R-59 

Tmm A-rrox~~y GENERAL 

OF TEXAS. 

PRICE DANIEL 

*TTORNEY GENERAL 

Hon. Weldon B. Davis 

County Attorney 

Austin County 

Bellville, Texas 

Auerm aa. - 

Maroh 8, 1947 

Opinion No. Q-79 

Re: Construction of Article 15, 

Revised Civil .Staturee of 

Texas, qualifications of a 

county judge under various 

ciroumstances. 

Dear Mr. Davis: 

__ 

.I ,. 

Your letter or January 19th to this Department, 

requesting a oonstruotion of ,Artlale 15, Revised Civil 

Statutes, 1925, in part is as r0ii0ws: 

“1. Is tbe present County Judge under the 

above statutes disqualified from acting as judge 

in any subsequent probate matter wherein he has 

heretofore acted es counsel and especially in 

new matters affecting the probate matter In which 

the present said county judge has n.ever advised. 

“The present County Judge, Honorable :?I. C. 

Bryan, was before January 1, 1947, an attorney in 

thts county. As en attorney, he imndled numerous 

probate matters, many of which are still in court, 

such as guardianship matters ,. administration of 

estates, eto. As an attorney In a case he naturally aevlsed with his olients, simed. papers as 

attorney ror his Client, etc. Now the question 

is ,. in t&se probate matters, where he has ,formerly wpreseated 8.. guardian, eraoutor or administrator, is. he ww as County Jld’gs”qualified to enter 

orders ae4tmtty Judge .owfinai eooount.8, annul 

aoeounts; ‘reports or’ reles ,of prop6 rty, or any 

other order that it may beoome neoessary to enter? 

“2. IO a rpeolal County Judge who has been 

heretororo appolnted by tha Oovrmor to save in 

a oertrln probate matter qurliri~e to oontinue to 

aot shoe a new Oounty Judge ha been eleotedd? 

“Mr. 5. Lee Dittert,an attorney or this City, 

was., until Deo. ‘31, 1940, the County Judge or this 

i 
Hon. Weldon B. Davis, Page 2, V-79 

County q As the County Judge, during his tenure of 

offloe, he dlsquallfled hlmaelf in many oases, end 

especially in probate matters, and in such cases 

where he certified his disquallfioetlons to act to 

the Governor, the Governor appointed e Special Coun-, 

ty Judge to act in his stead. Now the question la 

this : Since Mr. J. Lee Dittert is no longer the 

County Jua~ge does the apeolal County Judge that was 

appointed to act in lieu of Mr. Dittert at111 oontinue to act, or does the new Judge (Hon. W. D. Brgan) now act In such cases?” 

Article Q, Section 11 of the Constitution of 

Texas, is in part as follows: 

as, 

*No judge shall sit ion any case wherein he 

may be interested, or where either of. the parties 

may be oonnected with him, either by affinity of 

consanguinity, within such a degree as tmy be presoribed by law, or when he shell have been oounsel 

in the oese. * * * Ww 

Article 15 of the Revised Civil Statutes of Tex1925, 1s a9 follows: 

*Ro judge or justioe of the peace shall sit in 

any oase wheraln he may be interested or where either of the parties mry be oonneoted with him by affinity or consanguinity within the third degree, or 

whore he shall have been oounsrl in the ease.” 

That pert of Artlole V, Seotlon 11, of the State 

Constitution and 

e judge Is disqua E 

ertldent to our question provides that 

lried under three olroumstanoes: 

1. No judge shall,slt in any case wherein he 

rmy bo lntorosted. 

2. Where either of the parties may bs oonneoted with him eitbsr by aiilnlty or oonsanguinlty and 

within euoh a degree as nuy be presorlbed by law. 

3. Whore ho may h4ve beon oounsel in the oeso, 

Ws ather iron your letter that the judge 1s not lntereated Pn the subjoot matter In any of the probate matters 

whioh will oom 4 before him, nor Is he related to any of 

the parties lnterssted in ths subjeot matter being lltigrtod borore th4 aourt. You will note rmm ths r0mg0i0g 
Hon. Weldon B. Davis, Page 3, V-79 

that if the oounty judge has a peounlary interest in 

ths sub jeot matter over whloh ho ,prosl4ea, ho Is dlaqualified e Tha protsotlon of the citizens against lnjustioc end wrong mkes thla enforo4ment sassntlally 

nsoeesery o The lrpartlalIty wbloh la requIr4d of e 

judge is lncompetlble with having a peouniary interest 

l;e;Ee;ubject matter of the litigation over which he 

e 

hawvsr irom your requmst thst 

he pre4kw~o%~&dg4 baa io labelrest In the subject 

matter of any of the oases In which he is to al%, therefore, w4 do not deem It neoesaary to dlaouss this phase 

0r the law. 

