TEIEATI-ORNEYGENERAL 

OF TEXAS 

June 21, 1949 

Hon. Charles R. Jones 

senate committee on counties 

and County Boundaries 

51st Legislature 

Austin, Texas Opinion Bo. V-846. 

Rer Constitutionality of H. B. 

912 authorizing the County Judge of counties of 

500,000 or more population 

to appoint a master in 

chancery to perform probate duties. 

Dear Senator: 

You request an opinion a6 to the constitutionality of House Bill lie. 912 which, 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 a master 

In chancery to perform any and all of the duties required of the judge of the County 

Court sitting in probate matters. The order 

of appointment may authoriee such special master to do or perform particular acts, or it 

may in general terms authorize and require the 

special master to do or perform certain general types of acts In causes and proceedings 

then pending in said County Court. The master 

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 and report 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 and determinations by such special master shall be 

subject to examination and approval by the 

County Judge Q Re may approve them separately, 

or by a general order made once each month, 

When sny order or action is made by the special master, It may be appealed from to the 

same extent and in the same mauner as if it 

had been made by 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 County Judge may on his own motion, or on motion 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, When the County Judge is absent, 

or is unable to act in any probate matter 

pending In the County Court, then the judge of 

any County Court at Law (without regard to the 

exact name of such County Court at Law) may 

sit as judge of the County Court, and may heap 

any cause, OP any part of any cause, or proceeding pending on the probate docket, or make 

any order, or sit in any cause in which the 

County Judge would have powep to act 0 When 

sitting In any probate matter as County Judge, 

any judge of any County Court at Law shall be 

invested with the same power, authority and 

jurisdiction as the County Judge sitting as 

the judge of the probate court. When any order Is made or entered In the County Court by 

the judge of any County Court at Law, it shall 

be presumed that the County Judge was absent 

or unable to act in the matter in which such 

order was so made D In addition to any other 

remedies provided by law, any person who may 

consider himself aggrieved by any such order 

made by a judge of the County Court at Law 

sitting as e of the County Court, may 

withln ten days after the date of such 
Hon. 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 may require; OP, sn appeal may be prosecuted, or 

nit of certiorari applied for, in the same 

manner and under the same regulations as is 

now provided 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 any and all of the duties requlred of 

the Judge of the County Court sitting in probate matters 

and provit¶es that all actions, decisions and determinations by such special master shall be subject to examlnation and approval by the County Judge. Special provlsion is made for an appeal from an order of a special 

master in the same manner as if it had been made by the 

County Judge. 

Section 4 declares that when the County Judge 

is absent or unable to act, the Judge of any County Court 

at Law may hear any cause or proceeding pending on the 

probate docket, OP make any order which the County Judge 

would have power to make, granting unto said Judge of 

any County Court at Law the same power, 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 emolument by the same person in violation of Section 40 of 

Article XVI of the Texas Constitution. 

Section 16 of Article V of 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 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 
Hon. ChaPlea R. Jones, page 4 (V-846) 

and distribution of estates of deceased persons and to apprentice mlnors, as provicled by 

law; 0 o -” 

Section ~22, Article V of 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, 10 S.P.2d 984 

(Comm. App, 1928) the court pointed out that the jurlsdiction of the County Court was three-fold: civil, crlminal, and probate. Under Section 22 above, the Legislature may change the civil and crQnina1 jurisdiction. 

Rut it may not change the obate jurlsdiction,because 

of the positive language 16 above and because 

Section 22 says the Legislature may (only) change the 

“civil and criminal jurisdiction.” In this regard Judge 

Critz said: 

I( 0 D D There is no escape from the conclusion that It was the intent and express pun 

pose of section 16 of article 5 of the Constltutlon to confer exclusive oroiginal 

jurisdiction on the county courts. E$%er 

construction of the several provisions of apt% 

cle 5 would z%nder section 22 of said %Pticle 

absolutely meaningless and void. Section 22 

of article 5 expressly 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 22 would be a meaningless 

and idle provision0 
. 

Hon. Charles R. Jones, page 5 (V-846) 

“lie therefore conclude that section 22 of 

article 5 of 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 

16 of the same article, 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 on any’other court, would 

be void, as contrary to the fundamental law of 

the land. ” 

Section 2 of said bill provides that aThe 

County Judge in such counties shall have authority to 

appoint a master In chancery to perform any and all of 

the duties requlred.of the judge of the county Court 

slttinn in D bat tt It th I delegation 

f th 8 exclugflve &.%d%ion ofa~heo~o~~yaJudge in 

8iolation of Section 16 of Article V of the Constitution 

of Texas. 

Even though the County Judge might not appoint 

!* a master 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 “When any order or action is made by the special master, it may be 

appealed from to the same extent and in the same mauner 

as if It had been made by the County Judge.” This indicates an assumption of jurisdiction by the master and a 

delegation by the county judge of duties Imposed on him 

by the Constitution. The Legislature might authorize 

the County Judge to appoint a master in chancery to assist him in 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. On the contrary, it authorizes final action by 

him on such probate matters as shall have been delegated 

to him by 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 16 of Article V of the 

Constitution of Texas granting exclusive probate jurisdiction to the County Court. 

SUMMARY 

House Bill 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 and void, being in violation of Seation 16. Article V of the Constitution of 

Texas. --State v. Mllette*s Estate, 10 S.U. 

26 984 (&mm. APP. 19281 

Yours very truly, 

ATTOFdEXG3I9ERALOFTYXAS 

B?:bh Assistant / 

ATTORRE WMRRAL