### THEATTORNEYGENERAL

OFTEXAS

April 2, 1949

Ron. Willim B. Teague, Chairman JudiciaryDistriotsCommittee of House 51st Legislature Austin, Texas OpinionRo;V-SO2

Dear Sir: Re: constitutionality of B,B. 677 creetinga County Court to be called the Probate Court of Harris County.

House Bill Ro. 677, to which your letter of request rerers, contains the followingtitle:

"AR ACT to establish the Probate Catlrt af Harris County; to define the jvrisdiationtherQQf and to conrorm to such ohange the juxisdiotioh of the County Court
or Rarrls County; add providing ror,the transfer of proceedingsand matters from the Couut,y

Court of Harris County to said Probate Court of Harris County, declaring the validity in transferredcases of writs and processes extant at the time of such transfer.;

providing for the practice and procedure in said Court, and for theterms of said Court, and the election,qualifi-~ cation and appointmentOf a Judge thereof, rnd tho axeoutien of a bond and oath of ofrice,~the

### rilling of vaoancies on said ,' Court, the election or appointmentof a Speolal iludgo;

the providing of a Clerk and the duties or the Sheriff a8 to suoh Court, and establishingthe fees and cornpensatiou to be paid the Judge thereof,and providing for-thepawent or such cornpen-. sation;~aoniorriag ,upea ,seber Jpdsss 113 said County power to sit and act as the Judge of said Court in certain c.ases;providing ror 

### eonrmt br ruoonstitutionality in said Act; and deolaringan emergenoy."Hon. THIllIam B. Teague - Page 2 (V-802 

### ‘1

Section 1 of the Act declares "there IS hereby created a County Court to be held in and for Harris County, to be called the,Probate Court of Harris County."

Section 2 thus defines the jurisdiction
or the Probate Court or Harris County:

"Section 2. The Probate Court of Harris County shall have the general jurisdictionof a Probate Court within the 1Imits of Harris County. It shall probate'wills,appoint guardiansof minors, idiots; lunatics,persons non compos mentis, and consnon drunkards,grant

let-' ters testamentaryand of administration, settle ackounts 

### 0r executors,transaat all business appertainingto deceased. persons, minors, idiots, lunatics,persons'noncomposmentis and common drunkards, Includingthe settlement,partition and distributionof estates of deceased persons, lunacy proceedingsand the apprenticing

of minors as provided by law; and on the first day of the InItial term of said Court, as herein provided, all such proceedingsand matters then pending In the County Court of Harris County shall be transferredto the said Probate Court of Harris County, alid all civil writs and processes theretofore issued by or out of said County Court in such matters or proceedings shall be-returnable to the Probate Court of Harris County, as though originally issued therefrom."

Seofion 3'deolares:

"8eotIon 3. The County Court or Ferris County shall retain, as heretofore, the powers and jurisdictionof said Court existingat the time oP the passage of this Act, other than those matters provided in Section 2 of this Act to be exercised by said Probate Court of Harris county. The County Judge of Harris County shall be the Judge of the,CountyCourt ofHon. William B, Teague - Page 3 (V-802)

Harris County, and all 

### ex officio duties of the County Judge of Harris County, as they now exist, shall be exercisedby the said Judge of the County Court or Harris County, except Insofar asthe same shall, by this Act, be committedto the Judge of the Probate Court or Harris Counsty. .NothingIn this Act contained shall be construedas'in anywise Impairingor 

### arrsating the 

### jmsaiotion or~the

### county Court atLaw of Harris'County, Texas, or ofthe County Court at Law No. 2 of Harris County, Texas."
Se&ion 5 givees

the Probate Court of Harris County jurisaictionto issue ,certain writs ana Section 6 p,resoribes

the terms of the Court.
Seotion 13 of the bill provides that In the
ease of the absence, dIsqualifIcation or incapacityof the Judge of the Probate Court of Harris County, either the Judge of the County Court at Law of Harris County
or the Judge of the County Court at Law No. Two of Harris Countymay sit and act as Judge of said Court and may hear and determine,either in his own courtroomor la the courtroomof said Court, any non-contestedprooeeaing thereinpending and enter any orders in the proceeding as the~Judgeofsaid Court might enter in person if presiding therein, except orders approvingclaims of final accounts,or dischargingguardians,administrators, or executors.

Section16 of Article V of the Texas Consti- ~tutiondeclares "the County Court shallhave the general jurisdiction

of a Probate Court; they shall probatewIlls, ‘appointguardians of minors, idiots, lunatics,persons non compos mentis and comnon drunkards,grant letters testamentary

and of administration, settle accounts of executors,transactall businessappertainingto deceased persons,minors, 

### idiots s lunatics, persons non compos mentis, and common drunkards,including the settlement, partition,and distributionof estates of deceasedpersons) and to apprentice minors, as provided by law; 0 em '

The bill does not attempt to abolish the County Court ror Harris County, but it creates another County Court to be known asthe~Pr0bat.e Court of Harris County,Hon. William B. Teague - Page 4 (V-802)

The Legislatureis as powerless to abolish the oonstitutionaljurisdiotion of a constitutional court as it is to abolish the court itself. It Is corollaryto this further to say that the Legislature, where there exists a constitutional court with a oonstitutional jurisdiction, is powerless to create another court of any name and give to it the exclusive jurisdiotionof the constitutional court.

