Honorable Joe Carroll,  Jr.                               Opinion No. M-922
County Attorney of Bell County
Bell County Courthouse                                    Re:   Court having jurisdiction of
Belton,  Texas 76513                                            Eminent Domain Proceedings
                                                                under Senate Bill 240, 62nd
                                                                Legislature, Regular Session,
Dear Mr.    Carroll:                                            1971 -- Bell County.

         In response to your opinion request of June 22, 1971, we shall
first direct attention to your question concerning eminent domain juris-
diction in Bell County, Texas.

         Article   1970-350*,               credted     the County Court of Law of Bell County;
it provides,    in part:

                 “Section l(a).  On the effective                  date of this Act
         (as provided in Sktion   6), the County                  Court at Law of
         Bell County is created.

                 “(b) The County Court at Law has the same juris-
         diction over all causes and proceedings,      civil, criminal,
         and probate,   original and appellate,   prescribed   by law for
         county courts,   and its jurisdiction  is concurrent with that
         of the County Court of Bell County.       (Emphasis    added. )

                  II                   II
                       .   .   .   .




         Clearly,  prior to Senate Bill 240, the County Court at Law of Bell
County had the same jurisdiction    as prescribed  by law for County Courts
generally,   and its jurisdiction was concurrent with the County Court of Bell


*   All references         to Articles        are to Vernon’s     Civil Statutes   unless   otherwise
    stated.




                                                      -4498-
Honorable    Joe Carroll,      Jr.,     page 2                (M-922)



county.   This included jurisdiction  in eminent domain cases.    Shannon v.
Tarrant County, 99 S. W. 2d 964 (Tex. Civ. App. 1937) reversed     on other
grounds,   129 Tex. 264, 104 S. W. 2d 4; City of Dallas v. Johnson,   54 S. W. 2d
1024 (Tex. Civ. App. 1932, no writ); Miers v. Housihg Authority of City of _
Dallas,  266 S. W. 2d 487 (Tex. Civ. App. 1954), certified question on other
matters answered 153 Tex. 236, 266 S. W. 2d 842, answer to certified question
conformed to 268 S. W. 2d 325 (Tex. Civ. App. 1954, error ref. n. r. e. )

          Therefore,   on June 9, 1971, when Governor Smith signed Senate Bill
240, and it became law, the County Court at Law of Bell County already had
jurisdiction   of eminent  domain proceedings.

          Senate Bill   240,   Section         3,    reads:

                  “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 pro-
          ceedings shall, except where otherwise       specifically pro-
          vided 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. “(Emphasis                       added. )

          It is our opinion that petitions in eminent domain matters in Bell
County    should be filed with the Judge of the County Court at Law.

         In a supplementary           letter        dated July 14,      1971,   you pose the following
question:

                  “Where does jurisdiction lay with regard to condem-
          nation proceedings when there is a vacancy in the County
          Court at Law judgeship? ”

        This question can be answered by referring to the statute that creates
the County Court at Law of Bell County, Article      1970-350,   and Senate Bill 240.
When read together,   these statutes establish jurisdiction    in the County Court
at Law of Bell County.   We note that Section 1 of Senate Bill 240 deprives the
County Courts of all jurisdiction  in eminent domain cases except those pro-
ceedings pending on the effective   date of the Act.   (Section 6, Senate Bill 240. )

       It is our opinion that since jurisdiction is vested in the County Court at
Law of Bell County that all petitions in eminent domain shall be filed with the



                                                    -4499 -
Honorable   Joe Carroll,   Jr.,    page 3         (M-9221



Judge of the County Court at Law of Bell County,            and that objections,   if any,
to the award. shall be filed in that Court.

         Articles 3264 and 3266 prescribe    the method of filing a condemna-
tion proceeding.    They provide,  in part, that the petition in condemnation
shall be filed with the judge of the county court, (now the judge of the county
court at law by virtue of Senate Bill 240, quoted above. ) It is our opinion
that if there is a vacancy in the judgeship of the county court at law, then
there is no judge with whom a condemnation proceeding        can be initiated and
with whom a condemnation petition can be filed.       Section 3 of Senate Bill 240
requires condemnation proceedings      to be filed with the Judge of the County
Court at Law.

