TEIEATI-ORNEYGENERAL
OF TEXAS
June 21, 1949
Hon. Charles R. Jones
senate committee on counties
and County Boundaries
51st Legislature
Austin, Texas Opinion Bo. V-846.
Rer Constitutionality of H. B.
912 authorizing the Coun-
ty Judge of counties of
500,000 or more population
to appoint a master in
chancery to perform pro-
bate duties.
Dear Senator:
You request an opinion a6 to the constitution-
ality of House Bill lie. 912 which, omitting the title,
the enacting, the emergency, and the severability claus-
es, is as follows:
"Section 1. This Act shall apply only
In counties having a population of five hun-
dred thousand (500,000) or more, according
to the last preceding Federal Census.
"Sec.2. The County Judge in such coun-
ties shall have authority to appoint a master
In chancery to perform any and all of the du-
ties required of the judge of the County
Court sitting in probate matters. The order
of appointment may authoriee such special mas-
ter to do or perform particular acts, or it
may in general terms authorize and require the
special master to do or perform certain gener-
al types of acts In causes and proceedings
then pending in said County Court. The master
shall keep a memorandumshowing each act per-
formed by him, stating the general nature, and
at least once each month, shall file a com-
plete statement and report with the County
HOEI.Charles R. Jones, page 2 (V-846)
Judge listing the date of the act Andyits gen-
eral nature. All actions, decisions and de-
terminations by such special master shall be
subject to examination and approval by the
County Judge Q Re may approve them separately,
or by a general order made once each month,
When sny order or action is made by the spe-
cial master, It may be appealed from to the
same extent and in the same mauner as if it
had been made by the County Judge. At aug
ttie within thirty (30) days after the making
of any order or the taking of any action by
such special master, OP if such order or ac-
tion is appealed from, then at any time before
an appeal bond or application for cePtlorar5
is filed, the County Judge may on his own mo-
tion, or on motion of any lntepested party,
set aside any actioq of the special master.
“Sec. 3. (Provides for compensation and
Is not relevant here; it is therefore omitted
in the interest of brevity.)
‘See, 4, When the County Judge is absent,
or is unable to act in any probate matter
pending In the County Court, then the judge of
any County Court at Law (without regard to the
exact name of such County Court at Law) may
sit as judge of the County Court, and may heap
any cause, OP any part of any cause, or pro-
ceeding pending on the probate docket, or make
any order, or sit in any cause in which the
County Judge would have powep to act 0 When
sitting In any probate matter as County Judge,
any judge of any County Court at Law shall be
invested with the same power, authority and
jurisdiction as the County Judge sitting as
the judge of the probate court. When any or-
der Is made or entered In the County Court by
the judge of any County Court at Law, it shall
be presumed that the County Judge was absent
or unable to act in the matter in which such
order was so madeD In addition to any other
remedies provided by law, any person who may
consider himself aggrieved by any such order
made by a judge of the County Court at Law
sitting as e of the County Court, may
withln ten days after the date of such
Hon. Charles R. Jones, page 3 (V-846)
order or proceeding, apply to the County Judge
to have such order set aside, modified, vacat-
ed or annulled as the circumstances may re-
quire; OP, sn appeal may be prosecuted, or
nit of certiorari applied for, in the same
manner and under the same regulations as is
now provided by law in case of orders and de-
cisions of judges of the Couuty Court in pro-
bate matters.*
Section 2 of the Act provides that the County
Judge shall have authority to appoint a master in chan-
cery to perform any and all of the duties requlred of
the Judge of the County Court sitting in probate matters
and provit¶es that all actions, decisions and determina-
tions by such special master shall be subject to examl-
nation and approval by the County Judge. Special provl-
sion is made for an appeal from an order of a special
master in the same manner as if it had been made by the
County Judge.
Section 4 declares that when the County Judge
is absent or unable to act, the Judge of any County Court
at Law may hear any cause or proceeding pending on the
probate docket, OP make any order which the County Judge
would have power to make, granting unto said Judge of
any County Court at Law the same power, authority and
jurisdiction as the County Judge sitting as the Judge of
a probate court, Because of the holding herein, it is
not necessary to pass upon the question as to whether
this would constitute the holding of two offices of emol-
ument by the same person in violation of Section 40 of
Article XVI of the Texas Constitution.
