May 19, 1975

The Honorable Henry Wade District Attorney Sixth Floor, Records Buildihg Dallas, Texas 75202 Opinion No. H- 609 Re: Whether Domestic Relations Judges may use salaried employees hired by the commissioners court for appointment as masters in chancery? Dear Mr. Wade:

You advise that because of extreme congestion existing inthe domestic relations courts of Dallas County, the Dallas County Commissioners Court has been asked to authorize and fund afull-time, salaried employee for each domestic relations court tobe “available ”for appointment by that court as amaster in chancery under Rule 171ofthe Texas Rules of Civil Procedure. A proposed Commissioners Court order which would doso has been supplied us. Itprovides that the employee is to be designated a “Master” and be under the employment and direction ofthe County Clerk. According to the proposed order, his functions would include:

. .acting as afact-finder in: a) uncontested divorces, including waivers, agreed matters, defaults, and publications b) temporary matters including injunctions, temporary alimony, temporary child support, and temporary use ofproperties c) after-judgment matters, including contempt, visitation matters, and modification matters. You ask: Under the facts stated, would itbe proper&r aJudge of aDomestic Relations Court to use a salaried employee hired by the Commissioners’ Court for appointment as a master in chancery infuture cases toperform the functions permitted by Rule 171, T.R. C. P. ?

p. 2696The Honorable Henry Wade - Page 2 (H-609)

The Texas Rules of Civil Procedure have been promulgated by the Texas Supreme Court pursuant to art,icle 1731a, V. T. C.S. They have the force of law. Missouri Pacific Railroad Company v. Cross, 501 S.W. 2d 868 (Tex. sup. 1973).

Rule 171ofthe Texas Rules of Civil Procedure reads:

The court may, in exceptional cases, for good cause appoint a,master in chancery, who shall be acitizen ofthis State, and not an attorney for either party to the action, nor related to either party, who shall perform all ofthe duties required ofhim by the court, and shall be under horders ofthe court, and have such power as the master of chancery has inacourt of equity. The order of reference tothe master may specify or limit his powers, and may direct him to report only upon particular issues, or to do or perform particular acts, or to receive and report evidence only and may fix the time and place for beginning and closing the hearings, and for the filing ofthe master’s report. Subject to the limitations and specifications stated inthe order, the master has and shall exercisk the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary oi proper for the efficient performance ofhis duties under the order. He may require the production before him of evidence upon all matters embraced inthe reference, including the production ofbooks, papers, vouchers, documents and other writings applicable thereto. He may rule upon the admissibility of evidence, unless otherwise directed by the order of reference and has the authority to putwitnesses on oath, and may, himself, examine them, and may call the parties to the action and examine them upon oath. When aparty so requests, the master shall make arecord ofthe evidence offered and excluded inthe same manner as provided for a court sitting inthe trial ofa case. The clerk ofthe court shall forthwith furnish the master with acopy ofthe order of reference. The parties may procure the attendance ofwitnesses before the master by the issuance and service ofprocess as provided by law and these rules.

pm2697The Honorable Henry Wade - Page 3 (H-609)

The court may confirm, modify, correct, reject, reverse or recommit the report, after it is filed, as the court may deem proper and necessary inthe particular circumstances ofthe case. The court shall award reasonable compensation to such master to be taxed as costs of suit. (Emphasis added). Your letter advises: Although the salary ofthe employee assigned to a particular Domestic Relations Court would be paid in full by the County of Dallas, anappropriate order of reference to the master would be issued by the court for each case inwhich the service of amaster is required. Itis hoped by the Courts and Bar Association Members that extensive use ofmasters can ‘bemade to assist inthe reduction ofthe large number of cases now pending on the dockets. Changes inprovisions ofthe Family Code have greatly increased the work load of the Judges~and Members ofthe Bar. The thousands of cases pending on the dockets have created a situation which almost denies access to the courts by litigants. More often than not, the health, welfare, and safety of children are directly involved and the delays caused by clogged dockets are sometimes detrimental.

