THEATTORNEYGENERAL
OFTEXAS
April 2, 1949
Ron. Willim B. Teague, Chairman
Judiciary Distriots Committee of House
51st Legislature
Austin, Texas
Opinion Ro;V-SO2
Re: constitutionalityof B,B.
677 creeting a County
Court to be called the
Probate Court of Harris
County.
Dear Sir:
House Bill Ro. 677, to which your letter of
request rerers, contains the following title:
"AR ACT to establish the Probate
Catlrtaf Harris County; to define the jvr-
isdiation therQQf and to conrorm to such
ohange the juxisdiotiohof the County Court
or Rarrls County; add providing ror,the
transfer of proceedingsand matters from
the Couut,yCourt of Harris County to said
Probate Court of Harris County, declaring
the validity in transferred cases of writs
and processes extant at the time of such
transfer.;providing for the practice and
procedure in said Court, and for theterms
of said Court, and the election, qualifi-~
cation and appointment Of a Judge thereof,
rnd tho axeoutien of a bond and oath of of-
rice,~the rilling of vaoancies on said ,'
Court, the election or appointment of a
Speolal iludgo;the providing of a Clerk
and the duties or the Sheriff a8 to suoh
Court, and establishingthe fees and corn-
pensatiou to be paid the Judge thereof,and
providing for-the pawent or such cornpen-.
sation; ~aoniorriag,upea,seberJpdsss 113
said County power to sit and act as the
Judge of said Court in certain c.ases;pro-
viding ror eonrmt br ruoonstitutionality
in said Act; and deolaringan emergenoy."
Hon. THIllIamB. Teague - Page 2 ‘1
(V-802
Section 1 of the Act declares "there IS
hereby created a County Court to be held in and for
Harris County, to be called the,ProbateCourt of
Harris County."
Section 2 thus defines the jurisdiction
or the Probate Court or Harris County:
"Section 2. The Probate Court of
Harris County shall have the general jur-
isdiction of a Probate Court within the
1Imits of Harris County. It shall pro-
bate'wills, appoint guardians of minors,
idiots; lunatics, persons non compos
mentis, and consnondrunkards,grantlet-'
ters testamentaryand of administration,
settle ackounts 0r executors, transaat
all business appertainingto deceased.
persons, minors, idiots, lunatics, per-
sons'non compos mentis and common drunk-
ards, Including the settlement,parti-
tion and distributionof estates of de-
ceased persons, lunacy proceedingsand
the apprenticingof minors as provided
by law; and on the first day of the InI-
tial term of said Court, as herein pro-
vided, all such proceedingsand matters
then pending In the County Court of Har-
ris County shall be transferredto the
said Probate Court of Harris County, alid
all civil writs and processes thereto-
fore issued by or out of said County
Court in such matters or proceedings
shall be-returnableto the Probate Court
of Harris County, as though originally
issued therefrom."
Seofion 3'deolares:
"8eotIon 3. The County Court or
Ferris County shall retain, as heretofore,
the powers and jurisdictionof said Court
existingat the time oP the passage of
this Act, other than those matters provid-
ed in Section 2 of this Act to be exer-
cised by said Probate Court of Harris
county. The County Judge of Harris County
shall be the Judge of the,County Court of
Hon. William B, Teague - Page 3 (V-802)
Harris County, and all ex officio duties
of the County Judge of Harris County, as
they now exist, shall be exercised by
the said Judge of the County Court or Har-
ris County, except Insofar asthe same
shall, by this Act, be committed to the
Judge of the Probate Court or Harris Coun-
sty. .Nothing In this Act contained shall
be construed as'in anywise Impairing or
arrsating the jmsaiotion or~the county
Court atLaw of Harris'County,Texas, or
ofthe County Court at Law No. 2 of Harris
County, Texas."
Se&ion 5 giveesthe Probate Court of Harris
County jurisaictionto issue,certainwrits ana Section
6 p,resoribesthe terms of the Court.
Seotion 13 of the bill provides that In the
ease of the absence, dIsqualifIcationor incapacityof
the Judge of the Probate Court of Harris County, either
the Judge of the County Court at Law of Harris County
or the Judge of the County Court at Law No. Two of Har-
ris County may sit and act as Judge of said Court and
may hear and determine, either in his own courtroom or
la the courtroom of said Court, any non-contestedpro-
oeeaing therein pending and enter any orders in the pro-
ceeding as the~Judge ofsaid Court might enter in per-
son if presiding therein, except orders approvingclaims
of final accounts, or dischargingguardians, administra-
tors, or executors.
Section16 of Article V of the Texas Consti-
~tution declares "the County Court shall have the general
jurisdictionof a Probate Court; they shall probatewIlls,
‘appoint guardians of minors, idiots, lunatics, persons
non compos mentis and comnon drunkards, grant letters
testamentaryand of administration,settle accounts of
executors, transact all business appertainingto deceas-
ed persons, minors, idiots s lunatics,persons non compos
mentis, and common drunkards, including the settlement,
partition, and distributionof estates of deceased per-
sons) and to apprenticeminors, as provided by law; 0 em '
The bill does not attempt to abolish the Coun-
ty Court ror Harris County, but it creates another County
Court to be known asthe~Pr0bat.eCourt of Harris County,
Hon. William B. Teague - Page 4 (V-802)
The Legislature is as powerless to abolish
the oonstitutionaljurisdiotionof a constitutional
court as it is to abolish the court itself. It Is
corollaryto this further to say that the Legislature,
where there exists a constitutionalcourt with a oon-
stitutional jurisdiction,is powerless to create anoth-
er court of any name and give to it the exclusive jur-
isdiotionof the constitutionalcourt.