        The second   question     posed by your   request    is,

                 “Would the County Cou~rt at Law Judge of Bell
        County, Texas,    be allowed by Article 1970-350, V. A. T. S. ,
        to sit as a Probate Judge of Bell County, Texas,  with full
        powers as vested to the County Judge by the Constitution
        of Texas and Section 4 of the Probate Code?”

         Article V. Section     29, Texas Constitution,  makes       certain provisions
relative to the jurisdiction     of the County Court in probate      matters;  it reads
as follows:

                 “The County Court shall hold at least four terms
        for both civil and criminal business     annually, as may be
        provided by the Legislature,     or by the Commissioners’
        Court of the county under authority of law, and such other
        terms each year as may be fixed by the Commissioners’
        Court; provided,    the Commissioners’     Court of any county
        having fixed the times and number of terms of the County
        Court,   shall not change the same again until the expiration
        of one year.    Said Court shall dispose of probate business
        either in term time or vacation,     under such regulation as
        may be prescribed     by law.   Prosecutions   may be com-
        menced in said courts in such manner as is or may be pro-
        vided by law, and a jury therein shall consist of six men.
        Until otherwise provided,     the terms of the County Court
         shall be held on the first Mondays in February,     May,




                                       -4500-
Honorable   Joe Carroll,   Jr.,   page 4       (M-922)



       August and November,   and may remain         in session   three
       weeks. ” (Emphasis   added. )

         The general statute relating to jurisdiction of the County Court in
probate matters is Section 4, Vernon’s     Texas Probate Code, which reads
as follows:

                “The county court shall have the general juris-
       diction of a probate court.     It shall probate wills,   ap-
       point guardians of minors and incompetents,         grant letters
       testamentary    and of administration     and guardianship,
       settle accounts of personal representatives,        and transact
       all business appertaining to estates subject to administra-
       tion or guardianship,    including the settlement,     partition,
       and distribution of such estates.      It may also appoint
       guardians for other persons where it is necessary          that a
       guardian be appointed to .receive funds from any govern-
       mental source or agency. ” (Emphasis          added. )

        The creation of probate courts and their constitutionality   was dealt
with in State ex rel. Rector,   et al v. McClelland,  148 Tex. 372, 224 S. W. 2d
706 (1949).   This case specifically   dealt with the Probate Court of Harris
County as created by Article    1970-110a.    The Court held, in part:

                “The Act does not undertake to limit or take away
       the jurisdiction of the County Court of Harris County.    It
       provides for another court to share the burdens and juris-
       diction of the County Court, in order to dispose of cases
       that have already crowded the docket of that court . . . ”
       (at page 710. )

        It is our opinion that Section 4, Vernon’s  Texas Probate Code, and
Article  1970-350,  Section l(b), when considered   together, and in the light
of the McClelland   case, give the County Court at Law of Bell County the
same jurisdiction   as the County Court of that county in probate matters,    and
that the County Court and the County Court at Law have concurrent jurisdiction
in probate matters.     Either the Judge of the County Court or the Judge of the
County Court at Law could sit as Probate Judge.




                                      -4501-
Honorable   Joe Carroll,   Jr. ; page 5      .? (M-9221




                                 SUMMARY

                 The County Court at Law of Bell County has
       jurisdiction  in eminent domain cases and probate matters.
       Senate Bill 240, Acts 62nd Legislature,   Regular Session,
       1971.

               The mere fact of a vacancy in the judgeship of the
       Bell County Court at Law would not change the jurisdiction
       in condemnation  cases.  Under Senate Bill 240, eminent
       domain cases should be filed with the Judge of the County
       Court at Law.

               The County Court at Law of Bell County has con-
       current jurisdiction   with the County Court of that county in
       probate matters.     Article  1970-350, Section l(b), Vernon’s
       Civil Statutes.




Prepared by Edward B. Rather
and Robert L. Towery,
Assistant Attorneys General

APPROVED:
OPINION COMMITTEE

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

Ron Tigner
Arthur Sandlin
Ben Harrison
Sam Jones

MEADE F. GRIFFIN
Staff Legal Assistant

                                    -4502-
Honorable   Joe Carroll,   Jr.,   page 6       (M-92.2)



ALFRED    WALKER
Executive Assistant

NOLA WHITE
First Assistant




                                      -4503-
