# 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 5of the Texas Probate Code is constitutional. ‘As amended, Section 5of the Probate Code now reads in pertinent part:

The digtrict court shall have original control andjurisdiction 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 thejuris- .’ diction ofa probate court, the district court, concurrently with the county court shall have the general jurisdiction ofaprobate court ~ D~~ In those counties where there is a statutory probate court, county court at law, or other statut:ory court exercising thejuri,sdi.ctions of aprobat.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 DD. ~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
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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 ofthe right ofproperty 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 16of the ~Texas Constitution which provides in pertinent part:

County Courts: jurisdiction
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. . . shall~not have jurisdiction of suits for the recovery of land.
. . . The County Court shall have the general juris,- diction ofa Probate Court ; . . . The effectiveness ofthe 1973 amendment to the Probate Code (Acts 1973, 63rd Leg., p. 1684, ch. 610)was made contingent upon the adoption ofa proposed amendment to Section 8ofArticle 5ofthe 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 8of Article 5, Texas Constitution, now provides:

The distri.ct court, concurrently with the county court, shall have the general jurisdiction of aprobate court . DDs The Legislature, however, shall have the power, by local or gene~ral law; Section 16ofArticle V of this Constitution notwithstanding, to increase, diminish or eliminate thejurisdiction of either the district court or the county court in probate tiatters, and in cases ofany such change ofjurisdiction, the legislature shall also conform thejurisdiction of the other courts to such change e D0 : (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, ifpossible. 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 apresumption 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 ofamended Article 5, Section 8, Texas Constitution, ,.thatthe Legislature shall have the power to increase, diminish, or eliminate probate jurisdiction of the district and county courts, “Section 16ofArticle V of this Constitution notwithstanding, I’we believe the above guidelines require us to conclude that Section 16does 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 1973amendment to Section 5of the Texas Probate Code is constitutional, and that all courts, including - county courts, exercising probate jurisdiction may now hear all matters incident to an estate, including matters ofland ti,tle. Since your other questions were contingent upon a finding that the probate code amendment was unconstitutional, we need not answer them.

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

SUMMARY The 1973amendment to Section 5of the Texas Probate Code is constitutional. Very truly yours, 

# v Attorney General .ofTexas APPROVkD:

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DAVID M. KENDALL, Chairman Opinion Committee

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