R-59



### Tmm A-rrox~~y GENERAL

OF TEXAS.

PRICE DANIEL *TTORNEYGENERAL

Hon. Weldon B. Davis County Attorney Austin County Bellville, Texas **Auerm aa.**  **-** Maroh8, 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 newmatters 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, anattorney in thts county. As en attorney, he imndled numerous probate matters, manyof which are still in court, such as guardianship matters ,.administration of estates, eto. As anattorney 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. heww as County Jld’gs”qualified to enter orders ae4tmtty Judge.owfinai eooount.8, **annul** aoeounts; ‘reports or’reles ,of prop6rty, or any other order that it maybeoome neoessary to enter?

“2. IO a rpeolal County Judge whohas been **heretororo** appolnted by **tha Oovrmor**  to save in a oertrln probate matter qurliri~e to oontinue to aot shoe a newOounty Judge ha been eleotedd?

“Mr. 5. Lee Dittert,an attorney or this City, was., until Deo. ‘31, 1940, the County Judge or this

iHon. Weldon B. Davis, Page 2, V-79

Countyq As the County Judge, during his tenure of offloe, he dlsquallfled hlmaelf in manyoases, end especially in probate matters, andin 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. Nowthe question la this : Since Mr. J. Lee Dittert is no longer the CountyJua~gedoes the apeolal County Judge that was appointed to act in lieu of Mr. Dittert at111 oontinue to act, or does the newJudge (Hon. W.D. Brgan) nowact In such cases?” Article Q, Section 11 of the Constitution of Texas, is in part as follows:

**as,** *Nojudge shall sit ionany case wherein he maybe interested, or where either of. the parties maybe oonnected with him, either by affinity of consanguinity, within such a degree as tmybe presoribed by law, or whenheshell have been oounsel in the oese. * * * Ww Article 15 of the Revised Civil Statutes of Tex1925, 1s a9 follows: *Rojudge or justioe of the peace shall sit in any oase wheraln hemaybe interested or where either of the parties mrybe oonneoted with himby 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 disquaE ertldent to our question provides that lried under three olroumstanoes: 1. Nojudge shall,slt in any case wherein he rmy bo lntorosted. 2. Where either of the parties maybs oonneotedwith himeitbsr by aiilnlty or oonsanguinlty and within euoh a degree as nuy be presorlbed by law. 3. Whore homayh4ve beon oounsel in the oeso, **Ws** ather iron your letter that the judge 1s not lntereated Pnthe subjoot matter In any of the probate matters whioh will oom 4before him, nor Is he related to any of the parties lnterssted in ths subjeot matter being llti**grtod borore**  th4 **aourt.** Youwill note rmm ths r0mg0i0gHon. Weldon B. Davis, Page 3, V-79

that if the oounty judge has a peounlary interest in ths subjeot matter over whloh ho,prosl4ea, hoIs dlaqualified e Tha protsotlon of the citizens against lnjustioc endwrong 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 Inwhich he is to al%, therefore, w4do not deemIt neoesaary to dlaouss this phase 0r the law.

Also, the Constitution, as well as the statutes, forbids any judge to sit where hemsyhave been counsel in the case. The roeson for this is, of oourse, it would be highly 1mpolitIo for ajudge to decide a question lawfully befora himfar 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 8judge 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 mustbe d4temlneA in ordrr to anawer your Inquiry, 18what Ia **meant** by the word *oasow as used fn this aoameotlon. Theword ‘*case” aa used in the Oonatltutlon and

### thla sttitutemeans 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 wIilihreapsot to any right 4f the partier, whether Lagal or equltablo, andwhethar

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

**ft** inalud4a ,ordcm wbth4r lnterlooutdti appealable, or Interlooutory appealable awdam. FhznIn a 

### matter p4ndI"p beroro the Dlatriot Court, there Ay lrlaa 

### varlouu 14ga **oontrovemier** reruttiry; in lntarloa

### rrtoryOr&Or%iYm&whioh 

### a0 appeal rould lia. Upon rush an appeal 

### am, or a r080ir~* furl or the baklag ratid for 

### l

)proral 00 lrlu%80pub090 proowdlr(

dth mprottoapar- tloular 4lalW 

### or **mttor,** aad **the** &ik4, **oaah**of rhloh’ord4r4 apt88 rmohl8g thq AppOAl8tO dourt would ba 

### a "olab', tba and 

### therepmpwly befor, 

### theOourt to be justiolat**ad -**  **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 meanthe 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:

nApmoudlng 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 .wa8a ‘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. II84, 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&ewho 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 Oftheir 8OOOUllt8."
. In th8 oe8e of Tltlo @aaFnty and Sweaty Ooapeay 18. Sllolrer, 128 ho. 6@6, tu8tIoe Kane ot 

