           TEE    ATTORNEY    GENERAL
                     OF TEXAS

                        March 8, 1988




Honorable Fred G. Rodriguez       Opinion No.   JM-870
Criminal District Attorney
Bexar County Courthouse           Re:.   Jurisdiction  of the
San Antonio, Texas 78205          statutory probate courts of
                                  Bexar County to adjudicate
                                  cases   under    the  Mental
                                  Health Code, in light of
                                  recent amendments to former
                                  article 1970-301e.2, V.T.C.S.
                                  (RQ-1248)

Dear Mr.   Rodriguez:

     You ask:

          1. Whether amendments to Title 41 of the
       Texas Civil Statutes,    relating to County
       courts, the Texas Government     Code and the
       Texas   Mental   Health    Code,     effective
       September  1,   1987, have     divested    the
       statutory probate courts of Bexar county,
       Texas of jurisdicti,on to hear and adjudicate
       proceedings brought pursuant to the Texas
       Mental Health Code.

          2. If the statutory probate courts of
       Bexar County, Texas, do have jurisdiction
       over mental health proceedings, whether such
       courts have been divested      of   statutory
       authority to docket such proceedings.

     You give as the reason for concern about the courts'
jurisdiction the repeal of article 1970-301e.2,  V.T.C.S.,
Acts 1987, 70th Leg., ch. 148, 54.02(a),        at   1389,
effective September 1, 1987.

     Section 18(a)      of the   repealed statute   provided   in
pertinent part:

       The Probate Court No. 1 of Bexar County and
       the Probate Court No. 2 of Bexar County have




                              P. 4216
Honorable Fred G. Rodriguez - Page 2 (JM-870)




       general jurisdiction,  concurrent with the
       jurisdiction of the county court, to hear
       and determine all actions, cases, matters,
       or proceedings instituted under:

             (1) The Texas    Mental Health      Code
          (Article 5547-1, et seq., Vernon's    Texas
          Civil Statutes)[.]

Acts 1983, 68th Leg., ch. 355, 918(a), at 1922.

     You state that a question has arisen as to whether
Probate Court No. 1 of Bexar County and Probate Court No.
2 of Bexar County have jurisdiction to hear and adjudicate
proceedings brought pursuant to article 5547, V.T.C.S.

     The Texas Legislative   Council's Revisor's  Note on
chapter 25, subchapter B of the Government Code, at page
68, makes the following comment relative to the repeal of
section 18(a) by the 70th Legislature:

          The revised law omits Section 18(a) of
       Article 1970-3Ole.2    relating to additional
       jurisdiction of a statutory probate       court
       because the provisions      are    unnecessary.
       Article 5547-10, Texas Mental Health      Code,
       provides that a court having probate     juris-
       diction has      jurisdiction    over   matters
       contained   in .. the Texas     Mental   Health
       Code. . . .

     Article 5547-10, V.T.C.S. provides:

          The term 'county court' is.used in this
       code [mental health] to mean the   'probate
       court' or the court having probate   juris-
       diction, and the term 'county judge' means
       the judge of such court. The county court
       shall be open at all times for proceedings
       under this code.

     Article 5547-40, V.T.C.S. states:

       A proceeding  pursuant to this subchapter
       [Proceedings for court-ordered mental health
       services] shall be held in the statutory  or
       constitutional court of the county exercis-
       ing the jurisdiction of a probate court in
       mental illness matters.




                          Pa 4217
Honorable Fred G. Rodriguez - Page 3     (~~-870)




     In Parsons v. State, 677 S.W.2d 786, 789 (Tex. App. -
San Antonio 1984, no writ) the court rejected  appellant's
point of error that the probate court was without   juris-
diction to hear a case in which appellant was adjudged to
be mentally   ill.   The court held:     "Jurisdiction   is
expressly conferred by article 5547-40."

     Section 25.0171 of the Government    Code,          effective
September 1, 1987, provides in relevant part:

          (b) Bexar County    has    the      following
       statutory probate courts:

          (1) Probate Court No. 1 of Bexar          County,
       Texas; and

          (2) Probate Court No. 2 of Bexar          County,
       Texas.

