## TEIEATI-ORNEYGENERAL OF TEXAS

June 21, 

### 1949

Hon. Charles R. Jones senate committee on counties andCounty Boundaries 51st Legislature Austin, Texas 

### OpinionBo.V-846.
Rer Constitutionality of H. B. 912 authorizing the County Judge of counties of 500,000 or morepopulation to appoint a master in chancery to perform probate duties.
Dear Senator:

You request an opinion a6 to the constitutionality of HouseBill lie. 912which, omitting the title, the enacting, the emergency, and the severability clauses, is as follows:

"Section 1. This Act shall apply only In counties having a population of five hundred thousand (500,000) or more, according to the last preceding Federal Census.
"Sec.2. The County Judge in such counties shall have authority to appoint amaster In chancery to perform any andall of the duties required of the judge of the County Court sitting in probate matters. The order of appointment mayauthoriee such special master to do or perform particular acts, or it mayin general terms authorize andrequire the special master to do or perform certain general types of acts In causes and proceedings then pending in said County Court. Themaster shall keep a memorandum showing each act performed by him, stating the general nature, and at least once each month, shall file a complete statement andreport with the County

### HOEI. Charles R. Jones, page 2 (V-846)

Judge listing the date of the act Andy its general nature. All actions, decisions anddeterminations by such special master shall be subject to examination andapproval by the CountyJudgeQ Remayapprove themseparately,


### orby a general order madeonce each month, Whensny order or action is madeby the special master, It maybe appealed from to the sameextent and in the samemauneras if it hadbeen madeby the County Judge. At aug ttie within thirty (30) days after the making of any order or the taking of any action by such special master, OP if such order or action is appealed from, then at any time before
an appeal bond or application for cePtlorar5 is filed, the CountyJudge mayonhis ownmotion, or onmotion of any lntepested party, set aside any actioq of the special master.

“Sec. 3. (Provides for compensation and Is not relevant here; it is therefore omitted in the interest of brevity.)

‘See, 4, Whenthe County Judge is absent,
or is unable to act in anyprobate matter pending In the County Court, then the judge of any County Court at Law(without regard to the exact nameof such County Court at Law)may sit as judge of the County Court, andmayheap any cause, OP anypart of any cause, 

### orproceeding pending on the probate docket, or make any order, or sit in any cause in which the County Judge would have powepto act0 When sitting In anyprobate matter as CountyJudge, anyjudge of anyCounty Court at Lawshall be invested with the samepower, authority and jurisdiction as the County Judge sitting as the judge of the probate court. Whenany order Is madeor entered In the County Court by the judge of anyCounty Court at Law, it shall be presumed that the CountyJudge was absent or unable to act in the matter in which such order was so madeD In addition to any other remedies provided by law, anyperson whomay consider himself aggrieved by any such order madeby ajudge of the County Court at Law sitting as e of the County Court, may withln ten days after the date of suchHon. Charles R. Jones, page 

## 3(V-846)

order or proceeding, apply to the County Judge to have such order set aside, modified, vacated or annulled as the circumstances mayrequire; OP, sn appeal maybe prosecuted, or nit of certiorari applied for, in the same mannerandunder the sameregulations as is nowprovided by law in case of orders and decisions of judges of the Couuty Court in probate matters.*
Section 2 of the Act provides that the County Judge shall have authority to appoint a master in chancery to perform anyandall of the duties requlred of the Judge of the County Court sitting in probate 

### matters andprovit¶es that all actions, decisions and determinations by such special master shall be subject to examlnation andapproval by the County Judge. Special provlsion is madefor anappeal from an order of a special master in the samemanneras if it hadbeen madeby the County Judge.

Section 4declares that whenthe County Judge is absent 

### or unable to act, the Judge of any County Court at Lawmayhear any cause or proceeding pending onthe probate docket, 

### OPmakeany order which the County Judge would have power to make, granting unto said Judge of any County Court at Lawthe samepower, authority and jurisdiction as the County Judge sitting as the Judge of
a probate court, Because of the holding herein, it is not necessary to pass upon the question as to whether this would constitute the holding of two offices of emolumentby the sameperson in violation of Section 40 of Article XVI of the Texas Constitution.

