OF TEXAS 

Auwrnv. TXXAS 78711 

October 29, 1974 

The Honorable Henry Wade 

District Attorney 

Dallas County Government Center 

Dallas, Texas 75202 

Dear Mr. Wade: 

Opinion No. H- 434 

Re: Constitutionality of 

1973 amendments to 

Section 5. Texas 

Probate Code 

Your request for our opinion asks whether~ a 1973 anmndment to 

Section 5 of the Texas Probate Code is constitutional. ‘As amended, 

Section 5 of the Probate Code now reads in pertinent part: 

The digtrict court shall have original control and jurisdiction over executors, administrators, guardians and waids under such 

regulations as may be prescribed by law. 

In those counties in which there is no 

statutory probate court, county court at law 

or other statutory court exercising the juris- .’ 

diction of a probate court, the district court, 

concurrently with the county court shall have 

the general jurisdiction of a probate court ~ D ~ ~ 

In those counties where there is a statutory 

probate court, county court at law, or other 

statut:ory court exercising the juri,sdi.ctions 

of a probat.e court,. all applications, petitions 

and motions regarding probate, administr’ati,onS, 

guardianshi,ps, and mental illness matters shall, 

be filed and heard in such courtsi, and the constitutional county court, rather than in the 

district courts D D . ~ All courts exercising’ 

original probate jurisdiction shall have the 

power to hear all matters incident to an estate, 

including but not limited to, all claims by or 

p0 2008 
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The Honorable Henry Wade, page 2 (H-434) 

against an estate, all ‘actions for trial of 

title to land incident to an estate and for the 

enforcement of liens thereon incident to an 

estate and of all actions for trial of the right 

of property incident to an estate. 

You suggest that provisions in the amendment extending the county 

court’s jurisdiction in probate matters to incidental actions concerning 

title to land may conflict with Article 5, Section 16 of the ~Texas Constitution which provides in pertinent part: 

County Courts: jurisdiction . e . 

. . . shall~ not have jurisdiction of suits for 

the recovery of land. . . . 

The County Court shall have the general juris,- 

diction of a Probate Court ; . . . 

The effectiveness of the 1973 amendment to the Probate Code (Acts 

1973, 63rd Leg., p. 1684, ch. 610) was made contingent upon the adoption 

of a proposed amendment to Section 8 of Article 5 of the Constitution. 

(Acts 1973, 63rd Leg., po, A-107, S. J.R. No. 26) 

That amendment was adopted on November 6, 1973, and, as amended, 

Section 8 of Article 5, Texas Constitution, now provides: 

The distri.ct court, concurrently with the 

county court, shall have the general jurisdiction of a probate court . D D s The Legislature, however, shall have the power, by 

local or gene~ral law; Section 16 of Article V 

of this Constitution notwithstanding, to 

increase, diminish or eliminate the jurisdiction of either the district court or the 

county court in probate tiatters, and in 

cases of any such change of jurisdiction, the 

legislature shall also conform the jurisdiction 

of the other courts to such change e D 0 : 

(Emphasis added) 

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The Honorable Henry Wade, page 3 (H-434) 

In determin-ing the answers fo your questions we must be guided by 

two well-established principles of our law: 

1. All provisions of the Constitution relative, 

to the same subject are to be construed together 

and interpreted in such a manner as will avoid a 

conflict, if possible. Yeary v. Bond, 384 S. W. Zd 

376. (Tex. Civ. App. --Amarillo~ 1964, writ ref’d. 

n. r* e. ); Railroad Commission v. St. Louise Southwestern Railway Company, 443 S. W. 2d 71 (Tex. 

Civ. App. --Austin 1969, writ ref;d. n. r. e. ). 

2. In passing upon the constitutionality of a 

statute, there is a presumption of validity. It is 

presumed that the Legislature has not acted 

unreasonably or arbitrarily. Robinson v. Hill, 

507 S. W. 2d. 521 (Tex. 1974). 

Because of the exp,ress language of amended Article 5, Section 8, 

Texas Constitution, ,.that the Legislature shall have the power to increase, 

diminish, or eliminate probate jurisdiction of the district and county 

courts, “Section 16 of Article V of this Constitution notwithstanding, I’ we 

believe the above guidelines require us to conclude that Section 16 does 

not affect the validity of the Probate Code amendment providing that all 

courts exercising probate jurisdi,ction may hear all matters incident to 

an estate, includi,ng questions of land title, 

It is our opinion, therefore, that the 1973 amendment to Section 5 of 

the Texas Probate Code is constitutional, and that all courts, including 

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county courts, exercising probate jurisdiction may now hear all matters 

incident to an estate, including matters of land ti,tle. 

Since your other questions were contingent upon a finding that the 

probate code amendment was unconstitutional, we need not answer them. 

p0 2010 
The Honorable Henry Wade, page 4 (H-434) 

SUMMARY 

The 1973 amendment to Section 5 of the Texas 

Probate Code is constitutional. 

Very truly yours, 

v Attorney General .of Texas 

APPROVkD: 

- 

DAVID M. KENDALL, Chairman 

Opinion Committee 

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