Honorable Joe Carroll, Jr. Opinion No. M-922
County Attorney of Bell County
Bell County Courthouse Re: Court having jurisdiction of
Belton, Texas 76513 Eminent Domain Proceedings
under Senate Bill 240, 62nd
Legislature, Regular Session,
Dear Mr. Carroll: 1971 -- Bell County.
In response to your opinion request of June 22, 1971, we shall
first direct attention to your question concerning eminent domain juris-
diction in Bell County, Texas.
Article 1970-350*, credted the County Court of Law of Bell County;
it provides, in part:
“Section l(a). On the effective date of this Act
(as provided in Sktion 6), the County Court at Law of
Bell County is created.
“(b) The County Court at Law has the same juris-
diction over all causes and proceedings, civil, criminal,
and probate, original and appellate, prescribed by law for
county courts, and its jurisdiction is concurrent with that
of the County Court of Bell County. (Emphasis added. )
II II
. . . .
Clearly, prior to Senate Bill 240, the County Court at Law of Bell
County had the same jurisdiction as prescribed by law for County Courts
generally, and its jurisdiction was concurrent with the County Court of Bell
* All references to Articles are to Vernon’s Civil Statutes unless otherwise
stated.
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Honorable Joe Carroll, Jr., page 2 (M-922)
county. This included jurisdiction in eminent domain cases. Shannon v.
Tarrant County, 99 S. W. 2d 964 (Tex. Civ. App. 1937) reversed on other
grounds, 129 Tex. 264, 104 S. W. 2d 4; City of Dallas v. Johnson, 54 S. W. 2d
1024 (Tex. Civ. App. 1932, no writ); Miers v. Housihg Authority of City of _
Dallas, 266 S. W. 2d 487 (Tex. Civ. App. 1954), certified question on other
matters answered 153 Tex. 236, 266 S. W. 2d 842, answer to certified question
conformed to 268 S. W. 2d 325 (Tex. Civ. App. 1954, error ref. n. r. e. )
Therefore, on June 9, 1971, when Governor Smith signed Senate Bill
240, and it became law, the County Court at Law of Bell County already had
jurisdiction of eminent domain proceedings.
Senate Bill 240, Section 3, reads:
“In all counties in which there is one or more
county courts at law with jurisdiction in eminent domain
cases, the party desiring to initiate condemnation pro-
ceedings shall, except where otherwise specifically pro-
vided by law, file its petition with the judge of the county
court at law; and objections to the award of the special
commissioners shall be filed in that county court at law. “(Emphasis added. )
It is our opinion that petitions in eminent domain matters in Bell
County should be filed with the Judge of the County Court at Law.
In a supplementary letter dated July 14, 1971, you pose the following
question:
“Where does jurisdiction lay with regard to condem-
nation proceedings when there is a vacancy in the County
Court at Law judgeship? ”
This question can be answered by referring to the statute that creates
the County Court at Law of Bell County, Article 1970-350, and Senate Bill 240.
When read together, these statutes establish jurisdiction in the County Court
at Law of Bell County. We note that Section 1 of Senate Bill 240 deprives the
County Courts of all jurisdiction in eminent domain cases except those pro-
ceedings pending on the effective date of the Act. (Section 6, Senate Bill 240. )
It is our opinion that since jurisdiction is vested in the County Court at
Law of Bell County that all petitions in eminent domain shall be filed with the
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Honorable Joe Carroll, Jr., page 3 (M-9221
Judge of the County Court at Law of Bell County, and that objections, if any,
to the award. shall be filed in that Court.
Articles 3264 and 3266 prescribe the method of filing a condemna-
tion proceeding. They provide, in part, that the petition in condemnation
shall be filed with the judge of the county court, (now the judge of the county
court at law by virtue of Senate Bill 240, quoted above. ) It is our opinion
that if there is a vacancy in the judgeship of the county court at law, then
there is no judge with whom a condemnation proceeding can be initiated and
with whom a condemnation petition can be filed. Section 3 of Senate Bill 240
requires condemnation proceedings to be filed with the Judge of the County
Court at Law.
