TEE ATTORNEY GENERAL
OF TEXAS
March 8, 1988
Honorable Fred G. Rodriguez Opinion No. JM-870
Criminal District Attorney
Bexar County Courthouse Re:. Jurisdiction of the
San Antonio, Texas 78205 statutory probate courts of
Bexar County to adjudicate
cases under the Mental
Health Code, in light of
recent amendments to former
article 1970-301e.2, V.T.C.S.
(RQ-1248)
Dear Mr. Rodriguez:
You ask:
1. Whether amendments to Title 41 of the
Texas Civil Statutes, relating to County
courts, the Texas Government Code and the
Texas Mental Health Code, effective
September 1, 1987, have divested the
statutory probate courts of Bexar county,
Texas of jurisdicti,on to hear and adjudicate
proceedings brought pursuant to the Texas
Mental Health Code.
2. If the statutory probate courts of
Bexar County, Texas, do have jurisdiction
over mental health proceedings, whether such
courts have been divested of statutory
authority to docket such proceedings.
You give as the reason for concern about the courts'
jurisdiction the repeal of article 1970-301e.2, V.T.C.S.,
Acts 1987, 70th Leg., ch. 148, 54.02(a), at 1389,
effective September 1, 1987.
Section 18(a) of the repealed statute provided in
pertinent part:
The Probate Court No. 1 of Bexar County and
the Probate Court No. 2 of Bexar County have
P. 4216
Honorable Fred G. Rodriguez - Page 2 (JM-870)
general jurisdiction, concurrent with the
jurisdiction of the county court, to hear
and determine all actions, cases, matters,
or proceedings instituted under:
(1) The Texas Mental Health Code
(Article 5547-1, et seq., Vernon's Texas
Civil Statutes)[.]
Acts 1983, 68th Leg., ch. 355, 918(a), at 1922.
You state that a question has arisen as to whether
Probate Court No. 1 of Bexar County and Probate Court No.
2 of Bexar County have jurisdiction to hear and adjudicate
proceedings brought pursuant to article 5547, V.T.C.S.
The Texas Legislative Council's Revisor's Note on
chapter 25, subchapter B of the Government Code, at page
68, makes the following comment relative to the repeal of
section 18(a) by the 70th Legislature:
The revised law omits Section 18(a) of
Article 1970-3Ole.2 relating to additional
jurisdiction of a statutory probate court
because the provisions are unnecessary.
Article 5547-10, Texas Mental Health Code,
provides that a court having probate juris-
diction has jurisdiction over matters
contained in .. the Texas Mental Health
Code. . . .
Article 5547-10, V.T.C.S. provides:
The term 'county court' is.used in this
code [mental health] to mean the 'probate
court' or the court having probate juris-
diction, and the term 'county judge' means
the judge of such court. The county court
shall be open at all times for proceedings
under this code.
Article 5547-40, V.T.C.S. states:
A proceeding pursuant to this subchapter
[Proceedings for court-ordered mental health
services] shall be held in the statutory or
constitutional court of the county exercis-
ing the jurisdiction of a probate court in
mental illness matters.
Pa 4217
Honorable Fred G. Rodriguez - Page 3 (~~-870)
In Parsons v. State, 677 S.W.2d 786, 789 (Tex. App. -
San Antonio 1984, no writ) the court rejected appellant's
point of error that the probate court was without juris-
diction to hear a case in which appellant was adjudged to
be mentally ill. The court held: "Jurisdiction is
expressly conferred by article 5547-40."
Section 25.0171 of the Government Code, effective
September 1, 1987, provides in relevant part:
(b) Bexar County has the following
statutory probate courts:
(1) Probate Court No. 1 of Bexar County,
Texas; and
(2) Probate Court No. 2 of Bexar County,
Texas.
Section 25.0021 of the Government Code, effective
September 1, 1987, addresses the matter of the
jurisdiction of a statutory probate court as follows:
A statutory probate court as that term is
defined in. Section 3(ii), Texas Probate
Code, has the general jurisdiction of a pro-
bate court as provided by the Texas Probate
Code. .
Section 5(c) of the Probate Code provides in
pertinent part, as follows:
(c) In those counties where there is a
statutory probate court, county court at
law, or other statutory court exercising the
jurisdiction of a probate court, all appli-
cations, petitions and motions regarding
probate, administrations, guardianships,
limited guardianships, and mental illness
matters shall be filed and heard in such
courts and the constitutional county court,
rather than in the district courts, unless
otherwise provided by the legislature, and
the judges of such courts may hear any of
such matters sitting for the judge of any
such courts. (Emphasis added.)
Statutory Probate Courts of Bexar County have juris-
diction to hear and adjudicate proceedings brought
pursuant to the Mental Health Code.
P. 4218
Honorable Fred G. Rodriguez - Page 4 (JR-870) ,
In your second question you state that a question has
been raised as to the authority of the statutory probate
courts of Bexar County to docket mental health proceed-
ings. As was the case in the first question, the basis
for such position appears to be the repeal of article
1970-301e.2 by the 70th Legislature. Section 18(b) of the
statute before the effective date of its repeal provided
as follows:
(b) All matters for which the courts have
jurisdiction under Subsection (a) of this
section filed with the county clerk, regard-
less of the court or judge to which the
matter or proceeding is addressed, shall be
filed by the clerk alternately in Probate
Court No. 1 of Bexar County and Probate
Court No. 2 of Bexar County. Every odd-
numbered case shall be filed with Probate
Court No. 1 of Bexar County and every even-
numbered case shall be filed with Probate
Court No. 2 of Bexar County, but the judges
of the statutory probate courts and the
county judge may determine another manner
for filing cases. The clerk shall keep a
separate docket for each court.
&g Acts 1983, 68th Leg., ch. 355, 518(b), at 1922.
The Texas Legislative Council's Revisor's Note on
chapter 25, subchapter B of the Government Code, at page
67, states:
The revised law omits language in Sec-
tions 17(b), 18 (b) , and 19(b) of Article
1970-301e.2 because specific filing and
docketing requirements were impliedly
repealed by the Court Administration Act
(Article 200a-1, Vernon's Texas Civil
Statutes). Section 5.003(b)(l) of that Act
requires the district and county court
judges in each county to adopt rules
providing for the assignment, docketing,
transfer, and hearing of cases.
The Court Administration Act is now recodified in the
Government Code and the above provision relating to
docketing of cases is found in section 74.093 of that
code. It provides in pertinent part:
P. 4219
Honorable Fred G. Rodriguez - Page 5 (JM-870)
(a) The district and statutory county
court judges in each county shall, by
majority votes, adopt local rules of admin-
istration.
(b) The rules must provide for:
(1) assignment, docketing, transfer,
and hearing of all cases, subject to jur-
isdictional limitations of the district
courts and statutory county courts.
Gov't Code 974.093. Thus, the district and statutory
county court judges *lshalllladopt rules providing for the
docketing of mental health proceedings in the statutory
probate courts.
The statutory probate courts of Bexar County have
jurisdiction to hear and adjudicate proceedings brought
pursuant to the Texas Mental Health Code.
SUMMARY
The statutory probate courts of Bexar
County have jurisdiction to hear and adjudi-
cate proceedings brought pursuant to the
Texas Mental Health Code. The statutory
probate courts of Bexar County have not been
divested of statutory authority to docket
cases.
J A&
Very truly yo ,
A
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
P- 4220