ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

September 2,2004 

The Honorable G.E. “Buddy” West Opinion No. GA-0245 

Chair, House Committee on Energy Resources 

Texas House of Representatives Re: Whether the courtrooms and offices of the 

Post Office Box 2910 40th and 378th District Courts may be located 

Austin, Texas 78768-2910 anywhere within the geographical boundaries of 

the City of Waxahachie (RQ-0200-GA) 

Dear Representative West: 

You ask whether the courtrooms and offices of the 40th and 378th Districts Courts may be 

located at any place within the geographical boundaries of the City of Waxahachie.’ 

I. Background 

On December 20, 1849, the Texas Legislature enacted a statute creating Ellis County. See 

Act approved Dec. 20, 1849,3d Leg., R.S., ch. 18, 1849 Tex. Gen. Laws 454,454-55, reprinted in 

3H.P.N. GAMMEL,THELAWSOFTEXAS~~~~-~~~~,~~ 16,16-17(Austin,GammelBookCo. 1898). 

Section 4 of the act provides, in relevant part: 

[b]e it further enacted, That the commissioners, after having found 

the centre, and designated the places to be run for the county seat of 

said county of Ellis, shall cause an election to be held at the several 

precincts in said county, for the purpose aforesaid; and all persons 

having a right to vote for representatives in the State Legislature, shall 

be entitled to vote for the county seat; and the place receiving a 

majority of the whole vote, shall be the county seat of said county, 

and called Waxahachie. 

Id. 5 4. Because there existed “no town or community whatsoever at the site of the county seat when 

that location was selected in 1849,” the election was held at the only residence, the cabin of E.W. 

Rogers? 

‘Letter from Honorable G.E. “‘Buddy” West, Chair, House Committee on Energy Resources, Texas House of 

Representatives, to Honorable Greg Abbott, Texas Attorney General (Mar. 18, 2004) (on tile with the Opinion 

Committee, also available ar http://www.oag.state.tx.us) [hereinafter Request Letter]. 

‘Brief from Honorable Joe F. Gmbbs, Ellis County and District Attorney, to Nancy S. Fuller, Chair, Opinion 

Committee, Office ofthe Attorney General, at 1 (May 5,2004) (on tile with the Opinion Committee) [hereinafter Gmbbs 

Brief]. 
The Honorable G.E. “Buddy” West - Page 2 (GA-0245) 

On August 5, 1850, the Ellis County Commissioners Court organized Ellis County, and 

appointed a surveyor to “lay off the county seat, comprising sixty acres of land in a public square, 

lots, streets and allies [sic] of size and dimensions as may be determined by the court.” Grubbs 

Brief, supra note 2, at 2. At the February 1851 term of the commissioners court, the surveyor 

reported that “the town map is complete and accompanies this report.” Id. Previously, on November 

19,1850, Emory W. and Nancy Rogers had “deeded to Ellis County sixty-two acres which became 

the Original Town of Waxahachie.” Id. The Ellis County Courthouse stands within the sixty-two 

acres deeded by Mr. and Mrs. Rogers. See id. 

You indicate that, “[wlhen restoration of the historic courthouse in downtown Waxahachie 

. . began in 1999, the 40th District Court and the 378th District Court were located to a series of 

interconnected portable buildings nearby.” Request Letter, supra note 1, at 1. “Due to various 

circumstances, construction on the Justice Center has been delayed, leaving the courts in these 

temporary structures.” Id. It has been suggested that the district courts could be moved to another 

location within the City of Waxahachie. See id. Some persons have raised concerns, however, that 

the courts may not be removed to any location outside the original city boundaries, i.e., the sixty-two 

acres donated by the Rogers family. See id. You ask whether the 40th and 378th District Courts 

may locate their courtrooms and offices outside the original sixty-two acres, so long as they are 

located within the existing municipal boundaries of the City of Waxahachie. See id. 

