Farah v. El Paso National Bank , 1985 Tex. App. LEXIS 6475 ( 1985 )

OPINION

STEPHEN F. PRESLAR, Chief Justice.

This is an appeal from the order of the statutory county court at law dismissing a third-party action against the former attorneys of the estate’s administrator for want of jurisdiction. We reverse.

The suit out of which this third-party action arose was brought by the beneficiaries of the Estate of Frank N. Farah against Appellant William F. Farah, seeking money damages on allegations that as administrator of the estate he violated fiduciary and statutory duties together with numerous other allegations of gross mismanagement of the estate. In the same cause of action, pending in County Court at Law No. Two of El Paso County, Appellant filed his third-party action for indemnity and/or contribution against twelve of his former attorneys and the bank. Appellant’s theory of recovery against the Appel-lee attorneys was that if he were found to have mismanaged the estate, he should be indemnified since he acted upon their legal advice. This third-party action against the attorneys, was dismissed by the probate court, County Court at Law No. Two of El Paso County, for want of jurisdiction. That dismissal is the action appealed from.

Appellant urges that the dismissal is erroneous for two reasons. First, because the claim is within the legislatively expanded jurisdiction of the statutory county court under Article 1970-127b, Tex.Rev. Civ.Stat. (Vernon Pamphlet 1985), and secondly, the claim is incident to the administration of the Estate of Frank N. Farah and jurisdiction is conferred by the Texas Probate Code. We are of the opinion that jurisdiction is conferred by Article 1970-127b, enacted by the legislature in 1983.

That article, applicable only to the county courts at law in El Paso County, provides that except as limited by Subsection 2(a), a county court at law “has the jurisdiction provided by the constitution and law for district courts.” Paragraph (b) then lists five exceptions none of which include the claim or cause of action asserted here. The cause of action alleged is in a subject matter and an amount within the jurisdiction of the district courts and we see no escape from the fact that that jurisdiction now also rests in the county court at law.

Appellee relies on Seay v. Hall, 677 S.W.2d 19 (Tex.1984), contending that the lack of jurisdiction of the probate court found there is controlling of our case. In Seay v. Hall the administratrix brought a wrongful death action and survival action alleging that defendant’s negligence resulted in the decedent’s injuries which eventually caused his death. The suit was brought in the probate court. The Supreme Court held that the probate court did not have jurisdiction over either the survival cause of action or the wrongful death action under the jurisdictional provisions of Tex.Prob.Code Ann. secs. 3, 5 and 5A. The court was construing those sections providing for jurisdiction in matters “appertaining to estates and incident to an estate,” “matters relating to the settlement ... of estates” or “claims by or against an estate.” The court found that a wrongful death and survival action did not come within those definitions and the probate court did not have jurisdiction under them. That case is not applicable to ours for the simple reason that that was a probate court of ordinary jurisdiction and did not have the expanded jurisdiction that our court has under Article 1970-127b. Our court has jurisdiction because the legislature has given it jurisdiction — not because of some court action construing the Probate Code or by any other judicial opinion. The legislature has spoken. The Probate Code exists by virtue of a legislative enactment, likewise jurisdiction of the county court at law in El Paso is by a legislative enactment. That jurisdiction is clearly fixed by the legislative enactment of Article 1970-127b. A decision by the Supreme Court construing the Probate Code has nothing to do with Article 1970-127b. The court did say something in Seay v. Hall which is applicable here:

While this court may properly write in areas traditionally reserved to the judicial branch of government, it would be usurpation of our powers to add language to a law where the legislature has refrained. Intrusion into the legislative arena without regard for traditional constitutional and legal safeguards of legislative power would violate a fundamental judicial rule. Courts should carefully search out a statute’s intent, giving full effect to all of its terms. “But they must find its intent in its language and not elsewhere. They are not the lawmaking body.”

And so it is in our case. Jurisdiction of the county court at law rests in legislation and not in a judicial decision and we are in no position to change it. The trial court by its dismissal has denied the jurisdiction given it by the legislature. It follows that the trial court was in error in dismissing the cause of action for want of jurisdiction.

We reverse the judgment and order the reinstatement of the third-party action.