Honorable          Ogden       Bass                              Opinion            No.    M-924
Criminal         District       Attorney
Brazoria         County       Courthouse                         Re:          Jurisdiction              of,    and procedure
Angleton,          Texas      77515                                           in,     the Brazoria              County           Court
                                                                              of Domestic               Relations           under
                                                                              S. B.       240,     Acts        62nd    Legisla-
                                                                              ture,       R. S. ,       197 1,     relating          to
Dear    Mr.        Bass:                                                      Eminent            Domain.


            In your        opinion       request        of June        11,    197 1,      you      set forth          the follow-
ing three        questions:


            1.      Does      S. B.     240,     Acts     62nd     Legislature,               preempt           the Brazoria
            County         Court      of Domestic            Relations         in all matters                 of eminent            do-
            main?


            2.      What      matters          of eminent        domain,            if any,      may          be handled           by the
            Brazoria          County         Court      of Domestic            Relations           subsequent              to passage
            of S. B.         240,     Acts     62nd     Legislature?


            3. In the event                 it is decided        affirmatively              that    the Brazoria                   County
            Court      of Domestic              Relations        has     jurisdiction             to try       cases        of eminent
            domain,          will     said     cases     be tried        as    if said      court        was     a district            court?


            Article         2338-19,         Vernon’s         Civil     Statutes,          which         became            effective        in
1965,      created         the Brazoria             County     Court         of Domestic            Relations              and     set forth
the jurisdiction             of said        Court      including       jurisdiction              in eminent           domain          cases
as well       as    concurrent          jurisdiction          with     the    county        courts.            Section          8 provides:


                            “The      jurisdiction        of the Brazoria                 County         Court        of
            Domestic           Relations         shall      extend      to all matters              of eminent
            domain          of which         jurisdiction        has     heretofore              been     vested           in
            the County              Court     of Brazoria          County,           but this      provision               shall
            not     effect     the jurisdiction              of the Commissioners’                        Court        or of




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Honorable         Ogden       Bass,         page     2            (M-924)




           the County          Judge         of Brazoria               County       as to roads,               bridges,
           public      highways            and matters                of eminent           domain            which      are
           now within          the jurisdiction                  of the Commissioners’                           Court
           or the presiding                 judge     thereof,            including          the       right     of the
           County       Judge      of Brazoria                  County         to appoint             commissioners
           in condemnation,                  receive           the     reports          and enter            judgment.
           It is the intention               of this          section         to vest      in the Brazoria                    Court
           of Domestic            Relations           jurisdiction               to hear         any and all            matters
           in condemnation,                  whether            by commission                    or jury        of view,         ap-
           peal      to the Brazoria                County         Court         of Domestic              Relations            or to
           the County          Court         only.       ”    (Emphasis            added.         )


           It is     clear     that prior            to the enactment                    of S. B.        240,     Acts         62nd    Legis-
lature,     the Brazoria              County         Court        of Domestic              Relations            had judicial           juris-
diction    to hear      and try            eminent           domain       cases,          provided             that    Objections          to the
Award     of Special          Commissioners                     had been          properly             filed    pursuant            to Article
3266,     Vernon’s        Civil       Statutes.               S. B.     240,      which      became             effective           June   9,
1971,     provides        in part          as follows:


                        “Sec.         1.     The      district          courts          of all    counties            in the
           State      shall    have        jurisdiction               concurrent           with        the     county
            courts      at law        in eminent              domain           cases.        The        county        courts
            shall     have     no jurisdiction                  in eminent              domain         cases.


                        “Sec.         2.     In all          counties         in which           there         is no county
            court     at law      with       jurisdiction               of eminent           domain            cases,         the
           party      desiring         to initiate             condemnation               proceedings                 shall     file
            its petition        with        the district              judge;      and objections                to the award
            of the special            commissioners                     shall      be filed           in the district
            court.


                        “Sec.         3.  In all counties   in which there is one or more
            county      courts        at law with jurisdiction    in eminent domain  cases,
            the party         desiring         to initiate             condemnation               proceedings                 shall,
            except      where.otherwise                       specifically          provided            by law,         file     its
            petition with         the judge of the county court                                  at law; and objections
            to the award          of the special commissioners                                     shall be filed in that
            county      court     at law.