The second question posed by your request is,
“Would the County Cou~rt at Law Judge of Bell
County, Texas, be allowed by Article 1970-350, V. A. T. S. ,
to sit as a Probate Judge of Bell County, Texas, with full
powers as vested to the County Judge by the Constitution
of Texas and Section 4 of the Probate Code?”
Article V. Section 29, Texas Constitution, makes certain provisions
relative to the jurisdiction of the County Court in probate matters; it reads
as follows:
“The County Court shall hold at least four terms
for both civil and criminal business annually, as may be
provided by the Legislature, or by the Commissioners’
Court of the county under authority of law, and such other
terms each year as may be fixed by the Commissioners’
Court; provided, the Commissioners’ Court of any county
having fixed the times and number of terms of the County
Court, shall not change the same again until the expiration
of one year. Said Court shall dispose of probate business
either in term time or vacation, under such regulation as
may be prescribed by law. Prosecutions may be com-
menced in said courts in such manner as is or may be pro-
vided by law, and a jury therein shall consist of six men.
Until otherwise provided, the terms of the County Court
shall be held on the first Mondays in February, May,
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Honorable Joe Carroll, Jr., page 4 (M-922)
August and November, and may remain in session three
weeks. ” (Emphasis added. )
The general statute relating to jurisdiction of the County Court in
probate matters is Section 4, Vernon’s Texas Probate Code, which reads
as follows:
“The county court shall have the general juris-
diction of a probate court. It shall probate wills, ap-
point guardians of minors and incompetents, grant letters
testamentary and of administration and guardianship,
settle accounts of personal representatives, and transact
all business appertaining to estates subject to administra-
tion or guardianship, including the settlement, partition,
and distribution of such estates. It may also appoint
guardians for other persons where it is necessary that a
guardian be appointed to .receive funds from any govern-
mental source or agency. ” (Emphasis added. )
The creation of probate courts and their constitutionality was dealt
with in State ex rel. Rector, et al v. McClelland, 148 Tex. 372, 224 S. W. 2d
706 (1949). This case specifically dealt with the Probate Court of Harris
County as created by Article 1970-110a. The Court held, in part:
“The Act does not undertake to limit or take away
the jurisdiction of the County Court of Harris County. It
provides for another court to share the burdens and juris-
diction of the County Court, in order to dispose of cases
that have already crowded the docket of that court . . . ”
(at page 710. )
It is our opinion that Section 4, Vernon’s Texas Probate Code, and
Article 1970-350, Section l(b), when considered together, and in the light
of the McClelland case, give the County Court at Law of Bell County the
same jurisdiction as the County Court of that county in probate matters, and
that the County Court and the County Court at Law have concurrent jurisdiction
in probate matters. Either the Judge of the County Court or the Judge of the
County Court at Law could sit as Probate Judge.
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Honorable Joe Carroll, Jr. ; page 5 .? (M-9221
SUMMARY
The County Court at Law of Bell County has
jurisdiction in eminent domain cases and probate matters.
Senate Bill 240, Acts 62nd Legislature, Regular Session,
1971.
The mere fact of a vacancy in the judgeship of the
Bell County Court at Law would not change the jurisdiction
in condemnation cases. Under Senate Bill 240, eminent
domain cases should be filed with the Judge of the County
Court at Law.
The County Court at Law of Bell County has con-
current jurisdiction with the County Court of that county in
probate matters. Article 1970-350, Section l(b), Vernon’s
Civil Statutes.
Prepared by Edward B. Rather
and Robert L. Towery,
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Ron Tigner
Arthur Sandlin
Ben Harrison
Sam Jones
MEADE F. GRIFFIN
Staff Legal Assistant
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Honorable Joe Carroll, Jr., page 6 (M-92.2)
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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