Also, the Constitution, as well as the statutes, forbids any judge to sit where he msy have been 

counsel in the case. The roeson for this is, of oourse, 

it would be highly 1mpolitIo for a judge to decide a 

question lawfully befora him far adjudication, where ho 

had provlously been of ooun44l for one of the p4rfAes 

to a proceeding lnvolvlna ths qu4lJbion to be daofdsd. 

In other. words, such 8 judge is not suflposed by the law 

to be thot fslr, unbin-?a , ungre.iuaiced judae before 

Whom the parties in his, CO,urt ,maW trustfully .pmsent 

tlw, oontror4r4i44. 

The firat quoatloa that must be d4temlneA in 

ordrr to anawer your Inquiry, 18 what Ia meant by the 

word *oasow as used fn this aoameotlon. The word ‘*case” 

aa used in the Oonatltutlon and thla sttitute means any 

logal ooatnroray betwaoa gwtI~a with roapeot to a mattar Or iant or of 18~; any jmtloiable mattar or thfng 

botweoa spp4alng p4rtlaa pmmnt& ior daolslan; any prooeedlag rightly befOr a jadg4 wIilih reapsot to any right 

4f the partier, whether Lagal or equltablo, and whethar 

‘1% lnvolvar a pmporty right or a para~aal right. 

ft inalud4a ,ordcm wbth4r lnterlooutdti 

appealable, or Interlooutory appealable awdam. F 

hznIn a matter p4ndI 

"p 

beroro the Dlatriot Court, there Ay 

l r laa varlouu 14ga oontrovemier reruttiry; in lntarloarrtory Or&Or% iYm& whioh a0 appeal rould lia. Upon rush 

an appeal am, 

or a r080ir~* 

furl or the baklag 

ratid for l )proral 

00 l r lu %8 0 p ub 090 proo wdlr ( dth mpro t to a p a r - 

tloular 4lalW or mttor, aad the &ik4, oaah of rhloh’ord4r4 apt88 rmohl8g thq AppOAl8tO dourt would ba a "olab', 

tba and there pmpwly befor, the Oourt to be justiolatad - draldd bt t)ra OOu&?te Uo think tin word l on844 in 
- L 

Hon. Weldon B. Davis, Page 4, V-79 

the aonnection being considered .Inoludee such interlocutory appeala and i8 the a(180 In.whIoh he must have been 

counsel to one of thGa=8. It doss not mean the general cause, proceeding or 0888, out of,which the interlooutory order arose, for that oa8e or prooeedlng is not 

berore the Court ior decision one war or the other. The 

admlniatration of an e&ate end guardienship in probate 

is a oontlnoi 

2 

pmoadure and 8eoh r8ek of the, year there 

ay be an appl oatlon filed In the ~Pmb8t8 Moue in the 

name estate or guerdlanahlp. However, the subjebt matter In eaoh Inatanoo may .ba diiierent and entirely aeparate from the application filed in the same estate or 

&ardianship at a later and dirrerent time. For instanoe, 

an applioation for the sale o? reel estate might be filed 

and next week an applloatlon might be tiled for an allowanoa 0r an administmtor~s tees or attorney’8 ices, or 

It might be that the oounty judge Is .oallsd upon for an 

approval oi an annual or final aooount. In eaah Instanoe 

the subjeot matter boiors the Oourf I8 entirely ~dirferent, 

separate ana dletinot from the other. In Volume 6, page 

230 of Wotis md Phre8e8, w8 find the folloklng: 

nA pmoudlng In whloh ‘a mother ~(11 appoInted 

guardian of the person’and property of bar datrghtsr 

wa8 a voa8e’ within statute providing that no pereon 

ehall slt a8 a judge in ady ase in whIoh he ha8 

been of oou~el, but oass en % ed with entry of order 

appointing guardlen whloh .wa8 a ‘ilaalq .ana appeal-, 

able order, and judge who aoted as attorney in that 

oa8e wan not .dI8quelI~Ied rrom hearing and detexmlnIng qurrtion raleed by order dIr8otIly &erdien to’ 

tile her Inv8ntory an4 aooount8, sinoe that wan e .$ew 

and dI8tInot *oe~le*~ Organlo hat. II 84, 48 u.s.C.A. 