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Honorable           Ogden             Bass,          page        3               (M-924)




                                “Sec.         6.      The        provisions                 of this        Act    shall      not
             apply         to any proceeding                          pending              on the effective               date      of
             this        Act.     ”     (Emphasis                 added.          )


             By virtue                of Section            1,       judicial          jurisdiction               of eminent             domain
matters        in Texas               is vested             concurrently                     in the district              courts         and the
county      courts          at law        except            for       pending              proceedings             excluded            by Section
6.     Section       7 of S. B.               240         amends         Article              1960,         Vernon’s           Civil      Statutes,
to read      as follows:


                                “Where             the jurisdiction                    of a county               court     has      been
             taken         away,         altered            or       changed               by existing           law,     the juris-
             diction            shall     remain             as      established,                   until    otherwise             pro-
             vided        by law.              The         county        courts              shall     have       no jurisdiction
             in eminent                 domain            cases.        ”


             S. B.        240     expressly                 takes       away           the jurisdiction                  of county          courts
generally         to handle              eminent             domain              cases.             It provides           that     eminent          do-
main      proceedings                 must          now be initiated                        with     the     district      judge         by virtue
of Section          2,     or with        the judge                  of the        county           court        at law    under          Section      3,
and objections                  to the award                of special                 commissioners                    must       now be filed
in the district             court        under             Section          2,        or    in the county               court      at law       if Sec-
tion     3 applies.              However,                 S. B.       240        does        not take         away        the eminent             domain
jurisdiction             expressly                 granted           to the Brazoria                   County           Court       of Domestic
Relations         by Article              2338-19.


             It is the           general             rule     of statutory                   construction               that     subsequently             en-
acted      statutes         do not amend                     or      repeal           previously              enacted          statuted        by impli-
cation      only,         and that both                   subsequent                  and previous         statutes   are to be read and
interpreted              so that both                can be effective,                        if possible.      Where    one of supposedly
conflicting          statutes            is general                  in its terms                  and the other           is      specific,        the
special       statute           more          clearly            evidences                 the intention       of the Legislature,    and
therefore         it will         control,                both       statutes              being     permitted     to stand.   Townsend
v.     Terrell,          188      Tex.         463,         16 S. W. 2d 1063                       (1929).         Article         2338-19        is a
special       statute           conferring                judicial          jurisdiction               of eminent               domain         matters      on
the Brazoria               County         Court            of Domestic                     Relations,             and to that            extent     is con-
trolling      over         S. B.        240,         a general              statute.


             It is our            opinion            that    S. B.          240,           Acts      62nd     Legislature,                did not pre-
empt       the Brazoria                 County            Court        of Domestic                   Relations            in all matters              of emi-
nent     domain,           and that                said     court       has        jurisdiction               of eminent            domain         cases
in Brazoria              County.

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Honorable           Ogden          Bass,        page       4             (M-924)




             Sections            2 and 3 of S. B.                240     now provide            the means               whereby
eminent          domain       proceedings                 must         be initiated,          and how objections                     to the
award       must         be filed.            When        the Legislature                enacted       Article          2338-19,          did
it create         a district         court          or a county           court      at law with          eminent            domain
jurisdiction             or did it create                 some     other         court?        The     Brazoria             County        Court
of Domestic              Relations            has      characteristics               of a district         court,           a domestic
relations         court,         a probate             court,      and a county              court     at law.            Section         1 of
Article      V of the            Texas        Constitution              was      amended        in 1891,            adding        the pro-
vision:


                            “The      Legislature                 may      establish         such      other        courts
             as     it may         deem         necessary          and prescribe               the jurisdiction
             and organization                    thereof,         and may           conform          the jurisdiction
             of the District               and other             inferior         courts      thereto.         ”


             In construing               the provisions                  of the quoted          amendment,                 the Supreme
Court      of Texas,             in Jordan           v.    Crudgington,               149     Tex.      237,        231    S. W. 2d 641
(1950),      held        that the Legislature                     may      legally        authorize        a domestic                relations
court      to exercise             some         of the      general         jurisdiction            of a district            court.         How-
ever,      it said        that     the pattern             need        not conform           to the pattern               of either        district
courts      or     county        courts,            and that       the Court          of Domestic              Relations            of Potter
County       was     neither          a district               court     nor      a county      court.             We     think     the    same
is true      with        the Brazoria               County        Court         of Domestic           Relations.              The     Legisla-
ture      created         a domestic             relations         court         and gave       it additional              jurisdiction,
including         eminent          domain,             but it is our             opinion     that the      court          created         is not
a county         court      at law         as    such      a court         is    referred       to and contemplated                       by S. B.
240.       Therefore,              subsequent              to June        9,     1971,      eminent       domain            proceedings
in Brazoria              County      must         be initiated            with      the district         judge          under       Section        2 of
S.B.      240.


