Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

September 24,2003

The Honorable Mike Stafford Opinion No. GA-01 05
Harris County Attorney
1019 Congress, 15th floor Re: Authority of the presiding judge of the
Houston, Texas 77002-l 700 statutory probate courts to adopt statewide local
rules of administration for the statutory probate
courts (RQ-002%GA)

Dear Mr. Stafford:

You ask about the authority of the presiding judge of the statutory probate courts to adopt
statewide local rules of administration for the statutory probate courts.*

Chapter 25 of the Government Code prescribes the jurisdiction, powers, and duties of the
statutory county courts. See TEX. GOV’T CODE ANN. $0 25.0003 (jurisdiction); 25.0004 (powers,
duties, immunities, and privileges) (Vernon Supp. 2003). Subchapter B of chapter 25 addresses
statutory probate courts, a special category of statutory county courts. The term “statutory probate
court” is defined as “a statutory court designated as a statutory probate court under Chapter 25,
Government Code.” TEX. PROB. CODE ANN. 5 3(ii) (Vernon 2003). Section 25.0021(b) of the
Government Code provides:

A statutory probate court as that term is defined in Section 3(ii), Texas Probate Code,
has:

(1) the general jurisdiction of a probate court as provided by
the Texas Probate Code; and

(2) the jurisdiction provided by law for a county court to hear
and determine actions, cases, matters, or proceedings instituted under:

(A) Section 166.046, 192.027, 193.007,
552.015, 552.019, 711.004, or 714.003, Health and
Safety Code;

‘See Letter fromHonorable Mike Stafford, Harris County Attorney, to Honorable Greg Abbott, Texas Attorney
General (Mar. 12, 2003) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Mike Stafford - Page 2 (GA-0105)

(B) Chapter 462, Health and Safety Code; or

(C) Subtitle C or D, Title 7, Health and Safety
Code.

TEX. GOV’T CODE ANN. 5 25.0021(b) (Vernon Supp. 2003).

Section 25.0022(b) of the Government Code directs “[tlhe judges of the statutory probate
courts” to “elect from their number a presiding judge of the statutory probate courts.” Id.
5 25.0022(b). “The presiding judge serves a four-year term from the date of qualification as
the presiding judge.” Id. Subsection (c) authorizes “[tlhe presiding judge” to “perform the acts
necessary to carry out this section and to improve the management of the statutory probate courts and
the administration of justice.” Id. 8 25.0022(c). Subsection (d) prescribes eight duties of the
presiding judge. The two most relevant to the present inquiry are the following:

(1) ensure the promulgation of local rules of administration in
accordance with policies and guidelines set by the supreme court;

(3) perform a duty of a local administrative statutory probate
court judge if the local administrative judge does not perform that
duty;

Id. 8 25.0022(d)(l), (3).

Subsections (c) and (d) were adopted by the Seventy-seventh Texas Legislature, with an
effective date of September 1,200l. See Act of May 28,2001,77th Leg., R.S., ch. 820,200l Tex.
Gen. Laws 1606, 1607. On September 4, 2001, the Honorable Guy Herman, at that time the
presiding judge of the statutory probate courts, issued Administrative Order 2001-l 1. See
Administrative Order 200 1- 11 (“Exhibit A,” attached to Request Letter, supra note 1). That order
adopted four “rules of administration” to “govern the operation of the statutory probate courts of
Texas, effective October 1,200l.” Id. at 1. Rule 1 provides that “[elach county that has a statutory
probate court shall have a local administrative statutory probate court judge.” Id. Rule 2 prescribes
the duties of the local administrative statutory probate court judge. See id. at l-2.*

*A local administrative statutory probate court judge, for the statutory probate courts for which the judge serves
as local administrative judge, shall:

(1) implement and execute the local rules of administration, including the
assignment, docketing, transfer, and hearing of cases;

(2) promulgate local rules of administration if the other statutory probate
court judges do not act by a majority vote;

(continued.. .)
The Honorable Mike Stafford - Page 3 (GA-0105)