8 686. In co Wetilatihi’p OS‘ Rltohoook, 20 Hew. bS3.* 

Al80 In 33 Oorpu8 JurIe.,Page 1004,we find the 

tollo*I~: 

*A hyd&e who he8 aoted u oowe1 in the appolntmmt of a 

r 

rdiaa or a raoelver I8 not neoaeeerily dIrqaalI ed from aotily In other ratt8h r8- 

latiw td tb utate. Thu h8 18 not dirquallfled 

frqm eating In auttra SUetIm to the 88ttlem8nt 

Of their 8OOOUllt8." . 

In th8 oe8e of Tltlo @aaFnty and Sweaty Ooapeay 18. Sllolrer, 128 ho. 6@6, tu8tIoe Kane ot the Bupremo 

Ooiart of Oklahoma bd thi8 to 8e7: 

“The l88t e88Iganot $8 t0 the 8ff8Ot that the 

aourt emd In w*mlIa~ th8 d8fmdant*r motion to 

i 
. . 

. a 

Hon. Heldon ti. Davis, Page 5, V-79 

set aside the judgment herein on the ground that 

the settlement CC ,T. 1. Sllnker's gusrdianship accounts by the county court VIRS voi?, for the reason that the county ,iudge settling Jaid acoouats 

was diSa_ualified to SD act, in that he hs? repre,- 

sented the. said S. I. Slinker es an attorney in 

securing his appointment maay years prior to the 

date of the said accounting. The only evldeure of,= 

rered on this point was t&e order removing Bdr 

Slinker as gaardian, whloh contains a recital that 

said judtdg6 was disqualified to sit in the hearia 

of the petition for said Slinker's removal, in that 

he bed been Of counsel in the natter of SeOUring 

his appointment. We do not think that this evidence tends to connect the county judge with the 

accounts settled In such a manner as to disqualify 

him from acting In the matter of their settlement, 

In the case Of State ex 1-41 MCCormiok v. woody,14 

Mont, 465, 36 PBO. 1043, It wa8 held: ‘A judge who 

had been attardy for an adnlniatratrir la not disqualified to try a proaaedlng brought by oertain 

oredltore of t& b&ate to remove her, plder sectIon M7 a? the Coda of Civil Procedurea providing 

that a judge ehall not eat as such where he has been 

8ttOZp8y for either party In the action or'prxeedIlyO'* 

SImIlarly, In Ryan tar bsIg3, 136 Pat q 804, 

the hurt In holdl~ thtrt a OountJI judge was not disqualiiiad to snter ord8r for the 8ale oi a dooedent's land 

beoaues he bed formerly been ths attorney for the administrator of the estate said: 

"ft is urged on behalf 0s appellants that Noonan, the aoaaty judge, harim been the attorney for 

the administrator, Rays, was di8qualifIed under 

aode section 464, Revised Statutes. to enter the 

oXd8r for the sale of the land. The pertinent portion of seotion 404 made a8 follows: 'A judge shall 

not aot a8 suoh,in shy of ths follawing cases: In 

an 8otiOn or prooreding. . , when he has been an attorney or ooun881 far aIthar party in the aation or 

proasediry, Uti888 by tha oonaant of all the parties 

to the aotion.' This oas4 ha8 baen before the sup- 

*4 oourt, and In Ryan *I# Gsigel, 39 Cole. 35% 

358, 89 ha. 7m, the 00Wt, 8 eakily throwh the 

lats ChIet Juatioe $tC)dC), 1a I& 'The proceeding to sell real est8te Is separate and aistlaot fnm ths atslairtntlon of the estate prop*rC; 
Hon. Wsldon B. DaVia, Page 6, V-79 

and is a special proceeding, recognized by the 

statute.’ Judge NoonanVs profeasionn1 oonnection with the estate had entirely ceased long 

before proceedings were instituted in this case 

to sell the real estate. For several years after Noonan’s election to the office of ‘probate 

judge the title to the land In question was involr4d in an adverse proceeding in the land office. Inasmuch as Judge Wootnn had nothing whatever to do, as an .attornay, with the proceeding 

to sell the real estate, there was nothing in his 

early professional connection with the administration proceeding that disqualified him from 

later, as county judge, entering the order in 

quest ion ? 

