                                               May     19,   1975


The Honorable      Henry Wade                                 Opinion     No.   H-     609
District  Attorney
Sixth Floor,    Records   Buildihg                            Re:  Whether    Domestic   Relations
Dallas,  Texas      75202                                     Judges   may use salaried    employees
                                                              hired by the commissioners        court
                                                              for appointment   as masters     in
                                                              chancery?

Dear    Mr.   Wade:

         You advise      that because     of extreme   congestion    existing   in the
domestic    relations     courts   of Dallas   County,  the Dallas    County Commissioners
Court has been asked to authorize            and fund a full-time,     salaried    employee   for
each domestic      relations     court to be “available    ” for appointment      by that court
as a master     in chancery      under Rule 171 of the Texas       Rules   of Civil Procedure.
A proposed     Commissioners         Court order which would do so has been supplied
us.   It provides    that the employee       is to be designated    a “Master”      and be
under the employment          and direction    of the County Clerk.       According    to the
proposed    order,    his functions    would include:

                      .   . acting   as   a fact-finder       in:

                      a) uncontested     divorces,   including          waivers,     agreed
                      matters,    defaults,    and publications

                      b) temporary    matters   including  injunctions,  temporary
                      alimony,    temporary   child support,    and temporary   use
                      of properties

                      c) after-judgment     matters,          including    contempt,         visitation
                      matters,     and modification          matters.

You    ask:

                  Under the facts     stated,   would it be proper&r     a Judge
                  of a Domestic    Relations     Court to use a salaried    employee
                  hired by the Commissioners’         Court for appointment     as a
                  master    in chancery    in future  cases  to perform   the functions
                  permitted    by Rule 171, T. R. C. P. ?




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The   Honorable     Henry    Wade    - Page    2      (H-609)




        The Texas    Rules of Civil Procedure     have been promulgated     by the
Texas  Supreme    Court pursuant   to art,icle 1731a, V. T. C. S.  They have the
force of law.   Missouri   Pacific  Railroad   Company   v. Cross,   501 S. W. 2d
868 (Tex.  sup.  1973).

         Rule     171 of the Texas     Rules   of Civil      Procedure    reads:

                       The court may,      in exceptional    cases,   for good cause
                    appoint a, master    in chancery,      who shall    be a citizen
                    of this State,  and not an attorney       for either party to the
                    action,  nor related     to either party,    who shall perform
                    all of the duties  required     of him by the court,     and shall
                    be under horders of the court,        and have such power as the
                    master   of chancery      has in a court of equity.

                        The order     of reference       to the master      may specify        or
                    limit his powers,         and may direct        him to report      only upon
                    particular     issues,     or to do or perform         particular     acts,    or
                    to receive     and report       evidence     only and may fix the time
                    and place for beginning           and closing     the hearings,       and for
                    the filing of the master’s           report.     Subject   to the limitations
                    and specifications         stated in the order,        the master      has and
                     shall exercisk      the power to regulate          all proceedings        in
                    every hearing       before     him and to do all acts and take all
                    measures      necessary       oi proper      for the efficient     performance
                    of his duties under the order.               He may require        the
                    production      before    him of evidence        upon all matters        embraced
                    in the reference,         including    the production       of books,     papers,
                    vouchers,      documents        and other writings        applicable     thereto.
                    He may rule upon the admissibility                of evidence,       unless
                    otherwise     directed      by the order      of reference      and has the
                    authority    to put witnesses         on oath,    and may,      himself,
                     examine    them,      and may call the parties          to the action and
                     examine    them upon oath.           When a party       so requests,       the
                    master     shall make a record           of the evidence      offered     and
                     excluded    in the same manner           as provided      for a court
                     sitting  in the trial of a case.

                       The clerk of the court          shall forthwith     furnish    the master
                    with a copy of the order          of reference.

                       The parties  may procure           the attendance   of witnesses   before
                    the master   by the issuance          and service   of process   as provided
                    by law and these rules.




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The    Honorable     Henry         Wade   - Page   3   (H-609)




                        The court may confirm,        modify,     correct,   reject,
                     reverse    or recommit     the report,    after it is filed,
                     as the court may deem proper          and necessary      in the
                     particular   circumstances     of the case.       The court shall
                     award reasonable      compensation      to such master      to be taxed
                     as costs   of suit.  (Emphasis     added).

Your    letter   advises:

                       Although     the salary   of the employee       assigned     to a
                    particular     Domestic    Relations    Court would be paid in
                    full by the County of Dallas,         an appropriate       order    of
                    reference     to the master     would be issued       by the court
                    for each case in which the service            of a master      is
                    required.      It is hoped by the Courts        and Bar Association
                    Members      that extensive     use of masters       can ‘be made to
                    assist   in the reduction     of the large    number     of cases      now
                    pending on the dockets.         Changes     in provisions       of the
                    Family     Code have greatly      increased     the work load of
                    the Judges~and       Members     of the Bar.      The thousands        of
                    cases   pending on the dockets        have created      a situation     which
                    almost    denies    access  to the courts     by litigants.       More
                    often than not, the health,        welfare,    and safety of children
                    are directly      involved  and the delays      caused    by clogged
                    dockets    are sometimes       detrimental.

