May 19, 1975
The Honorable Henry Wade Opinion No. H- 609
District Attorney
Sixth Floor, Records Buildihg Re: Whether Domestic Relations
Dallas, Texas 75202 Judges may use salaried employees
hired by the commissioners court
for appointment as masters in
chancery?
Dear Mr. Wade:
You advise that because of extreme congestion existing in the
domestic relations courts of Dallas County, the Dallas County Commissioners
Court has been asked to authorize and fund a full-time, salaried employee for
each domestic relations court to be “available ” for appointment by that court
as a master in chancery under Rule 171 of the Texas Rules of Civil Procedure.
A proposed Commissioners Court order which would do so has been supplied
us. It provides that the employee is to be designated a “Master” and be
under the employment and direction of the County Clerk. According to the
proposed order, his functions would include:
. . acting as a fact-finder in:
a) uncontested divorces, including waivers, agreed
matters, defaults, and publications
b) temporary matters including injunctions, temporary
alimony, temporary child support, and temporary use
of properties
c) after-judgment matters, including contempt, visitation
matters, and modification matters.
You ask:
Under the facts stated, would it be proper&r a Judge
of a Domestic Relations Court to use a salaried employee
hired by the Commissioners’ Court for appointment as a
master in chancery in future cases to perform the functions
permitted by Rule 171, T. R. C. P. ?
p. 2696
The Honorable Henry Wade - Page 2 (H-609)
The Texas Rules of Civil Procedure have been promulgated by the
Texas Supreme Court pursuant to art,icle 1731a, V. T. C. S. They have the
force of law. Missouri Pacific Railroad Company v. Cross, 501 S. W. 2d
868 (Tex. sup. 1973).
Rule 171 of the Texas Rules of Civil Procedure reads:
The court may, in exceptional cases, for good cause
appoint a, master in chancery, who shall be a citizen
of this State, and not an attorney for either party to the
action, nor related to either party, who shall perform
all of the duties required of him by the court, and shall
be under horders of the court, and have such power as the
master of chancery has in a court of equity.
The order of reference to the master may specify or
limit his powers, and may direct him to report only upon
particular issues, or to do or perform particular acts, or
to receive and report evidence only and may fix the time
and place for beginning and closing the hearings, and for
the filing of the master’s report. Subject to the limitations
and specifications stated in the order, the master has and
shall exercisk the power to regulate all proceedings in
every hearing before him and to do all acts and take all
measures necessary oi proper for the efficient performance
of his duties under the order. He may require the
production before him of evidence upon all matters embraced
in the reference, including the production of books, papers,
vouchers, documents and other writings applicable thereto.
He may rule upon the admissibility of evidence, unless
otherwise directed by the order of reference and has the
authority to put witnesses on oath, and may, himself,
examine them, and may call the parties to the action and
examine them upon oath. When a party so requests, the
master shall make a record of the evidence offered and
excluded in the same manner as provided for a court
sitting in the trial of a case.
The clerk of the court shall forthwith furnish the master
with a copy of the order of reference.
The parties may procure the attendance of witnesses before
the master by the issuance and service of process as provided
by law and these rules.
pm 2697
The Honorable Henry Wade - Page 3 (H-609)
The court may confirm, modify, correct, reject,
reverse or recommit the report, after it is filed,
as the court may deem proper and necessary in the
particular circumstances of the case. The court shall
award reasonable compensation to such master to be taxed
as costs of suit. (Emphasis added).
Your letter advises:
Although the salary of the employee assigned to a
particular Domestic Relations Court would be paid in
full by the County of Dallas, an appropriate order of
reference to the master would be issued by the court
for each case in which the service of a master is
required. It is hoped by the Courts and Bar Association
Members that extensive use of masters can ‘be made to
assist in the reduction of the large number of cases now
pending on the dockets. Changes in provisions of the
Family Code have greatly increased the work load of
the Judges~and Members of the Bar. The thousands of
cases pending on the dockets have created a situation which
almost denies access to the courts by litigants. More
often than not, the health, welfare, and safety of children
are directly involved and the delays caused by clogged
dockets are sometimes detrimental.
