F EXAS 

December 19, 1962 

Hon. W.. L. Hardwick 

County Attorney 

Live Oak County 

George West, Texas 

Dear Mr. Hardwick: 

Opinion No. WW-1505 

Re: Whether a County Judge 

may serve as guardian 

of the person and estate 

of a person of unsound 

mind in the court over 

which he otherwise 

presides. 

Your letter states that Mr. Harry L. Hinton will take office as 

County Judge of Live Oak County in January, 1963, and that he is presently 

serving a guardian of the person and estate of one of unsound mind. 

In particular you ask, ‘I. . . if there is any prohibition against 

him serving as such guardian during the time he is County Judge if he 

disqualified himself as Judge in that particular case and another judge 

is appointed by the Governor. ” 

Section 1’6 of Article V of the Constitution of Texas, is in part 

as follows: .I 

“The Gounty Court shall have the general jurisdiction 

of a Probate bourt; they shall probate wills, appoint guardian of minors, idiots, lunatics, persons non compos mentis 

and common drunkards, grant letters testamentary and of 

administration, settle accounts of executors, transact all 

business appertaining to deceased persons, minors, idiots, 

lunatics, persons non compos mentis and common drunkards, including the settlement, partition and distribution 

of estates of deceased persons and to apprentice minors, 

as provided by law;. . . ” 

Article 319, Vernon’s Civil Statutes, ‘$tates: 

$o judge or clerk of the Supreme Court, Courts of 

Civil or Criminal Appeals, or District Court, or sheriff or 
. 

Hon. W. L. Hardwick, page 2 (WW-1505) 

deputy, or constable, shall be allowed to appear and plead 

as an attorney at law in any Court of record in thiqSt.ate. 

No county judge or county clerk who is licensed to practice 

law shall be allowed to appear and practice as an attorney 

at law in any county or Justice Court, except in cases where 

the Court over which such judge presides, or over which 

such clerk is clerk has neither original nor appellate jurisdiction. No county clerk who is licensed to practice law 

shall be allowed to appear and practice as an attorney at 

law in any District Court, Court of Civil Appeals, Court 

of Criminal Appeals, or the Supreme Court unless the 

Court of which such clerk is clerk has neither original 

nor appellate jurisdiction. ” (Emphasis added) 

The underscored portion of the above statute leaves no doubt 

that a County Judge is precluded from practicing law in any County Court, 

except in those cases where then Court over which he presides has neather 

original nor appellate jurisdiction. 

This conclusion ra!ses the question of whether or not serving 

as guardian of the person and estate of a person of unsound mind constitutes 

the practice of law. The answer to this question is found in Sections 109 

and 110 of the Texas Probate Code. Section 109 is entitled “Persons 

Qualified to Serve as Guardians”; and provides that if certain designated 

classes of individuals (spouse and nearest of kin) refuse to serve or are 

non-existent or fail to qualify, “then any other qualified person shall be 

entitled to the guardianship. ” V. A. T. S. Probate Code, Section 109(c) (2). 

Section 110 of the Probate Code is entitled “Persons Disqualified to Serve 

as Guardians. ” This section enumerates some eight causes which prevent 

qualification. Failure to be a practicing attorney is not one of these causes. 

Construing these two sections together, it is our conclusion 

that the Texas Probate Code has no restriction against a qualified layman 

serving as a guardian; and that such service, of itself, does not constitute 

the practice of law. 

We are therefore of the opinion that Article 319, Vernon’s 

Civil Statutes, does not prohibit a County Judge who is also a licensed 

attorney from serving as guardian of the person and estate of a person 

of unsound mind in the court over~which he presides if the following condltions are met: 
Hon. W. L. Hardwick, page 3 (WW-1505) 

1. Whenever a matter relating to the guardianship is 

broaght before the court, the County Judge must disqualify 

himself according to the provisions of Article 5, Section 11 

of the Constitution of Texan. which provides in part: “No 

judge shall sit in any case wherein he may be interested. . . ” 

2. Whenever a matter relating to the guardianship 

is brought before the court, or whenever the provisions 

of the Texas Probate Code require some action by the 

County Judge concerning the guardianship, then the provisions of Article 1932, Vernon’s Civil Statutes, must be 

followed. 

Article 1932 reads as follows: 

“When a county judge is disqualified to act in any 

probate matter, he ahall forthwith certify his disqualification therein to the Governor, whereupon 

the Governor shall appoint some person to act as 

special:judge in said case, who shall act from term 

to term until such disqualification ceases to exist. 

A special judge so appointed shall receive the same 

compensation as is now or may hereafter by provided by law for regular judges in similar cases, 

and the Commissioners’ Court shall, at the beginning of each fiscal year, include in the budget of 

the county a sufficient sum for the payment of the 

special judge or judges appointed by the Governor 

to act for the regular county judge. ” 

3. Whenever a matter relating to the guardianship is 

brought before the County Court, and such matter is one which 

would require presentation by a licensed attorney, the County 

Judge must be represented, as guardian, by another licensed 

attorney. 
Hon. W. L. Hardwick, page 4, ~(WW-1505) 

SUMMARY 

The provisions of Article 319, Vernon’s Civil Statutes, 

do note prohibit a County Judge who is also a licensed attorney 

from serving as guardian of the person and estate of a person 

of unsound mind in the court over which he may preside if the 

following conditions are met: 

1. The County Judge must comply with the 

provisions of Article 5, Section 11 of the Constitution 

of Texas. 

2. The provisions of Article 1932, Vernon’s 

Civil Statutes, must be followed. 

3. In guardianship matters brought before 

the court requiring presentation by a licensed 

attorney, the County Judge must be represented, 

as guardian, by another licensed attorney. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

~GORDON ZUB@t 

Assistant Attorney General 

JGZ/ms 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Sam Stone 

Albert Pruett 

William H. Pool 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore