Untitled Texas Attorney General Opinion

OF TEXAS
Auwrnv. TXXAS 78711
October 29, 1974
The Honorable Henry Wade Opinion No. H- 434
District Attorney
Dallas County Government Center Re: Constitutionality of
Dallas, Texas 75202 1973 amendments to
Section 5. Texas
Dear Mr. Wade: Probate Code
Your request for our opinion asks whether~ a 1973 anmndment to
Section 5 of the Texas Probate Code is constitutional. ‘As amended,
Section 5 of the Probate Code now reads in pertinent part:
The digtrict court shall have original con-
trol and jurisdiction over executors, adminis-
trators, guardians and waids under such
regulations as may be prescribed by law.
In those counties in which there is no
statutory probate court, county court at law
or other statutory court exercising the juris- .’
diction of a probate court, the district court,
concurrently with the county court shall have
the general jurisdiction of a probate court ~ D ~ ~
In those counties where there is a statutory
probate court, county court at law, or other
statut:ory court exercising the juri,sdi.ctions
of a probat.e court,. all applications, petitions
and motions regarding probate, administr’ati,onS,
guardianshi,ps, and mental illness matters shall,
be filed and heard in such courtsi, and the con-
stitutional county court, rather than in the
district courts D D . ~ All courts exercising’
original probate jurisdiction shall have the
power to hear all matters incident to an estate,
including but not limited to, all claims by or
p0 2008
.-
The Honorable Henry Wade, page 2 (H-434)
against an estate, all ‘actions for trial of
title to land incident to an estate and for the
enforcement of liens thereon incident to an
estate and of all actions for trial of the right
of property incident to an estate.
You suggest that provisions in the amendment extending the county
court’s jurisdiction in probate matters to incidental actions concerning
title to land may conflict with Article 5, Section 16 of the ~Texas Consti-
tution which provides in pertinent part:
County Courts: jurisdiction . e .
. . . shall~ not have jurisdiction of suits for
the recovery of land. . . .
The County Court shall have the general juris,-
diction of a Probate Court ; . . .
The effectiveness of the 1973 amendment to the Probate Code (Acts
1973, 63rd Leg., p. 1684, ch. 610) was made contingent upon the adoption
of a proposed amendment to Section 8 of Article 5 of the Constitution.
(Acts 1973, 63rd Leg., po, A-107, S. J.R. No. 26)
That amendment was adopted on November 6, 1973, and, as amended,
Section 8 of Article 5, Texas Constitution, now provides:
The distri.ct court, concurrently with the
county court, shall have the general juris-
diction of a probate court . D D s The Legis-
lature, however, shall have the power, by
local or gene~ral law; Section 16 of Article V
of this Constitution notwithstanding, to
increase, diminish or eliminate the juris-
diction of either the district court or the
county court in probate tiatters, and in
cases of any such change of jurisdiction, the
legislature shall also conform the jurisdiction
of the other courts to such change e D 0 :
(Emphasis added)
p0 2009
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The Honorable Henry Wade, page 3 (H-434)
In determin-ing the answers fo your questions we must be guided by
two well-established principles of our law:
1. All provisions of the Constitution relative,
to the same subject are to be construed together
and interpreted in such a manner as will avoid a
conflict, if possible. Yeary v. Bond, 384 S. W. Zd
376. (Tex. Civ. App. --Amarillo~ 1964, writ ref’d.
n. r* e. ); Railroad Commission v. St. Louise South-
western Railway Company, 443 S.W.2d 71 (Tex.
Civ. App. --Austin 1969, writ ref;d. n. r. e. ).
2. In passing upon the constitutionality of a
statute, there is a presumption of validity. It is
presumed that the Legislature has not acted
unreasonably or arbitrarily. Robinson v. Hill,
507 S.W. 2d. 521 (Tex. 1974).
Because of the exp,ress language of amended Article 5, Section 8,
Texas Constitution, ,.that the Legislature shall have the power to increase,
diminish, or eliminate probate jurisdiction of the district and county
courts, “Section 16 of Article V of this Constitution notwithstanding, I’ we
believe the above guidelines require us to conclude that Section 16 does
not affect the validity of the Probate Code amendment providing that all
courts exercising probate jurisdi,ction may hear all matters incident to
an estate, includi,ng questions of land title,
It is our opinion, therefore, that the 1973 amendment to Section 5 of
the Texas Probate Code is constitutional, and that -all courts, including
county courts, exercising probate jurisdiction may now hear all matters
incident to an estate, including matters of land ti,tle.
Since your other questions were contingent upon a finding that the
probate code amendment was unconstitutional, we need not answer them.
p0 2010
The Honorable Henry Wade, page 4 (H-434)
SUMMARY
The 1973 amendment to Section 5 of the Texas
Probate Code is constitutional.
Very truly yours,
APPROVkD:
v Attorney General .of Texas
-
DAVID M. KENDALL, Chairman
Opinion Committee
p0 2011