Section 16 of Article V of the Constitution of
Texas is in part as follows:
"The County Court shall have the general
jurisdiction of a probate court; they shall
probate wills, appofnt guardians of minors,
Idiots, lunatics, persons non compos mentls
and common drunkards, grant letters testamen-
tary and of administration, settle accounts
of executors, transact all business appertain-
ing to deceased persons, minors, idiots, luna-
tics, persons non compos mentis and common
drunkards, including the settlement, partition
Hon. ChaPlea R. Jones, page 4 (V-846)
and distribution of estates of deceased per-
sons and to apprentice mlnors, as provicled by
law; 0 o -”
Section ~22, Article V of the Texas Constitution
is as follows:
“The Legislature shall have power, by lo-
cal or general law, to Increase, dltinish or
change the civil and criminal jurisdiction of
county tour a; an in cases of any such change
of jurisdiction, the Legislature shall also
conform the jurlsdlctlon of the other courts
to such change.’ (Italics added throughout
this opinion.)
In State v, Gilletteas Estate, 10 S.P.2d 984
(Comm. App, 1928) the court pointed out that the jurls-
diction of the County Court was three-fold: civil, crlm-
inal, and probate. Under Section 22 above, the Legis-
lature may change the civil and crQnina1 jurisdiction.
Rut it may not change the obate jurlsdiction,because
of the positive language 16 above and because
Section 22 says the Legislature may (only) change the
“civil and criminal jurisdiction.” In this regard Judge
Critz said:
I( 0 D D There is no escape from the con-
clusion that It was the intent and express pun
pose of section 16 of article 5 of the Constl-
tutlon to confer exclusive oroiginal
jurisdiction on the county courts. E$%er
construction of the several provisions of apt%
cle 5 would z%nder section 22 of said %Pticle
absolutely meaningless and void. Section 22
of article 5 expressly provides that the Legis-
lature has power to illcrease, diminish, or
change the civil and criminal juPlsdiction of
county cot&s and conform the jurisdiction of
the district and other IMerior courts to such
change. If the Legislature has the power or
authority under section 1 of article 5, which
is a general provision, to ipcrease, dllainish,
OP change the probate jur4sdiction of the coua-
ty court or conform the jurisdiction of the
district or other inferior courts to such
change, then section 22 would be a meaningless
and idle provision0
.
Hon. Charles R. Jones, page 5 (V-846)
“lie therefore conclude that section 22 of
article 5 of the Constitution of this state,
In so far a8 the probate jurisdiction of the
county court is concerned, speaks exclusively
as to the right of the Legislature to increase,
change, or diminish the jurisdiction of such
courts as prescribed and defined under section
16 of the same article, and that said section
22 speaks exclusively as to the right or power
of the Legislature to conform the jurisdiction
of the district or other Inferior courts to
such change. Section 22 limits the power of
the Legislature in this respect to the civil
and CrilPinal jurisdiction of the county courta
follows that any effort on the
part of the Legislature to increase, diminish,
or change the robate jurisdiction of the coun-
ty court of Rabcounty or to confer such
probate jurisdiction on any’other court, would
be void, as contrary to the fundamental law of
the land. ”
Section 2 of said bill provides that aThe
County Judge in such counties shall have authority to
appoint a master In chancery to perform any and all of
the duties requlred.of the judge of the county Court
slttinn in D bat tt It th I delegation
f th 8 exclugflve &.%d%ion ofa~heo~o~~yaJudge in
8iolation of Section 16 of Article V of the Constitution
of Texas.
Even though the County Judge might not appoint
!*a master in chancery to perform all of those acts pro-
‘vided for In Section 2, the mere fact that he is given
such power renders the bill Invalid in that regard. The
possibility of approval of the master’s action by the
County Judge does not affect this conclusion.
Furthermore, it is provided that “When any or-
der or action is made by the special master, it may be
appealed from to the same extent and in the same mauner
as if It had been made by the County Judge.” This indi-
cates an assumption of jurisdiction by the master and a
delegation by the county judge of duties Imposed on him
by the Constitution. The Legislature might authorize
the County Judge to appoint a master in chancery to as-
sist him in finding facts; but the bill in question does
not limit the duties of the master to that of a fact
.
Hon. Charles R. Jones, page 6 (V-846)
finder. On the contrary, it authorizes final action by
him on such probate matters as shall have been delegated
to him by the County Judge aad thus the performance of
a duty which is the exclusive prerogative of the County
Judge.
It is therefore our opinion that In the re-
spects mentioned House Bill Ho. 912 is unconstitutional
being in violation of Section 16 of Article V of the
Constitution of Texas granting exclusive probate juris-
diction to the County Court.
SUMMARY
House Bill Ho. 912, 51st Legislature,
which proposes to authorize the County Court
to appoiut a master in chancery to perform
the probate duties exclusively required of
the Judge of the County Court is umonstitu-
Mona1 and void, being in violation of Sea-
tion 16. Article V of the Constitution of
Texas. --State v. Mllette*s Estate, 10 S.U.
26 984 (&mm. APP. 19281
Yours very truly,
ATTOFdEXG3I9ERALOFTYXAS
B?:bh Assistant /
ATTORRE WMRRAL