. . . . .
As a practical matter, it would seem that the great
need of the litigants, and their dependents, for speedy.
determinations compel the use of masters. It is submitted
that the pressing needs of the litigants are so great that
every case falls within the requirements of the Rule as an
“exceptional” one and that “good cause” for the appointment
of
The appointment by a court of a qualified county employee to act in
some capacity as an officer of the court for the duration of a particular case
does not necessarily create dual employment problems or conflict of interest
problems. SeeAttorney General Letter Advisory 93 (1975). We need not
decide here whether the repeated appointment of a part:icular county employee
to serve as a master a chancery in every case coming before a domestic
relations court would enroluter such problems, ‘Ve !!O !?OY r?Iirh those *ssues
because we believe Rule 171 requirements of “exceptlonai~ case” and “good
.
The Honorable Henry Wade - Page 4 (H-609)
cause” prevent such a practice. See Cregler v. Hyde, 280 S. W. Zd 783
(Tex. Civ. App. -- Waco 1955 writref., n. r. e. ).
In Ex Parte Odom, 271 S. W. 2d 796 (Tex. Sup. 1954), the Texas
Supreme Court noted that Texas Rule 171 was based in part on Rule 53 of the
Federal Rules of Civil Procedure. The United States Supreme Court has
said that court congestion is not in itself such an exceptional circumstance
as to warrant the reference of trial matters to a master under the federal
rule. La Buy v. Howes Leather Co., 352 U.S. 249 (1957). Cf., L. A.
Brush Corp. v. James, 272 U.S. 701 (192.7). For examples of cases which
Texas appellate courts have indicated fall into the “exceptional case” category,
see Housing Authorit 1, 325 S. W. 2d 880 (Tex.
civ. App. Strickland Transportation Co.
v. Navajo Frkight Lines, Inc., 387 S. W. 2d 720 (Tex. Civ. App. -- Dallas
1964, no writ).
Masters have been employed by courts in domestic relations matters.
See Roberson v. Roberson, 42~0 S. W. Zd 495 (Tex. Civ. App. -- Houston
mh Dist. J 1967, writ ref., n. r. e. ). But when so employed, they are
employed by the court which referred the matter to them and the award or
refusal to them of fees to be taxed as costs is within the sound discretion of
the referring court. Roberson v. Roberson, supra. Whether a master shall
be appointed, and if so, who shall be appointed and what his duties shall be,
and what compensation he shall receive therefor, are all matters within the
discretion of the trial courts, as guided by Rule 171. Huber v. Buder, 434
S. W. 2d 177 (Tex. Civ. App. -- Ft. Worth 1968, writ ref., n. r. e. ). The
Commissioners Court order could not displace such authority.
In Cregler v. Hyde, supra, the trial court upon its own motion
appointed a master in chancery to hear all issues and to file findings of fact
thereon in a suit to set aside a trustee’s deed for land. The plaintiff objected
and appealed. The Court of Civil Appeals observed that a trial court is not
authorized under Rule 171 to appoint a master in chancery in other than
x+xceptional cases, and not then except for good cause.
We have no doubt that the situation which the proposed commissioners
court order is designed to meet is one demanding a solution, but we do not
believe Rule 171 can accomodate the plan proposed. See Guittard, Court
Reform Texas Style. 21 S. W. L. J. 451, 485 (1967); Attorney Genera~nion
v-846(1949); Morrow v. Corbin, 62 S. W. 2d 641 (Tex. Sup. 1933).
p. 2699
. *
*
I
The Honorable Henry Wade - Page 5 (H-609)
SUMMARY
Rule 171, Texas Rules of Civil Procedure, authorizes
the appointment of a master in chancery by domestic
relations courts but oniy in exceptional cases for good
cause. Court congestion does not in itself make every
case an exceptional case nor furnish good cause for
such an appointment.
/ / Att orney General of Texas
v
-PROVED:
Opinion Committee
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