In probrtb mattera,edch epplioetion ~which is filed pa 

considered a case in a sansb. Each order which is enter4d by the probate judge may be appealed from and has 

all the necesaasy requirement4 to make it a case under 

th6 law. Therefore, if the prreent aoulaty jkdgo hms adrisod in any partioular applioation or ratter n4w or 

hereafter before him, he is diequalified. If, on the 

other hand, the matter is one in which he has never advised the administrator or guardian, then it is, the opinion of this Department that .hs is not disqualified 

to ,aat just because he haa advised the admi~nlstrator 

or guardian in other matters in the sam4 estate. With 

the ~foregoing in mind, it is the further opinion of 

this Department that the county judge is not disqualified to aot .in approving annual aocounts, .orders approving or confirming the sales o? real estate and other orders in the same estate or guardianship in which he has 

acted a4 aouneel, if he has not advised in the partioular order which he is now called upon to ent tr or required 

to approve action which he had advised upon as counsel, 

50 S.W. (2d) 473; ~162 S.W. (26) 419. 

It is hardly oonosivabf4, howevtr,. how an attorney who haa been oounsal for the administrator or guardian 

of an estate, aould later sit as county jud(r~e and approve 

the final account in that. partiaular 44tat4 withaut pessing upon some phase of the matttr on whloh he has fonnerly adviaed. Therefore, it is ths opinion of this Department that the county judg4,ia diequalified to approve 

the final account in any 0444 In whioh ho Ma acted as 

aollnsel. 

Queetibn NO. 2. Is a special county judge who 
Hon. Weldon B. Davis, Page 7, V-79 

hsa been heretofore appointed by .the governor to serve 

In a certain probate matter qualified to oontinue to 

act since a new county judge has been eltcted and duly 

qualified? 

“Art. 1932.’ Special judge in probate .matter. 

“When a county judge is disqualified to act 

In any probate matter, he shall forthwith certify 

his disqualli’ioation therein to the Gwernbr,whereupon the Governor shall appoint some person to act 

aa speoial judge in said cast%, who shall sot from 

term to term until such disqualification ceases to 

axist~ A speoial judge ao appointed shall receive 

the same oompansation as is now or may hereafter be 

provided by law for rsgular judgea in similar casea. 

and the Commissloners~ Court ahalb, at the beginning 

of eaah ffacol yeor, inolude in the budget of the 

county, a suffirient sum far the payment of the 

ial judge or judges appointed by the Governor to 

spec- 

;;~9f0faF~~;;~‘f’;,f ;;;;iig f$ge . As ame~nded Acts 

The ststutaa provide for the s 

ig”,,’ ;;e;gt from tima ta tire until auo ii 

ecial oountg 

disqualiffoaand it naturally fallaws that the purposes 

for which tka special oounty judge In this ease was appointed were terminated upon the present and regular 

county judge taking the math 4.S office January 1, 1947, 

Now, even if the present oounty judge is disqualified 

under the ~atatutes and Constitution, he should notify 

the Gbvernor of such disqualification and In turn another special county judge would be appointed in his stead, 

Therefore, it is the opinion of this Department, In view 

ai the faregoing statute, that the speaial county judge 

haretofora appalnted by the Obvernor to serve in certain 

probate mattars cannot adntixua to sot since the new and 

regular eleated aounty judge’ took tha oath of office January 1,~ 1947, and qualified an that data.(Art.1932,V.A.C.S.) 

We realize that w4 havr, more or less, disauased the matter g4nrr4ll~ but it is impossible to render an opinion on a partidar case unless we have all 

of the faots at hrnd whioh relate to that particular caaa. 

In the event yau bars a partiaalar ont in mind on whiah 

you want an opinion, you should submit all the fasts pertaining to that case and state w&t partioular order the 
. . . 

,Eon. Weldon B. Davis, Page 8, V-79 

county judge is called upon to enter. We con then render~an opinion whioh will cover your speoific question, 

SUMMARY 

(1) The present aounty judge of Austin 

County is not disquellfled to act in matters of 

probat reletlab to the approval of annual acoounttB, reports of sale, eta., ewcpt the approval of final moounto, in which he previously ado 

visai ao aoumsl provided that the aubjeot matter 

now before him as judge has no direct relatlonship to that matter in which he advlsed as..uounael. Orgenie A& ff 84, 48 U.S.C.A. 8 636, In re 

y&ian~t 

e 

of Hit&mot&, 20 Raw. 353;~33 Corpus 

VS. Siinkr, 

004; Title Quoranty and Sure;iQ;t;pany 

128 Poo. 694; and Ryan vs. , 

138 Pao. 804, 

(2) The opsolal rounty 

1 

u&s appointed under 

Artlolo 1938, Varnoa*a Asnotm 8d al+11 Sbatutes, 

where the ryeha oolul(ry j,Mgo lo dirqPrsLiflod to 

aot in prabato matters, aon&& ooatintrs to aat alter tho newly elooted aoMtjy jpdgo quollflao for 

the orfioe, in view or the wording of the above 

YOare very truly 

l%r+~@ Allon 

Ar8itiaat 

,. ElArd)n: jrb 

Thls’Opinlon Ooaeidor~,aod Apjwtwod 

lnL$mitad aw0205.00