. . . . . As apractical matter, itwould seem that the great need ofthe litigants, and their dependents, for speedy. determinations compel the use of masters. Itis submitted that the pressing needs ofthe litigants are so great that every case falls within the requirements ofthe Rule as an

“exceptional” one and that “good cause” for the appointment of The appointment by acourt of aqualified county employee to act in some capacity as an officer ofthe court for the duration of aparticular case does not necessarily create dual employment problems or conflict of interest problems. SeeAttorney General Letter Advisory 93 (1975). We need not decide here whether the repeated appointment of apart:icular county employee to serve as amaster a chancery in every case coming before a domestic relations court would enroluter such problems, ‘Ve !!O!?OYr?Iirh those *ssues because we believe Rule 171requirements of “exceptlonai~ case” and “goodThe Honorable Henry Wade - Page 4 (H-609) .

cause” prevent such apractice. See Cregler v. Hyde, 280 S.W. Zd 783 (Tex. Civ. App. -- Waco 1955 writref., n.r. e.).

InEx Parte Odom, 271 S.W. 2d 796 (Tex. Sup. 1954), the Texas Supreme Court noted that Texas Rule 171was based inpart on Rule 53 ofthe Federal Rules of Civil Procedure. The United States Supreme Court has said that court congestion is not initself such an exceptional circumstance as towarrant the reference oftrial matters to amaster under the federal rule. La Buy v. Howes Leather Co., 352 U.S. 249 (1957). Cf., L. A. Brush Corp. v. James, 272 U.S. 701 (192.7). For examples of cases which Texas appellate courts have indicated fall into the “exceptional case” category, see Housing Authorit 1, civ. App. 325 S.W. 2d 880 (Tex. Strickland Transportation Co. v. Navajo Frkight Lines, Inc., 387 S.W. 2d 720 (Tex. Civ. App. -- Dallas 1964, nowrit).

Masters have been employed by courts in domestic relations matters. See Roberson v. Roberson, 42~0S.W. Zd495 (Tex. Civ. App. -- Houston mh Dist. J1967, writ ref., n.r. e.). But when so employed, they are employed by the court which referred the matter to them and the award or refusal to them offees to be taxed as costs is within the sound discretion of the referring court. Roberson v. Roberson, supra. Whether amaster shall be appointed, and if so, who shall be appointed and what his duties shall be, and what compensation he shall receive therefor, are all matters within the discretion of the trial courts, as guided by Rule 171. Huber v. Buder, 434 S.W. 2d 177 (Tex. Civ. App. -- Ft. Worth 1968, writ ref., n.r. e.). The Commissioners Court order could not displace such authority.

In Cregler v. Hyde, supra, the trial court upon its own motion appointed amaster in chancery to hear all issues and to file findings offact thereon ina suit to set aside atrustee’s deed for land. The plaintiff objected and appealed. The Court of Civil Appeals observed that atrial court is not authorized under Rule 171to appoint amaster in chancery inother than x+xceptional cases, and not then except for good cause.

We have no doubt that the situation which the proposed commissioners court order is designed to meet is one demanding a solution, but we do not believe Rule 171can accomodate the plan proposed. See Guittard, Court Reform Texas Style. 21S.W. L. J. 451, 485 (1967); Attorney Genera~nion v-846(1949); Morrow v. Corbin, 62 S.W. 2d 641 (Tex. Sup. 1933).

p. 2699. *

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I The Honorable Henry Wade - Page 5 (H-609)

SUMMARY Rule 171, Texas Rules of Civil Procedure, authorizes the appointment of amaster in chancery by domestic relations **courts** but oniy in exceptional cases for good cause. Court congestion does not in itself make every case an exceptional case nor furnish good cause for such an appointment.

/ / Attorney General of Texas -PROVED: 

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Opinion Committee jwb