### theBupremo 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 asidethe judgmenthereinon theground that the settlementCC ,T. 1. Sllnker'sgusrdianship ac**counts by**  the **county court**  **VIRS voi?,**  **for** the reasonthat the **county** ,iudge settling Jaid acoouats was diSa_ualified to SDact, in that he hs? repre,- sented the. said S. I. Slinker es **an attorney**  in securing his appointment maayyears 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. Wedonot think that this evidence tends to connect the county judge with the accounts settled In such amanneras to disqualify himfrom acting In the matter of their settlement, In the case OfState ex 1-41**MCCormiok** v. woody,14 Mont, 465, 36 PBO.1043, It wa8 held: ‘Ajudge 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 Codaof 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 q804, 

### the hurt In holdl~ thtrt a OountJI judge was not disqualiiiad to snter ord8r for 

### the8ale oi a dooedent's land beoaues he bed formerly been ths attorney for the administrator of the estate said:

"ft is **urged** on behalf 

### 0sappellants 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: 'Ajudge shall not aot a8 suoh,in shy of ths follawing cases: In an 8otiOn or prooreding.

. , whenhe has been anattorney or ooun881 

### far aIthar party in the aation or proasediry, **Uti888** by tha oonaant of all the parties to the aotion.' This 

### oas4 ha8baen before the sup- *4 oourt, and In Ryan*I# Gsigel, 39 Cole. 35% 

### 358, 89ha. 7m, the 00Wt, 8 eakily throwh the lats ChIet Juatioe $tC)dC), 1aI& '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 NoonanVsprofeasionn1 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 Wootnnhadnothing 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 himfrom later, as county judge,entering the order in question ? In probrtb mattera,edch epplioetion ~whichis filed pa considered a case in a sansb. Each order which is enter4d **by** the probate judge maybe appealed from andhas all the necesaasy requirement4 to makeit a case under th6 law. Therefore, if the prreent **aoulaty** jkdgo hmsadrisod in any partioular applioation or ratter n4wor 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 haaadvised the admi~nlstrator or guardian in other matters in the sam4estate. 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 sameestate or guardianship in which he has acted a4 aouneel, if he has not advised in the partioular order which he isnowcalled uponto ent**tr** or required to approve action which he hadadvised upon as counsel, 50S.W. (2d) 473; ~162S.W. **(26)** 419.

It is hardly oonosivabf4, howevtr,. how **an** attorneywhohaa been oounsal for the administrator or guardian of an estate, aould later sit as county jud(r~eand approve the final account in that. partiaular **44tat4** withaut pessing upon some phase of the matttr on whloh he has **fonner** ly adviaed. Therefore, it is ths opinion of this Department that the county judg4,ia diequalified to approve the final **account in**  any **0444** Inwhioh ho Ma acted as aollnsel. Queetibn NO.2. Is aspecial county judge whoHon. 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 newcounty judge has been eltcted and duly qualified?

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

“Whena 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 someperson to act aa speoial judge in said cast%,whoshall sot from term to term until such disqualification ceases to axist~ Aspeoial **judge** ao appointed shall receive the sameoompansation as is nowor mayhereafter be provided by 

### lawfor rsgular judgea in similar casea. andthe Commissloners~ Court ahalb, at the beginning of eaah ffacol yeor, **inolude** in the budget of the county, **a suffirient**  sumfar the payment of the ial judge or judges appointed by the Governor tospec- ;;~9f0faF~~;;~‘f

’;,f ;;;;iig f$ge

. As ame~nded Acts

The ststutaa provide for the s ig”,,’ ;;e;gt from tima ta tire until auoiiecial oountgdisqualiffoa**and 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 incertain probate mattars cannot adntixua to sot since the newand regular eleated aounty judge’ took tha oath of office January 1,~1947, and qualified anthat 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 wehave all of the faots at hrndwhioh relate to that particular caaa. In the event yau **bars** a partiaalar 

### ont in mindon whiah you want an opinion, you should submit all the fasts pertaining to that case andstate w&t partioular order the. . .

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

county judge is called uponto enter. Wecon 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 nowbefore himas judge has no direct relatlonship to that matter in which headvlsed as..uounael. Orgenie A& ff84, 48 U.S.C.A. 8 636, In re y&ian~t e of Hit&mot&, 20Raw. 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 1u&s appointed under Artlolo 1938, Varnoa*a Asnotm8d 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

YOarevery truly

l%r+~@ Allon 

### Ar8itiaat

,.ElArd)n:jrb Thls’Opinlon Ooaeidor~,aod Apjwtwod

lnL$mitad aw0205.00