In Reasonoverv. Reasonover,122 Tex. 512 50 S.W. 26 817 th S C t hefd that the Leg& lature cannot ~akeeaw$r%?m i”h’B District Court jurisdiction given It by the Constitutionover divoroe
oases. The analogy Is perfeot and is controlling of the present ,inqulry.We quote from the ‘R asonover case anticipatingthe possible auggestlon +ILiirs provision of Section 1 of ArticleV of the Constitutionla
an answer. THat Se&ion reads:

“The Legislature

,mayestablish such other Courts as it may deem neaessary and prescribe the jurisdiotfon and organization thereof, apa may conform the jurisdiction of the District and other inferior Courts thereto.m

..-, .~. ,. Speaking to the very point, Mr. Justice Pler-
.son said that this provision “was not intendedto authorize the Legislatureto deprive the regular District Cour~ts of any of the jurisdiction expresslyconferredon them by the Constitution; nor that the jurisdiction of the District Court should be conformed to that of the statutorycourts by destroying the constitutionaljurisdiction of the District Courts, or by transferring a part or all of it exclusivelyto a statutorycourt, but rather that such jurisdiction as fixed in the Constitution may be made concurrent with suoh other Courts created by statute.

. I

.

“If ‘conform’

means *to deprive,’the LegislatureZs empoweredto take away from
a regular District Court all the, jurisdic- ,’ tion given it by the Constitution, and confer it upon the statutorycourts; This would not be loonforming’ but ‘destroying’ the jurisdiction

of the District Court to the extent the Legislature might eleot. It is difficult to believe the people so intended, or that they intended to give to.



### Hon.William B. Teague - Page 5’ (V-602)

the word loonform*a meaning other than Its ordinarymeaning.”

Whatever one may think of the soundnessof the definitionof uoonformwas applied by Justice ‘Pierson,it is the established law of this State and
as such we must conform to it unless and until the Supreme Court itselr construesSeotion 1 differently.

But we are not left to analogies in the present’inquiry~.In State v, Gillette’sEstate, 10 S,W, 26 924, the precise questionwas involve8 and decided, Judge Critz, member of the Coauaission of Appeals to the Supreae Court,writing the opinion, said:

“If the act conferringprobate jurisdiction on the 

### SO-Oalled county oourt at law~of Eastland county can be sustainedat all, it must be done under that part of seotion 1 

### or artfole 5 

### or our state Constitution above referred to. 0 0 ., “However,this provisionof article 5 rust be read and construedso as to give effoot and meaning to sectlen 22 of the same article, as no constructionshould be indulged in that will render any part of article 5 reaningless. There is no escape from the ~onolusionthat it was the intent and express purpose of section 16 of article 5 of the Constitutionto confer exclusiveorfginal.probate jurisdiction

on the county courts. Any other construction of the severalprovisions of article 5 wbuld render section 22 of said article absolutely meaninglessand voida Se+ tion 22 of’article5 expresslyprovides that theLegislature has power to increase,dimin

### ish; or change the civil and criminal jurisdiction 

### or oounty courts and conform the jurisdiatlonof the districtand other inferior oourts to such change. 0 e D

“We therefore conclude that section 22 of article 5 of the Constitutionof this state, in so far as the probate jurisdiction of the county court is concerned,speaks exclusively
as to the right of the Legislatureto in- ,erease,

change, or diminish the jurisdiction

### Hon.WilliamB. Teague - Page 6 (V-802)

of such courts as prescribed aud defined underseotim l6 of the same article,and thatsaid

section P: speaks

exclusively

as to the right or power of the Legislatureto ooqform the jurisdiction of the district
or other inferiorcourts to such change.

. . .
“It follows, therefore,that the part of the aot which attempts to create the ‘CountyCourt at Law for Xastland Couuty,Texas,

t and give It probate jurisdiction,and also that part of the act which attempts to deprive the constitutional county court of Eastland county of the exclusiveprobate jurisdiotion~oonferred thereonby the Constitution,is unconstitutionaland void, and all pretended probate orders, judgments,and decrees entered by said county court at law with referenceto the estate of F. G. Gillette, deceased,were and are utterlywithout force and void.”

H. B. 677, 51st Legislature, which proposes to divest the County Court of probate juriadiction,and to create a separate “ProbateCourt”which would be given such jurisdiction,

is unoonstitutional. Article V, Section 16 of the Texas Constitutionoonfers that jurisdictionon the County Court, and it my~not be divested except by constitutional

amendment. Reasonoverv. Reaaimover, 122~

Tex. 512, 58 S W 2d 817 (1933); State. Gillette’sEstate,‘16S.W. 26 984 (Tex.Comm. App. 1928)

.
Yours very truly,

APPROVED:

%2;$ ATTORWFX GENERAL

0S:wb ATTOREEYGEWERAL OF TEXAS

BY ii!&i3e* Assistant