrant County has the general jurisdiction of a probate court within the limits of Tarrant County, concurrent with the jurisdiction of the County Court of Tarrant County and the Probate Court of Tarrant County in such matters and proceedings. ...”

Perforce that already discussed it is evident that from and after January 1, 1979, Tarrant County had a single court “created and organized for the sole purpose of exercising probate jurisdiction”, being the Probate Court of Tarrant County; had another court given probate jurisdiction along with the jurisdiction customary to courts bearing similar name and title, being the County Court at Law No. 2 of Tarrant County; and continued to have the third, the constitutional County Court presided over by the County Judge.

We emphasize that we consider it to be of material importance the legislative enactments in 1979 by the 66th Legislature included enactment of that statute relative to salaries of the judges of the probate courts, and an amendment of the Texas Probate Code clarifying meaning of the term “statutory probate court”. By statute was provided that the salary of “each of the judges of the probate courts” in counties having a population of not less than 700,000 should be fixed by the commissioners courts of counties in which there were such courts “at not less than the total annual salary, including supplements, received by the judges of the district courts in such counties.” Tex.Rev.Civ.Stat.Ann. art. 3883Í-3 “Compensation of judges of probate court; counties of not less than 700,000” (Supp. 1980).

By an amendment of existent law “statutory probate court” was defined. Tex.Prob. Code Ann. sec. 3 “Definition and Use of Terms” (1980). By this amendment subsection (ii) was added, providing as follows:

“(ii) ‘Statutory probate court’ refers to any statutory court presently in existence or created after the passage of this Act, the jurisdiction of which is limited by statute to the general jurisdiction of a probate court, and such courts whose statutorily designated name contains the word ‘probate’. County courts at law exercising probate jurisdiction are not statutory probate courts under this Code unless their statutorily designated name includes the word ‘probate’.” (Emphasis added.)

From its beginning the Probate Code contained in subsections (e) and (g) of sec. 3 the provisions (for purposes of the code) as follows:

“(e) ‘County Court’ and ‘Probate Court’ are synonymous terms and denote county courts in the exercise of their probate jurisdiction, courts created by statute and authorized to exercise original probate jurisdiction, and district courts exercising probate jurisdiction in contested matters.” (Emphasis added.)

“(g) ‘Court’ denotes and includes both a county court in the exercise of its probate jurisdiction, a court created by statute and authorized to exercise original probate jurisdiction, or a district court exercising original probate jurisdiction in contested matters.” (Emphasis added.)

The occasion for Judge Schattman’s concern over the amount of his compensation arose because of action taken by the 66th Legislature in 1979 in new Art. 3883i-3. Clearly the Legislature intended to and fixed the salary of the judge presiding over a “statutory probate court”, where one existed in a county having population above 700,000 or might thereafter be created in such a heavily populated county. However, in the amendment of the Probate Code, sec. 3, that same Legislature provided thát “County Courts at Law exercising probate jurisdiction are not statutory probate courts under this Code, . . . . ” (Art. 3883Í-3 is not under the Code, though its provisions are necessarily related thereto.) The Legislature is considered to have known it was also amending sec. 3 of the Probate Code when it passed Art. 3883Í-3, and the same article when it amended the Code.

In any event we hold the legislative intent plain; that of the judges who might preside over courts created by legislative enactment to exercise probate jurisdiction, whether created “for the sole purpose of exercising probate jurisdiction” or created for purposes of exercising a greater and enlarged jurisdiction, only those presiding over regular courts (to which they were elected or selected to preside) which contained as part of their designated name the word “probate” were to be given the compensation benefits provided by Art. 3883Í-3, to-wit: salaries “at not less than the total annual salary, including supplements, received by the judges of the district courts in such counties, . . .. ” The County Court at Law No. 2 of Tarrant County is not such a court. Therefore, Judge Schattman is not entitled to claim benefit by Art. 3883Í-3.

Affirmed.