                     .   . .   .   .

                       As a practical     matter,    it would seem that the great
                    need of the litigants,     and their dependents,      for speedy.
                    determinations      compel    the use of masters.      It is submitted
                    that the pressing     needs of the litigants   are so great that
                    every   case falls within the requirements         of the Rule as an
                    “exceptional”     one and that “good cause”       for the appointment
                    of

          The appointment      by a court of a qualified    county employee       to act in
some capacity     as an officer    of the court for the duration      of a particular     case
does not necessarily       create  dual employment      problems     or conflict   of interest
problems.     SeeAttorney       General   Letter  Advisory     93 (1975).    We need not
decide here whether       the repeated    appointment    of a part:icular    county employee
to serve   as a master     a chancery    in every  case coming      before   a domestic
relations   court would enroluter       such problems,      ‘Ve !!O !?OY r?Iirh those *ssues
because    we believe   Rule 171 requirements       of “exceptlonai~    case”   and “good
                                                                                                          .


The   Honorable     Henry    Wade     - Page   4     (H-609)




cause”  prevent   such a practice.          See Cregler    v. Hyde,        280   S. W.   Zd 783
(Tex.  Civ.  App.   -- Waco 1955         writref.,   n. r. e. ).

          In Ex Parte Odom,          271 S. W. 2d 796 (Tex.       Sup. 1954),    the Texas
Supreme     Court noted that Texas          Rule 171 was based       in part on Rule 53 of the
Federal    Rules    of Civil Procedure.          The United States      Supreme     Court has
said that court congestion          is not in itself   such an exceptional      circumstance
as to warrant      the reference      of trial matters     to a master     under the federal
rule.    La Buy v. Howes         Leather    Co.,    352 U.S.    249 (1957).    Cf.,    L. A.
Brush    Corp.    v. James,      272 U.S.     701 (192.7).   For examples      of cases    which
Texas    appellate    courts    have indicated     fall into the “exceptional       case”   category,
see Housing      Authorit                                        1, 325 S. W. 2d 880 (Tex.
civ.  App.                                                        Strickland   Transportation       Co.
v. Navajo    Frkight     Lines,    Inc.,   387 S. W. 2d 720 (Tex.         Civ. App.     -- Dallas
1964,   no writ).

          Masters     have been employed         by courts      in domestic    relations     matters.
See Roberson       v. Roberson,       42~0 S. W. Zd 495 (Tex.         Civ.  App.    -- Houston
mh      Dist. J 1967,     writ ref.,   n. r. e. ).   But when so employed,           they are
employed      by the court which referred          the matter      to them and the award or
refusal    to them of fees to be taxed as costs            is within the sound discretion           of
the referring      court.     Roberson    v. Roberson,        supra.     Whether    a master      shall
be appointed,      and if so, who shall be appointed             and what his duties       shall be,
and what compensation           he shall receive      therefor,     are all matters      within the
discretion     of the trial courts,      as guided by Rule 171.          Huber v. Buder,        434
S. W. 2d 177 (Tex.        Civ.   App.   -- Ft. Worth 1968,         writ ref.,    n. r. e. ).   The
Commissioners         Court order      could not displace        such authority.

          In Cregler   v. Hyde,    supra,  the trial court upon its own motion
appointed    a master    in chancery   to hear all issues    and to file findings  of fact
thereon    in a suit to set aside a trustee’s    deed for land.     The plaintiff  objected
and appealed.      The Court of Civil Appeals       observed   that a trial court is not
authorized    under Rule 171 to appoint a master        in chancery    in other than
x+xceptional   cases,   and not then except for good cause.

          We have no doubt that the situation      which the proposed     commissioners
court order      is designed   to meet is one demanding     a solution,  but we do not
believe    Rule 171 can accomodate      the plan proposed.     See Guittard,   Court
Reform      Texas   Style.  21 S. W. L. J. 451, 485 (1967);   Attorney  Genera~nion
v-846(1949);       Morrow    v. Corbin,   62 S. W. 2d 641 (Tex.    Sup. 1933).




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I




                  The   Honorable   Henry   Wade   - Page   5       (H-609)




                                                    SUMMARY

                                    Rule 171, Texas   Rules of Civil Procedure,       authorizes
                                    the appointment   of a master   in chancery    by domestic
                                    relations  courts  but oniy in exceptional    cases   for good
                                    cause.    Court congestion   does not in itself make every
                                    case an exceptional    case nor furnish    good cause for
                                    such an appointment.




                                                                /   /   Att orney   General   of Texas
                                                                v
            -PROVED:




                  Opinion   Committee

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