In Reasonover v. Reasonover, 122 Tex. 512
50 S.W. 26 817 th S C t hefd that the Leg&
lature cannot ~akeeaw$r%?m i”h’B District Court juris-
diction given It by the Constitutionover divoroe
oases. The analogy Is perfeot and is controllingof
the present ,inqulry.We quote from the ‘R asonover
case anticipatingthe possible auggestlon+ILiirs pro-
vision of Section 1 of Article V of the Constitutionla
an answer. THat Se&ion reads:
“The Legislature,may establish such
other Courts as it may deem neaessary and
prescribe the jurisdiotfonand organiza-
tion thereof, apa may conform the juris-
diction of the District and other inferior
Courts thereto.m
..-,
.~.
,.
Speaking to the very point, Mr. Justice Pler-
.son said that this provision “was not intended to auth-
orize the Legislature to deprive the regular District
Cour~tsof any of the jurisdictionexpressly conferred on
them by the Constitution;nor that the jurisdictionof
the District Court should be conformed to that of the
statutory courts by destroying the constitutionaljuris-
diction of the District Courts, or by transferringa
part or all of it exclusivelyto a statutory court, but
rather that such jurisdictionas fixed in the Constitu-
tion may be made concurrentwith suoh other Courts cre-
ated by statute. . I .
“If ‘conform’means *to deprive,’ the
LegislatureZs empowered to take away from
a regular District Court all the,jurisdic- ,’
tion given it by the Constitution,and con-
fer it upon the statutory courts; This
would not be loonforming’but ‘destroying’
the jurisdictionof the District Court to
the extent the Legislaturemight eleot. It
is difficult to believe the people so in-
tended, or that they intended to give to
.
Hon. William B. Teague - Page 5’ (V-602)
the word loonform*a meaning other than
Its ordinary meaning.”
Whatever one may think of the soundness of
the definition of uoonformw as applied by Justice
‘Pierson, it is the established law of this State and
as such we must conform to it unless and until the
Supreme Court itselr construesSeotion 1 differently.
But we are not left to analogies in the pres-
ent’inquiry~.In State v, Gillette’sEstate, 10 S,W, 26
924, the precise question was involve8 and decided,
Judge Critz, member of the Coauaissionof Appeals to the
Supreae Court, writing the opinion, said:
“If the act conferringprobate juris-
diction on the SO-Oalledcounty oourt at
law~of Eastland county can be sustained at
all, it must be done under that part of seo-
tion 1 or artfole 5 or our state Constitu-
tion above referred to. 0 0 .,
“However, this provision of article 5
rust be read and construed so as to give ef-
foot and meaning to sectlen 22 of the same
article, as no constructionshould be indulg-
ed in that will render any part of article
5 reaningless. There is no escape from the
~onolusion that it was the intent and express
purpose of section 16 of article 5 of the Con-
stitution to confer exclusive orfginal.pro-
bate jurisdictionon the county courts. Any
other constructionof the several provisions
of article 5 wbuld render section 22 of said
article absolutelymeaninglessand voida Se+
tion 22 of’article 5 expressly provides that
theLegislature has power to increase, dimin-
ish; or change the civil and criminal juris-
diction or oounty courts and conform the jur-
isdiatlonof the district and other inferior
oourts to such change. 0 e D
“We therefore conclude that section 22
of article 5 of the Constitutionof this state,
in so far as the probate jurisdictionof the
county court is concerned,speaks exclusively
as to the right of the Legislature to in-
,erease,change, or diminish the jurisdiction
Hon.William B. Teague - Page 6 (V-802)
of such courts as prescribed aud defined
underseotim l6 of the same article, and
thatsaidsectionP: speaksexclusivelyas to
the right or power of the Legislature to
ooqform the jurisdictionof the district
or other inferior courts to such change.
. . .
“It follows, therefore, that the
part of the aot which attempts to create
the ‘County Court at Law for Xastland
Couuty, Texas,t and give It probate jur-
isdiction,and also that part of the act
which attempts to deprive the constitu-
tional county court of Eastland county of
the exclusive probate jurisdiotion~oon-
ferred thereon by the Constitution,is un-
constitutionaland void, and all pretend-
ed probate orders, judgments,and decrees
entered by said county court at law with
reference to the estate of F. G. Gillette,
deceased, were and are utterly without
force and void.”
H. B. 677, 51st Legislature,which
proposes to divest the County Court of pro-
bate juriadiction,andto create a separate
“Probate Court” which would be given such
jurisdiction,is unoonstitutional. Article
V, Section 16 of the Texas Constitutionoon-
fers that jurisdictionon the County Court,
and it my~not be divested except by con-
stitutionalamendment. Reasonover v. Rea-
aimover, 122~Tex. 512, 58 S W 2d 817 (1933);
State. Gillette’s Estate,‘16 S.W. 26 984
(Tex. Comm. App. 1928).
Yours very truly,
APPROVED: ATTOREEY GEWERAL OF TEXAS
%2;$
ATTORWFX GENERAL BY
ii!&i3e*
0S:wb Assistant