             Clearly,            by virtue           of Section          6 of S. B.          240,    the Brazoria                 County         Court
of Domestic              Relations            may      continue          to handle          eminent       domain           proceedings
pending         on June       9,     1971,          where        objections          have     been      properly            filed     pursuant
to Article          3266.         In eminent              domain         proceedings           filed     with       the district           judge
after     June      9,     1971,      objections               to the award           must      be filed           in the district            court.
S. B.     240     makes          no provision              for    the transfer              of cases      from          the district          to
some       other     court         such       as the Brazoria                   County      Court      of Domestic                Relations.
However,           Section         4 of Article                2338-19          provides:


                            “Sec.        4.      All      cases        enumerated            or included            above
             may         be instituted            or transferred                 to the Court          of Domestic


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Honorable        Ogden       Bass,            page       5             (M-924)




          Relations.             Immediately                   after       this    Act        takes        effect
          all    cases       enumerated                  or included              must        be trans-
          ferred      to the Court                  of Domestic              Relations               created
          by this        Act.         Thereafter               the Judges            of the District
          Courts         of Brazoria                County        may        transfer            any case           with-
          in the jurisdiction                      of the Court             of Domestic               Relations
          created        by this          Act       to said       Court           of Domestic               Relations,
          and the Judge                 of the Court             of Domestic                   Relations            may
          transfer         any case             pending          in said Court                  to any District
          Court      of Braeoria                   County       as      designated              by the presid-
          ing District            Judge            of said      County.             Said        Court        of Domestic
          Relations          may         also       sit for      any of the District                        Courts        of
          Braaoria           County           and hear           and decide               for       such     Courts         any
          case      coming            within        the jurisdiction                of the          Court      of Do-
          mestic         Relations             created          by this       Act.            All    District         Courts
          of Brazoria             County            may       likewise            sit for,          hear      and decide
          cases      pending             in the Court             of Domestic                   Relations,           as the
          sitting     for,       hearing            .and deciding             cases            as    now or here-
          after     may         be authorized                 by law        for     all       District        Courts           of
          Brazoria           County.           ”    (Emphasis               added.        )


          It is our        opinion            that the         Brazoria            County           Court      of Domestic                 Re-
lations   may      handle         all     eminent            domain         matters             pending        on June              9,   1971,
and may      handle       eminent             domain           cases        initiated           pursuant            to S. B.         240   which
are   transferred          by the district                   courts        to said         court       under         the provisions              of
Section     4 of Article           2338-19.


          Section        22 of Article                2338-19             provides:


                         “Sec.          22.        The       practice        and procedure,                    rules        of
          evidence,             the     drawing          of jury          panels,          selection           of juries,
          issuance         of process                and all         other        matters            pertaining           to the
          conduct         of trials           and hearing                 in said     Court           shall     be governed
          by provisions                 of this       Act       and the laws               and rules           pertaining
          to District            Courts,            general          or    special,             as well       as County
          Courts;         provided             that juries             in all      matters            civil     or criminal
          shall     always            be composed                of twelve           (12)        members             except
          that     in misdemeanor           criminal  cases  the juries shall                                             be com-
          posed      of six        (6) members,    as well as six (6) member                                               juries




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Honorable          Ogden      Bass,       page      6             (M-924)

            in cases        where        this     court      has     concurrent              jurisdiction
            with     the County           Court       as herein           provided..”


            Eminent         domain         cases        pending          in Brazoria             County           on June        9,1971,
if tried     in the Brazoria              County          Court      of Domestic                Relations,               must     be tried
before      six (6) member               juries,        since       the jurisdiction                  to try       such         cases       is
concurrent          with    the    county        court.          The      general           provision            in Section        22 for
twelve      (12)    member         juries        will     apply      to those           cases         initiated          subsequent              to
the enactment           of S. B.         240.


            It is our       opinion        that    eminent          domain             matters         tried       in the Brazoria
County      Court      of Domestic               Relations          must        be tried         as    if the court             was     a
district     court,        excepting        those         cases      pending            on June           9,     1971,     which        will
be tried      before       six    (6)    member           juries.


                                                        SUMMARY


                           The    Brazoria          County          Court        of Domestic                   Relations
            has     jurisdiction          to try        cases       of eminent              domain             which     are
            transferred           to it by the district                   courts         of Braeoria               County,
            and such          cases      must      be tried          as if said             court      was       a district
            court.         Said    court        may       also     try    eminent           domain             matters
            pending        in Brazoria             County         on June         9,     1971,        but such           cases
            must      be tried          before      six    (6)     member          juries.
                                                                            n
                                                                     V           truly       yours        ,
                                                                                                      n
                                                                    f ./7               I


                                                                                                c.        MARTIN
                                                                                   y General                   of Texas


Prepared           by Robert        L.     Towery
Assistant          Attorney       General


APPROVED:
OPINION            COMMITTEE


Kerns       Taylor,        Chairman
W. E.      Allen,      Co-Chairman




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Honorable         Ogden      Bass,   page   7     (M-924)



C. W.     Pearcy
Houghton         Brownlee
Larry     Craddock
Mel     Corley


MEADE       F.     GRIFFIN
Staff   Legal      Assistant


ALFRED           WALKER
Executive        Assistant


NOLA      WHITE
First    Assistant




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