Section 

## 16of Article Vof the Constitution of Texas is in part as follows:

"The County Court shall have the general jurisdiction of a probate court; they shall probate wills, appofnt guardians of minors, Idiots, lunatics, persons non compos mentls and commondrunkards, 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, partitionHon. ChaPlea R. Jones, page 

## 4(V-846)

anddistribution of estates of deceased persons andto apprentice mlnors, as provicled by law; 0o

-”
Section ~22,Article Vof the Texas Constitution is as follows:

“The Legislature shall have power, by local or general law, to Increase, dltinish or change the civil and criminal jurisdiction of county tour a; an in cases of any such change of jurisdiction, the Legislature shall also conform the jurlsdlctlon of the other courts to such change.’ (Italics added throughout this opinion.)
In State v, Gilletteas Estate, 10S.P.2d 984 (Comm.App, 1928) the court pointed out that the jurlsdiction of the County Court was three-fold: civil, crlminal, andprobate. UnderSection 22above, the Legislature maychange the civil and crQnina1 jurisdiction. Rut it maynot change the obate jurlsdiction,because of the positive language 16above andbecause Section 22 says the Legislature may(only) change the

“civil and criminal jurisdiction.” In this regard Judge Critz said:I(0DDThere is no escape from the conclusion that It wasthe intent and express pun pose of section 16 of article 5 of the Constltutlon to confer exclusive oroiginal jurisdiction onthe county courts. E$%er construction of the several provisions of apt% cle 

## 5would z%nder section 22 of said %Pticle absolutely meaningless andvoid. Section 22 of article 

## 5expressly provides that the Legislature has power to illcrease, diminish, or change the civil and criminal juPlsdiction of county cot&s and conform the jurisdiction of the district and other IMerior courts to such change. If the Legislature has the power or authority under section 1 of article 5, which is a general provision, to ipcrease, dllainish, OP change the probate jur4sdiction of the couaty court or conform the jurisdiction of the district or other inferior courts to such change, then section 22would be ameaningless and idle provision0.

Hon. Charles R. Jones, page 

### 5 (V-846)

“lie therefore conclude that section 22 of article 

### 5of the Constitution of this state, In so far a8 the probate jurisdiction of the county court is concerned, speaks exclusively
as to the right of the Legislature to increase, change, or diminish the jurisdiction of such courts as prescribed and defined under section 

### 16of the samearticle, and that said section 22 speaks exclusively as to the right or power of the Legislature to conform the jurisdiction of the district or other Inferior courts to such change. Section 22 limits the power of the Legislature in this respect to the civil and CrilPinal jurisdiction of the county courta

follows that any effort on the part of the Legislature to increase, diminish,
or change the robate jurisdiction of the county court of Rabcounty or to confer such probate jurisdiction onany’other court, would be void, as contrary to the fundamental law of the land. ”
Section 2of said bill provides that aThe County Judge in such counties shall have authority to appoint a master In chancery to perform any andall of the duties requlred.of the judge of the county Court slttinn in D bat tt It th I delegation 

## fth8 exclugflve &.%d%ion ofa~heo~o~~yaJudge in 8iolation of Section 16 of Article Vof the Constitution of Texas.
Even though the County Judge might not appoint !* amaster in chancery to perform all of those acts pro-

‘vided for In Section 2, the mere fact that he is given such power renders the bill Invalid in that regard. The possibility of approval of the master’s action by the County Judge does not affect this conclusion.

Furthermore, it is provided that “Whenany order or action is madeby the special master, it maybe appealed from to the sameextent and in the samemauner as if It hadbeen madeby the County Judge.” This indicates an assumption of jurisdiction by the master anda delegation by the county judge of duties Imposed on him by the Constitution. TheLegislature might authorize the County Judge to appoint amaster in chancery to assist himin finding facts; but the bill in question does not limit the duties of the master to that of a fact.

Hon. Charles R. Jones, page 

### 6 (V-846)

finder. Onthe contrary, it authorizes final action by him on such probate matters as shall have been delegated to himby the County Judge aad thus the performance of
a duty which is the exclusive prerogative of the County Judge.
It is therefore our opinion that In the respects mentioned House Bill Ho. 912 is unconstitutional being in violation of Section 

### 16of Article Vof the Constitution of Texas granting exclusive probate jurisdiction to the County Court.
SUMMARY
HouseBill Ho. 912, 51st Legislature, which proposes to authorize the County Court to appoiut a master in chancery to perform the probate duties exclusively required of the Judge of the County Court is umonstituMona1 andvoid, being in violation of Seation 16. Article Vof the Constitution of Texas. --State v. Mllette*s Estate, 10S.U. 26 

### 984 (&mm. APP. 19281
Yours very truly,
ATTOFdEXG3I9ERALOFTYXAS

B?:bh Assistant /

ATTORREWMRRAL