THEATTORNEYGENERAL 

OFTEXAS 

April 2, 1949 

Ron. Willim B. Teague, Chairman 

Judiciary Distriots Committee of House 

51st Legislature 

Austin, Texas 

Opinion Ro;V-SO2 

Dear Sir: 

Re: constitutionality of B,B. 

677 creeting a County 

Court to be called the 

Probate Court of Harris 

County. 

House Bill Ro. 677, to which your letter of 

request rerers, contains the following title: 

"AR ACT to establish the Probate 

Catlrt af Harris County; to define the jvrisdiation therQQf and to conrorm to such 

ohange the juxisdiotioh of the County Court 

or Rarrls County; add providing ror,the 

transfer of proceedings and matters from 

the Couut,y Court of Harris County to said 

Probate Court of Harris County, declaring 

the validity in transferred cases 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 appointment Of a Judge thereof, 

rnd tho axeoutien of a bond and oath of ofrice,~the rilling of vaoancies on said ,' 

Court, the election or appointment of a 

Speolal iludgo; the providing of a Clerk 

and the duties or the Sheriff a8 to suoh 

Court, and establishing the fees and cornpensatiou to be paid the Judge thereof,and 

providing for-the pawent 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 deolaring an 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 jurisdiction of a Probate Court within the 

1Imits of Harris County. It shall probate'wills, appoint guardians of minors, 

idiots; lunatics, persons non compos 

mentis, and consnon drunkards,grant let-' 

ters testamentary and of administration, 

settle ackounts 0r executors, transaat 

all business appertaining to deceased. 

persons, minors, idiots, lunatics, persons'non compos mentis and common drunkards, Including the settlement, partition and distribution of estates of deceased persons, lunacy proceedings and 

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 proceedings and matters 

then pending In the County Court of Harris County shall be transferred to 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 jurisdiction of 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,County Court of 
Hon. 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 exercised by 

the said Judge of the County Court or Harris County, except Insofar asthe same 

shall, by this Act, be committed to the 

Judge of the Probate Court or Harris Counsty. .Nothing In this Act contained shall 

be construed as'in anywise Impairing or 

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 jurisaiction to 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 incapacity of 

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 County may sit and act as Judge of said Court and 

may hear and determine, either in his own courtroom or 

la the courtroom of said Court, any non-contested prooeeaing therein pending and enter any orders in the proceeding as the~Judge ofsaid Court might enter in person if presiding therein, except orders approving claims 

of final accounts, or discharging guardians, administrators, or executors. 

Section16 of Article V of the Texas Consti- 

~tution declares "the County Court shall have the general 

jurisdiction of a Probate Court; they shall probatewIlls, 

‘appoint guardians of minors, idiots, lunatics, persons 

non compos mentis and comnon drunkards, grant letters 

testamentary and of administration, settle accounts of 

executors, transact all business appertaining to deceased persons, minors, idiots s lunatics, persons non compos 

mentis, and common drunkards, including the settlement, 

partition, and distribution of estates of deceased persons ) 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 Legislature is as powerless to abolish 

the oonstitutional jurisdiotion of a constitutional 

court as it is to abolish the court itself. It Is 

corollary to 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 jurisdiotion of the constitutional court. 

In Reasonover v. 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 Constitution over divoroe 

oases. The analogy Is perfeot and is controlling of 

the present ,inqulry. We quote from the ‘R asonover 

case anticipating the possible auggestlon +ILiirs provision of Section 1 of Article V of the Constitution la 

an answer. THat Se&ion reads: 

“The Legislature ,may establish 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 intended to authorize the Legislature to deprive the regular District 

Cour~ts of any of the jurisdiction expressly conferred on 

them by the Constitution; nor that the jurisdiction of 

the District Court should be conformed to that of the 

statutory courts by destroying the constitutional jurisdiction of the District Courts, or by transferring a 

part or all of it exclusively to a statutory court, 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 

Legislature Zs empowered to take away from 

a regular District Court all the, jurisdic- ,’ 

tion given it by the Constitution, and confer it upon the statutory courts; 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 ordinary meaning.” 

Whatever one may think of the soundness of 

the definition of uoonformw as 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 construes Seotion 1 differently. 

But we are not left to analogies in the present’inquiry~. In State v, Gillette’s Estate, 10 S,W, 26 

924, the precise question was involve8 and decided, 

Judge Critz, member of the Coauaission of Appeals to the 

Supreae Court, writing the opinion, said: 

“If the act conferring probate jurisdiction on the SO-Oalled county oourt at 

law~of Eastland county can be sustained at 

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 provision of article 5 

rust be read and construed so as to give effoot and meaning to sectlen 22 of the same 

article, as no construction should be indulged in that will render any part of article 

5 reaningless. There is no escape from the 

~onolusion that it was the intent and express 

purpose of section 16 of article 5 of the Constitution to confer exclusive orfginal.probate jurisdiction on the county courts. Any 

other construction of the several provisions 

of article 5 wbuld render section 22 of said 

article absolutely meaningless and voida Se+ 

tion 22 of’article 5 expressly provides that 

theLegislature has power to increase, diminish; or change the civil and criminal jurisdiction or oounty courts and conform the jurisdiatlon of the district and other inferior 

oourts to such change. 0 e D 

“We therefore conclude that section 22 

of article 5 of the Constitution of this state, 

in so far as the probate jurisdiction of the 

county court is concerned, speaks exclusively 

as to the right of the Legislature to in- 

,erease, change, or diminish the jurisdiction 
Hon. William B. Teague - Page 6 (V-802) 

of such courts as prescribed aud defined 

under seotim l6 of the same article, and 

that said section P: speaks exclusively as to 

the right or power of the Legislature to 

ooqform the jurisdiction of the district 

or other inferior courts to such change. 

. . . 

“It follows, therefore, that the 

part of the aot which attempts to create 

the ‘County Court 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 exclusive probate jurisdiotion~ oonferred thereon by the Constitution, is unconstitutionaland void, and all pretended probate orders, judgments, and decrees 

entered by said county court at law with 

reference to the estate of F. G. Gillette, 

deceased, were and are utterly without 

force and void.” 

H. B. 677, 51st Legislature, which 

proposes to divest the County Court of probate juriadiction,and to create a separate 

“Probate Court” which would be given such 

jurisdiction, is unoonstitutional. Article 

V, Section 16 of the Texas Constitution oonfers that jurisdiction on the County Court, 

and it my~not be divested except by constitutional amendment. Reasonover v. Reaaimover, 122~ Tex. 512, 58 S W 2d 817 (1933); 

State. Gillette’s Estate,‘16 S.W. 26 984 

(Tex. Comm. App. 1928) . 

Yours very truly, 

APPROVED: 

%2;$ 

ATTORWFX GENERAL 

0S:wb 

ATTOREEY GEWERAL OF TEXAS 

BY 

ii!&i3e* 

Assistant