     Section 25.0021 of the Government    Code, effective
September   1,  1987,   addresses the    matter   of  the
jurisdiction of a statutory probate court as follows:

          A statutory probate court as that term is
       defined  in. Section  3(ii), Texas Probate
       Code, has the general jurisdiction of a pro-
       bate court as provided by the Texas Probate
       Code.                                    .

     Section  5(c) of the      Probate     Code      provides   in
pertinent part, as follows:

          (c) In those counties where there is a
       statutory probate court, county court at
       law, or other statutory court exercising the
       jurisdiction of a probate court, all appli-
       cations, petitions    and motions   regarding
       probate,   administrations,    guardianships,
       limited guardianships,   and mental   illness
       matters shall be filed and heard in such
       courts and the constitutional county court,
       rather than in the district courts, unless
       otherwise provided by the legislature,     and
       the judges of such courts may hear any of
       such matters sitting for the judge of any
       such courts.   (Emphasis added.)

     Statutory Probate Courts of Bexar County have juris-
diction to hear     and adjudicate proceedings     brought
pursuant to the Mental Health Code.




                           P. 4218
Honorable Fred G. Rodriguez - Page 4 (JR-870)                 ,




     In your second question you state that a question has
been raised as to the authority of the statutory   probate
courts of Bexar County to docket mental health proceed-
ings. As was the case in the first question, the basis
for such position appears to be the repeal of article
1970-301e.2 by the 70th Legislature.  Section 18(b) of the
statute before the effective date of its repeal provided
as follows:

           (b) All matters for which the courts have
       jurisdiction under Subsection (a) of this
       section filed with the county clerk, regard-
       less of the court or judge to which the
       matter or proceeding is addressed, shall be
       filed by the clerk alternately in Probate
       Court No. 1 of Bexar County and Probate
       Court No. 2 of Bexar County.      Every odd-
       numbered case shall be filed with Probate
       Court No. 1 of Bexar County and every even-
       numbered case shall be filed with Probate
       Court No. 2 of Bexar County, but the judges
       of the statutory probate courts and the
       county judge may determine    another manner
       for filing cases.    The clerk shall keep a
       separate docket for each court.

&g   Acts 1983, 68th Leg., ch. 355, 518(b), at 1922.

     The Texas Legislative     Council's Revisor's  Note on
chapter 25, subchapter B of    the Government Code, at page
67, states:

           The revised  law omits language in Sec-
        tions 17(b), 18 (b) , and 19(b) of Article
        1970-301e.2 because    specific   filing   and
        docketing   requirements    were     impliedly
        repealed by the Court Administration       Act
        (Article 200a-1,     Vernon's    Texas   Civil
        Statutes).  Section 5.003(b)(l) of that Act
        requires the district     and county     court
        judges in each     county to adopt       rules
        providing  for the assignment,      docketing,
        transfer, and hearing of cases.

     The Court Administration Act is now recodified in the
Government  Code and the above provision      relating to
docketing of cases is found in section 74.093 of that
code. It provides in pertinent part:




                          P. 4219
Honorable Fred G. Rodriguez - Page 5    (JM-870)




          (a) The district and statutory   county
      court judges in each county shall,       by
      majority votes, adopt local rules of admin-
      istration.

          (b) The rules must provide for:

             (1) assignment,  docketing,  transfer,
          and hearing of all cases, subject to jur-
          isdictional limitations  of the district
          courts and statutory county courts.

Gov't Code 974.093.    Thus, the district    and statutory
county court judges *lshalllladopt rules providing for the
docketing of mental health proceedings    in the statutory
probate courts.

     The statutory probate courts of Bexar County have
jurisdiction to hear and adjudicate proceedings brought
pursuant to the Texas Mental Health Code.

                       SUMMARY

          The statutory probate   courts of Bexar
       County have jurisdiction to hear and adjudi-
       cate proceedings  brought pursuant   to the
       Texas Mental Health Code.     The statutory
       probate courts of Bexar County have not been
       divested of statutory authority   to docket
       cases.




                                 J A&
                                   Very truly yo   ,


                                        A
                                   JIM     MATTOX
                                   Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General


                         P- 4220