II. Relevant Law and Analvsis 

Article V, section 7 of the Texas Constitution, which provides for the creation of judicial 

districts, states that “[t]he court shall conduct its proceedings at the county seat of the county in 

which the case is pending, except as otherwise provided by law.” TEX. CONST. art. V, 5 7. By its 

plain language, this provision does not indicate that the term “county seat” is limited to the original 

boundaries of the city designated as the county seat. In Bridgman Y. Moore, 183 S.W.2d 705 (Tex. 

1944), the Supreme Court of Texas said that “[olur Constitution and statutes require a district judge 

to hold court only at the county seat of the county, which means theplace where the courthouse is 

situated.” Id. at 708 (emphasis added). Although the term “place” could refer either to the precise 

physical location of the courthouse, we believe it more likely that “place” denotes the city or town 

designated as the county seat. 

A subsequent case, Stine v. State, 908 S.W.2d 429 (Tex. Crim. App. 1995), suggests the 

above construction: “[T]he constitutional requirement that court proceedings occur in the county 

seat is a fundamental way to keep our most formal adversarial process open and public.” Id. at 43 1. 

An even later case echoes this view: 

Article V, section 7, requires courts to conduct proceedings “at the 

county seat of the county in which the case is pending, except as 

otherwise provided by law.” This requirement is jurisdictional. 

Garza v. State, 974 S.W.2d 251,262 (Tex. App.-San Antonio 1998, pet. ref d); see also Howell v. 

Gauzy, 899 S.W.2d 690,699 (Tex. App.-Austin 1994, writ denied) (the Texas Constitution requires 

a district court to conduct proceedings only at the county seat of the county in which the case is 

pending). 
The Honorable G.E. “Buddy” West - Page 3 (GA-0245) 

A brief submitted to us contends, however, that the existing City of Waxahachie is not in fact 

the county seat of Ellis County. The argument is as follows: 

The territory designated as fhe county seat of Ellis County was not a 

municipality, but a 62-acre tract of unimproved pasture land. 

Waxahachie is not, therefore, a “municipality designated as the 

county seat” as a matter of historical certainty. No municipality 

known as Waxahachie existed at the time of county seat selection and 

could not have been. Only E. W. Rogers’ cowpasture, was so 

designated. 

. 

The county seat chosen by the electors of Ellis County in 1850 is the 

62-acre “Original Town” located in what is now downtown 

Waxahachie, and that is where district courts must conduct their 

proceedings until a majority of county electors determine otherwise, 

or the constitution is amended .3 

This position has some support in case law. In Pitts v. Camp County, 39 S.W.2d 608 (Tex. Comm’n 

App. 193 1, judgm’t adopted), the court, in construing the meaning of the term “county seat” in a 

deed, stated as follows: 

[W]here an act of the legislature selects a certain town as county seat, 

the board of county commissioners had no authority to move the 

county courthouse to a portion of the town not embraced within its 

limits when the act was passed, notwithstanding that act of adding 

territory to the town was passed after the locating act, and that the 

actual establishment ofthe courthouse occurred after the enlargement 

of the town. 

Id. at 616. 

This contention-that the “countyseat” ofEllis County is not in fact the City ofwaxahachie, 

but only the original “62-acre ‘Original Town, “’ ignores the reality that the City of Waxahachie is 

widely recognized as the county seat of Ellis County. See, e.g., TEXAS ALMANAC 173 (1999). 

