                                      F         EXAS




                               December        19,   1962




Hon. W.. L. Hardwick                                    Opinion No. WW-1505
County Attorney                                         Re:   Whether a County Judge
Live Oak County                                               may serve as guardian
George West,    Texas                                         of the person and estate
                                                              of a person of unsound
                                                              mind in the court over
                                                              which he otherwise
Dear   Mr.     Hardwick:                                      presides.

             Your letter states that Mr. Harry L. Hinton will take office as
County Judge of Live Oak County in January,   1963, and that he is presently
serving a guardian of the person and estate of one of unsound mind.

              In particular you ask, ‘I. . . if there is any prohibition against
him serving as such guardian during the time he is County Judge if he
disqualified himself as Judge in that particular   case and another judge
is appointed by the Governor. ”

                  Section   1’6 of Article    V of the Constitution       of Texas,    is in part
as follows:                 .I


                 “The Gounty Court shall have the general jurisdiction
       of a Probate bourt;       they shall probate wills, appoint guard-
       ian of minors,    idiots, lunatics, persons non compos mentis
       and common drunkards,          grant letters testamentary    and of
       administration,     settle accounts of executors,    transact all
       business appertaining       to deceased persons,   minors,    idiots,
       lunatics,   persons non compos mentis and common drunk-
       ards, including the settlement,       partition and distribution
       of estates of deceased persons and to apprentice minors,
       as provided by law;. . . ”

                  Article   319,   Vernon’s     Civil   Statutes,   ‘$tates:

                  $o  judge or clerk         of the Supreme Court, Courts         of
       Civil    or Criminal Appeals,          or District Court, or sheriff       or
                                                      .

Hon.   W.   L.   Hardwick,   page 2 (WW-1505)




       deputy, or constable,    shall be allowed to appear and plead
       as an attorney at law in any Court of record in thiqSt.ate.
       No county judge or county clerk who is licensed to practice
       law shall be allowed to appear and practice as an attorney
       at law in any county or Justice Court, except in cases where
       the Court over which such judge presides,      or over which
       such clerk is clerk has neither original nor appellate juris-
       diction.  No county clerk who is licensed to practice law
       shall be allowed to appear and practice as an attorney at
       law in any District Court, Court of Civil Appeals,     Court
       of Criminal Appeals,     or the Supreme Court unless the
       Court of which such clerk is clerk has neither original
       nor appellate jurisdiction.   ” (Emphasis   added)

              The underscored     portion of the above statute leaves no doubt
that a County Judge is precluded from practicing law in any County Court,
except in those cases where then Court over which he presides      has neather
original nor appellate jurisdiction.

                This conclusion     ra!ses the question of whether or not serving
as guardian of the person and estate of a person of unsound mind constitutes
the practice of law.      The answer to this question is found in Sections 109
and 110 of the Texas Probate Code.          Section 109 is entitled “Persons
Qualified to Serve as Guardians”;         and provides that if certain designated
classes   of individuals   (spouse and nearest of kin) refuse to serve or are
non-existent    or fail to qualify,   “then any other qualified person shall be
entitled to the guardianship.     ” V. A. T. S. Probate Code, Section 109(c) (2).
Section 110 of the Probate Code is entitled “Persons          Disqualified to Serve
as Guardians. ” This section enumerates           some eight causes which prevent
qualification.    Failure to be a practicing attorney is not one of these causes.

              Construing these two sections together,     it is our conclusion
that the Texas Probate Code has no restriction   against a qualified layman
serving as a guardian;  and that such service,  of itself,    does not constitute
the practice of law.

                We are therefore  of the opinion that Article 319, Vernon’s
Civil Statutes,  does not prohibit a County Judge who is also a licensed
attorney from serving as guardian of the person and estate of a person
of unsound mind in the court over~which he presides       if the following con-
dltions are met:
Hon.   W.   L.   Hardwick,     page 3 (WW-1505)




               1. Whenever a matter relating to the guardianship      is
       broaght before the court, the County Judge must disqualify
       himself according   to the provisions of Article 5, Section 11
       of the Constitution of Texan. which provides in part:     “No
       judge shall sit in any case wherein he may be interested.     . . ”

                 2. Whenever a matter relating to the guardianship
       is brought before the court, or whenever the provisions
       of the Texas Probate Code require some action by the
       County Judge concerning    the guardianship,   then the pro-
       visions of Article  1932, Vernon’s   Civil Statutes, must be
       followed.

                 Article     1932 reads   as follows:

                 “When a county judge is disqualified    to act in any
                 probate matter,    he ahall forthwith certify his dis-
                 qualification therein to the Governor,    whereupon
                 the Governor shall appoint some person to act as
                 special:judge  in said case, who shall act from term
                 to term until such disqualification   ceases to exist.
                 A special judge so appointed shall receive the same
                 compensation    as is now or may hereafter by pro-
                 vided by law for regular judges in similar cases,
                 and the Commissioners’      Court shall, at the begin-
                 ning of each fiscal year, include in the budget of
                 the county a sufficient sum for the payment of the
                 special judge or judges appointed by the Governor
                 to act for the regular county judge. ”

                   3. Whenever a matter relating to the guardianship  is
       brought before the County Court, and such matter is one which
       would require presentation by a licensed attorney,  the County
       Judge must be represented,  as guardian,  by another licensed
       attorney.
Hon.        W.   L.   Hardwick,   page 4, ~(WW-1505)




                                       SUMMARY

                     The provisions  of Article 319, Vernon’s  Civil Statutes,
            do note prohibit a County Judge who is also a licensed attorney
            from serving as guardian of the person and estate of a person
            of unsound mind in the court over which he may preside if the
            following conditions are met:

                            1. The County Judge must      comply with the
                      provisions  of Article 5, Section   11 of the Constitution
                      of Texas.

                           2.  The provisions  of Article     1932,   Vernon’s
                      Civil Statutes, must be followed.

                           3.   In guardianship matters brought before
                      the court requiring presentation    by a licensed
                      attorney,   the County Judge must be represented,
                      as guardian,    by another licensed attorney.

                                                       Very   truly yours,

                                                       WILL WILSON
                                                       Attorney General      of Texas




                                                       ~GORDON      ZUB@t
                                                       Assistant Attorney General
JGZ/ms

APPROVED:
OPINION COMMITTEE

W.     V.    Geppert,     Chairman

Sam Stone
Albert Pruett
William H. Pool

REVIEWED    FOR THE ATTORNEY                  GENERAL
BY:  Leonard Passmore
