## 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 ofthe person and estate ofaperson ofunsound mind inthe court over which he otherwise presides. Your letter states that Mr. Harry L. Hinton will take office as County Judge ofLive Oak County in January, 1963, and that he is presently serving a guardian of the person and estate of one ofunsound mind.

Inparticular you ask, ‘I.

. . ifthere is any prohibition against him serving as such guardian during the time he is County Judge ifhe disqualified himself as Judge inthat particular case and another judge is appointed by the Governor. ”

Section 1’6ofArticle V ofthe Constitution of Texas, is inpart as follows: .I

“The Gounty Court shall have the general jurisdiction ofa Probate bourt; they shall probate wills, appoint guardian ofminors, idiots, lunatics, persons non compos mentis and common drunkards, grant letters testamentary and of administration, settle accounts ofexecutors, 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 ofdeceased persons and to apprentice minors, as provided by law;.

. .”

Article 319, Vernon’s Civil Statutes, ‘$tates: $o judge or clerk ofthe 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 inany Court of record inthiqSt.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 inany 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 topractice law shall be allowed toappear and practice as an attorney at law inany District Court, Court of Civil Appeals, Court of Criminal Appeals, or the Supreme Court unless the Court ofwhich such clerk is clerk has neither original nor appellate jurisdiction. ” (Emphasis added)

The underscored portion ofthe above statute leaves no doubt that a County Judge is precluded from practicing law inany County Court, except inthose cases where thenCourt over which he presides has neather original nor appellate jurisdiction.

This conclusion ra!ses the question ofwhether or not serving as guardian ofthe person and estate ofa person ofunsound mind constitutes the practice oflaw. 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 ofkin) 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 ofthe 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, itis our conclusion that the Texas Probate Code has no restriction against a qualified layman serving as a guardian; and that such service, ofitself, does not constitute the practice oflaw.

We are therefore ofthe opinion that Article 319, Vernon’s Civil Statutes, does not prohibit a County Judge who is also alicensed attorney from serving as guardian of the person and estate ofa person ofunsound mind in the court over~which he presides ifthe following condltions are met:Hon. W. L. Hardwick, page 3 (WW-1505)

1. Whenever amatter relating to the guardianship is broaght before the court, the County Judge must disqualify himself according to the provisions ofArticle 5, Section 11 ofthe Constitution of Texan. which provides inpart: “No judge shall sit inany case wherein he may be interested.

. .”

2. Whenever amatter relating to the guardianship is brought before the court, or whenever the provisions ofthe Texas Probate Code require some action by the County Judge concerning the guardianship, then the provisions ofArticle 1932, Vernon’s Civil Statutes, must be followed.Article 1932 reads as follows:

“When a county judge is disqualified toact inany 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 inthe budget of the county a sufficient sum for the payment ofthe special judge orjudges 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 alicensed attorney, the County Judge must be represented, as guardian, by another licensed attorney.Hon. W. L. Hardwick, page 4, ~(WW-1505)

SUMMARY The provisions ofArticle 319, Vernon’s Civil Statutes, do noteprohibit a County Judge who is also alicensed attorney from serving as guardian ofthe person and estate ofaperson ofunsound mind inthe court over which he may preside ifthe following conditions are met:

1. The County Judge must comply with the provisions ofArticle 5, Section 11 ofthe Constitution of Texas. 2. The provisions ofArticle 1932, Vernon’s Civil Statutes, must be followed. 3. Inguardianship matters brought before the court requiring presentation by alicensed 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