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 in the 

domestic relations courts of Dallas County, the Dallas County Commissioners 

Court has been asked to authorize and fund a full-time, salaried employee for 

each domestic relations court to be “available ” for appointment by that court 

as a master in chancery under Rule 171 of the Texas Rules of Civil Procedure. 

A proposed Commissioners Court order which would do so has been supplied 

us. It provides that the employee is to be designated a “Master” and be 

under the employment and direction of the County Clerk. According to the 

proposed order, his functions would include: 

. . acting as a fact-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 

of properties 

c) after-judgment matters, including contempt, visitation 

matters, and modification matters. 

You ask: 

Under the facts stated, would it be proper&r a Judge 

of a Domestic Relations Court to use a salaried employee 

hired by the Commissioners’ Court for appointment as a 

master in chancery in future cases to perform the functions 

permitted by Rule 171, T. R. C. P. ? 

p. 2696 
The 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 171 of the Texas Rules of Civil Procedure reads: 

The court may, in exceptional cases, for good cause 

appoint a, master in chancery, who shall be a citizen 

of this State, and not an attorney for either party to the 

action, nor related to either party, who shall perform 

all of the duties required of him by the court, and shall 

be under horders of the court, and have such power as the 

master of chancery has in a court of equity. 

The order of reference to the 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 of the master’s report. Subject to the limitations 

and specifications stated in the 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 

of his duties under the order. He may require the 

production before him of evidence upon all matters embraced 

in the reference, including the production of books, 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 put witnesses on oath, and may, himself, 

examine them, and may call the parties to the action and 

examine them upon oath. When a party so requests, the 

master shall make a record of the evidence offered and 

excluded in the same manner as provided for a court 

sitting in the trial of a case. 

The clerk of the court shall forthwith furnish the master 

with a copy of the order of reference. 

The parties may procure the attendance of witnesses before 

the master by the issuance and service of process as provided 

by law and these rules. 

pm 2697 
The 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 in the 

particular circumstances of the 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 of the employee assigned to a 

particular Domestic Relations Court would be paid in 

full by the County of Dallas, an appropriate order of 

reference to the master would be issued by the court 

for each case in which the service of a master is 

required. It is hoped by the Courts and Bar Association 

Members that extensive use of masters can ‘be made to 

assist in the reduction of the large number of cases now 

pending on the dockets. Changes in provisions of the 

Family Code have greatly increased the work load of 

the Judges~and Members of the 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 a practical matter, it would seem that the great 

need of the litigants, and their dependents, for speedy. 

determinations compel the use of masters. It is submitted 

that the pressing needs of the litigants are so great that 

every case falls within the requirements of the Rule as an 

“exceptional” one and that “good cause” for the appointment 

of 

The appointment by a court of a qualified county employee to act in 

some capacity as an officer of the court for the duration of a particular 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 a part:icular county employee 

to serve as a master a chancery in every case coming before a domestic 

relations court would enroluter such problems, ‘Ve !!O !?OY r?Iirh those *ssues 

because we believe Rule 171 requirements of “exceptlonai~ case” and “good 
The Honorable Henry Wade - Page 4 (H-609) 

. 

cause” prevent such a practice. See Cregler v. Hyde, 280 S. W. Zd 783 

(Tex. Civ. App. -- Waco 1955 writref., n. r. e. ). 

In Ex Parte Odom, 271 S. W. 2d 796 (Tex. Sup. 1954), the Texas 

Supreme Court noted that Texas Rule 171 was based in part on Rule 53 of the 

Federal Rules of Civil Procedure. The United States Supreme Court has 

said that court congestion is not in itself such an exceptional circumstance 

as to warrant the reference of trial matters to a master 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, no writ). 

Masters have been employed by courts in domestic relations matters. 

See Roberson v. Roberson, 42~0 S. W. Zd 495 (Tex. Civ. App. -- Houston 

mh Dist. J 1967, 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 of fees to be taxed as costs is within the sound discretion of 

the referring court. Roberson v. Roberson, supra. Whether a master 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 a master in chancery to hear all issues and to file findings of fact 

thereon in a suit to set aside a trustee’s deed for land. The plaintiff objected 

and appealed. The Court of Civil Appeals observed that a trial court is not 

authorized under Rule 171 to appoint a master in chancery in other 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 171 can accomodate the plan proposed. See Guittard, Court 

Reform Texas Style. 21 S. 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 
. * 

* 

I 

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

SUMMARY 

Rule 171, Texas Rules of Civil Procedure, authorizes 

the appointment of a master 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. 

/ / Att orney General of Texas 

-PROVED: 

v 

Opinion Committee 

jwb