Furthermore, the 1849 legislative act creating Ellis County did in fact declare that, whatever tract 

of land was selected by the voters would be the “county seat” of Ellis County and would be known 

as “Waxahachie.” See Act approved Dec. 20,1849,3d Leg., R.S., ch. 18,1849 Tex. Gen. Laws 454, 

454-55, reprinted in 3 H.P.N. GAMMEL, THE LAWS OF TEXAS 1822-1897, at 16, 16-17 (Austin, 

Gammel Book Co. 1898). The briefer acknowledges that the City of Waxabachie became an 

‘Brief from Mr. Fred Weldon, to Honorable Greg Abbott, Texas Attorney General, at 3-4 (May 2,2004) (on 

tile with the Opinion Conrmittee) [herein&r Weldon Brief]. 
The Honorable G.E. “Buddy” West - Page 4 (GA-0245) 

incorporated “municipality” in 1871. See Weldon Brief, supra note 3, at 3. It is thus not clear that 

Pitts is strictly applicable to the situation posed here. In any event, Pitts was issued in 193 1. In 

1949, the legislature added to the original language of Texas Constitution article V, section 7, the 

following clause: “except as otherwise provided by law.” TEX. CONST. art. V, 5 7, amended by Tex. 

H.J: Res. 22,§ 1,5lstLeg., R.S., 1949Tex. Gen. Laws 1496,1496. In 1987, the legislature enacted 

such a law. 

Section 292.004 of the Local Government Code provides, in relevant part: 

(a) The commissioners court of a county may provide, inside 

the municipality designated as the county seat, an auxiliary 

courthouse, ajail, a parking garage, a facility for district, county, and 

precinct administrative and judicial offices and courtrooms, or any 

facility related to the administration of civil or criminal justice . 

(c) If the commissioners court designates the facility as an 

auxiliary courthouse, the facility may not replace the courthouse at 

the county seat. 

(d) A court required by law to hold its terms at the county 

seat may hold its terms at a court facility provided under this section. 

(e) A district, county, or precinct officer required by law to 

maintain an office at the county seat may maintain an office and keep 

official records at a facility provided under this section. The officer 

must also keep an office at the county seat. 

TEX. tic. GOV’T CODE ANN. $292.004 (Vernon 1999). Finally, subsection (a) speaks directly to 

the issue of territory annexed by the municipality designated as the county seat: “For purposes of 

this section, the municipality designated as the county seat includes territory added to the 

municipality after it became the county seat but excludes any part of the municipality outside the 

county.” Id. § 292.004(a). 

Thus, if there is any doubt about whether article V, section 7 of the Texas Constitution 

permits a county to locate the courtrooms and offices of district judges at anyplace within the county 

seat, section 292.004 of the Local Government Code removes that doubt. Even if it could be argued 

that the constitutional provision limits the location of the Waxahachie district courts to the city’s 

original sixty-two acres, article V, section 7 also contains the language “except as otherwise provided 

by law.” By enacting section 292.004, the legislature has “provided” such a law, and it is applicable 

to the situation you pose so long as Waxahachie is the “municipality designated as the county seat.” 

SeeBennett v. State, 82 S.W.3d 397,398 (Tex. App.-Austin 2002, no pet.) (“[A] district court ‘shall 

conduct its proceedings at the county seat of the county in which the case is pending, except as 
The Honorable G.E. “Buddy” West - Page 5 (GA-0245) 

otherwiseprovided by law. . . .“‘) (citing T exas Constitution article V, section 7). In our view, there 

can be no doubt that the City of Waxahachie, even if considered only to comprise its original sixtytwo acres, is the “municipality designated as the county seat” of Ellis County. And section 292.004 

makes abundantly clear that a county seat includes all territory within the existing boundaries of the 

municipality designated as the county seat. 

We conclude therefore that the 40th and 378th District Courts may locate their courtrooms 

and offices outside the original sixty-two acres of the City of Waxahachie, so long as those 

courtrooms and offices are located within the existing municipal boundaries of the city. 
The Honorable G.E. “Buddy” West - Page 6 (GA-0245) 

SUMMARY 

The 40th and 378th District Courts may locate their 

courtrooms and offices outside the original sixty-two acres ofthe City 

of Waxahachie, so long as those courtrooms and offices are located 

within the existing municipal boundaries of the city. 

Yours very truly, 

&A%?=- 

Attorney General of Texas 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WILLETT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Rick Gilpin 

Assistant Attorney General, Opinion Committee