Honorable Carl A. Parker Opinion No. JM-1244
Chairman
Education Committee Re: Jurisdiction of the 356th
Texas State Senate District Court over probate
P. 0. Box 12068 matters (RQ-2040)
Austin, Texas 78711
Dear Senator Parker:
you ask whether the 356th District Court of Hardin
County has jurisdiction of probate matters.
Section 24.502 of the Government Code provides for the
creation of the 356th Judicial District Court and makes
provision for its having concurrent jurisdiction with the
county court in designated types of cases. Section 24.502
states:
(a) The 356th Judicial District is composed
of Hardin County.
(b) The 356th District Court has concurrent
jurisdiction over all matters of civil and
criminal iurisdictia original and appel-
late, in cases over which the countv court
has jurisdiction under the constitution and
laws of this state. Matters and proceedings
in the concurrent jurisdiction of the 356th
District Court and the county court may be
filed in either court, and all cases of
concurrent jurisdiction may be transferred
between the 356th District Court and the
county court. (Emphasis added.)
The matter of whether the 356th District Court has
jurisdiction of probate cases turns on whether the granting
to the court of concurrent jurisdiction with county courts
in civil matters vests the court with probate jurisdiction.
The issue becomes one of whether probate jurisdiction comes
within the ambit of civil jurisdiction under your scenario.
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Honorable Carl A. Parker - Page 2 (JM-1244)
Section 8 of article V of the Texas Constitution
provides the jurisdiction of a district court
consists of exclusive, appellate, and origi-
nal jurisdiction of all actions, proceedings,
and remedies, except in cases where exclu-
sive, appellate, or original jurisdiction may
be conferred by this Constitution or other
law on some other court, tribunal, or admin-
istrative body.
Section 16 of article V of the Texas Constitution
addresses the matter of the jurisdiction of county courts.
It delineates the county court's original civil and criminal
jurisdiction as well as its appellate jurisdiction in civil
and criminal matters of which justice courts have original
jurisdiction. Section 16 further provides the "County Court
shall have the general jurisdiction of a Probate Court,"
specifically setting forth such matters as probating wills,
appointing guardians, granting letters of administration,
etc., as provided by law.
Section 29 of article V of the Texas Constitution also
treats the civil, criminal and probate jurisdiction of
county courts separately. Section 29 provides that the
county court "shall hold at least four terms for both civil
and criminal businessw annually. In separately addressing
the county court's jurisdiction over probate matters,
section 29 states that %aid court shall dispose of probate
business either in term time or vacation, under such re-
gulation as may be prescribed by law."
While we have found no Texas cases which have addressed
the matter, opinions of courts from other jurisdictions
support our conclusion that "civil causes and actions, civil
suits and civil cases do not include any case arising under
the county court's probate jurisdiction." ell
Wickoa, 278 P. 1088 (Okla. 1929); MC ' 150 ;.
1046 (Okla. 1915); M ADDeEd Of Sl%;, 96??-%;, (Conn.
1915); State v. m I 45 N.N. 526 (Wis. 1890).
A review of jurisdiction vested in the numerous statu-
tory county courts of this state reflects that the legisla-
ture treats civil, criminal and probate jurisdiction sepa-
rately. Gov’
t Code ch. 25.
Section 5 of the Probate Code provides the circum-
stances in which the district court may acquire jurisdiction
in contested probate matters. Subsection (b) of section 5
provides in pertinent part:
P- 6627
Honorable Carl A. Parker - Page 3 (JM-1244)
In those counties where there is
statutory probate court, county court at 1::
statutory exercising the
&~%&.on of a probzE2ourt, all applica-
petitions and motions regarding
probaie, administrations, guardianships,
limited guardianships, and mental illness
matters shall be filed and heard in the
county court, seat that in contested
probate m#exf. the iydae of +a county
court S motion for &MU on ths
v Dartv to the DrOCeedin&
gccorha to the mot-St as Drovided
Bv section 25.0022. ~Government code.the
hear the contested DO- of the DrOCeedlnQ,
filed in distzict coue . The county court
shall continue to exercise jurisdiction over
the.management of the estate with the excep-
tion of the contested matter until final
disposition of the contested matter is made
by the assigned judge or the district court.
In contested matters transferred to the
district court in those counties, the dis-
trict court, concurrently with the county
court, shall have the general jurisdiction of
a probate court. IJcon resolution of all
pendim contested matters. the contested
~,ortionof . . be
transferred bv the district court to the
countv court for further DrOCeedinCIS not
sistent with the orders of the district
!S!C!W&. (5mphasis added.)
The granting of concurrent jurisdiction in civil and
criminal matters over which the county court has jurisdic-
tion to the 356th District Court does not vest the court
with original probate jurisdiction. Its jurisdiction is
limited to contested probate matters that may be transferred
to the district court pursuant to subsection (b) of section
5 of the Probate Code.
The 356th Judicial District Court of
Hardin County's jurisdiction over probate
matters is limited to contested probate
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Honorable Carl A. Parker - Page 4 (JM-1244)
matters that may be transferred to the
district court pursuant to subsection (b) of
section 5 of the Probate Court.
MATTOX
Attorney General of Texas
MARY msLER
Pirst Assistant Attorney General
IMJ l4ccREARY
Executive Assistant Attorney General
J'UDGEZOLLIESTEAHLRY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 6629