Rule 3 directs that “[tlhe statutory probate court judges in each county shall, by majority vote,
adopt local rules of administration.” Id. at 2. Rule 3 also requires that “[tlhe rules must provide for:
(1) the assignment, docketing, transfer, and hearing of all cases, subject to jurisdictional limitations
of the statutory probate courts and local statutes governing the filing of cases and proceedings; and
(2) fair and equitable division of caseloads taking into consideration local statutes governing same.”
Id. In addition, “[tlhe rules may: (1) designate courts responsible for certain matters; (2) provide
for judicial vacation, sick leave, attendance at educational programs, and similar matters; and
(3) provide for any other matter necessary to carry out these rules or to improve the administration
and management of the court system and its auxiliary services.” Id. Finally, Rule 3 declares that,
“[wlhen a case is transferred from one court to another as provided by this section, all processes,
writs, bonds, recognizances, or other obligations issued from the transferring court are returnable to
the court to which the case is transferred as if originally issued by that court.” Id. Rule 4 prescribes
a number of mandatory and permissive rules regarding the filing and hearing of cases. See id. at 2-3.
You ask whether the presiding judge of the statutory probate courts was authorized to promulgate
these rules.

Subsection (c) of section 25.0022 of the Government Code authorizes the presiding judge
to “perform the acts necessary to carry out this section and to improve the management of the
statutory probate courts and the administration of justice.” TEX. GOV’T CODE ANN. fj 25.0022(c)
(Vernon Supp. 2003). Subdivisions (1) and (3) of subsection (d), in turn, require the presiding judge
of the statutory probate courts to “ensure the promulgation of local rules of administration,” and to
“perform a duty of a local administrative statutory probate court judge if the local administrative
judge does not perform that duty.” Id. § 25.0022(d)(l), (3).

*(. ..continued)
(3) recommend to the Presiding Judge any needs for assignment from
outside the county to dispose of court caseloads;

(4) supervise the expeditious movement of court caseloads, subject to
local, regional, and state rules of administration;

(5) provide to the office of court administration or the Presiding Judge any
requested statistical and management information;

(6) set the hours and places for holding court in the county;

(7) supervise the employment and performance of nonjudicial personnel,
if any, that are employed to assist in local administration;

(8) supervise the budget and fiscal matters of the local statutory probate
courts if there is a uniform statutory probate court budget process;

(9) coordinate and cooperate with any other local administrative court
judge in the county in the assignment of cases in the courts’ concurrent jurisdiction
for the efficient operation of the court system and the effective administration of
justice; and

(10) perform other duties as may be directed by the Presiding Judge.

Administrative Order 2001-l 1, at l-2 (“Exhibit A,” attached to Request Letter, supra note 1).
The Honorable Mike Stafford - Page 4 (GA-0105)

We must presume that the legislature does not enact meaningless provisions and that
subsections (c), (d)(l), and (d)(3) of section 25.0022 have an ascertainable and definite meaning.
See Liberty i&t. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482,485 (Tex. 1998) (“[Wle
do not lightly presume that the Legislature may have done a useless act.“); Barr v. Bernhard,
562 S.W.2d 844,849 (Tex. 1978) (“[IIt is well established that every word in a statute is presumed
to have been used for a purpose and that the Legislature did not intend to do a useless thing by
putting a meaningless provision in a statute.“) (citations omitted). See also TEX. GOV’T CODEANN.
5 3 11.021 (Vernon 1998) (“[I] n enacting a statute, it is presumed that,” inter alia, “a result feasible
of execution is intended.“).

In the situation in question, the presiding judge of the statutory probate courts, in the absence
of statutory provisions authorizing probate courts to adopt local rules of administration, and
provisions that create the position of local administrative statutory probate court judge, has attempted
to fulfill the statutory mandate of subsection (c) and subdivisions (1) and (3) of subsection (d) of
section 25.0022 of the Government Code by himself promulgating local rules of administration. No
statute prohibits his doing so. Moreover, the four referenced rules fall within a strict reading of the
broad language of subsections (c), d(l), and d(3). By promulgating these four rules, the presiding
judge has “ensur[ed] the promulgation of local rules of administration”; he has “perform[ed] a duty
of a local administrative statutory probate court judge”; and most significantly, he has “perform[ed]
the acts necessary to carry out this section and to improve the management of the statutory probate
courts and the administration of justice.” Id. 8 25.0022(c), (d)(l), (3) (Vernon Supp. 2003). We
conclude that the presiding judge of the statutory probate courts was and is authorized to adopt
statewide local rules of administration for the statutory probate courts.
The Honorable Mike Stafford - Page 5 (GA-0105)

SUMMARY

The presiding judge of the statutory probate courts was and is
authorized to promulgate statewide local rules of administration for
the statutory probate courts.

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee