          TEIEATI-ORNEYGENERAL
                  OF TEXAS


                      June 21, 1949

Hon. Charles R. Jones
senate committee on counties
and County Boundaries
51st Legislature
Austin, Texas             Opinion Bo. V-846.
                          Rer Constitutionality   of H. B.
                              912 authorizing   the Coun-
                              ty Judge of counties of
                              500,000 or more population
                              to appoint a master in
                              chancery to perform pro-
                              bate duties.
Dear Senator:
           You request an opinion a6 to the constitution-
ality of House Bill lie. 912 which, omitting the title,
the enacting,   the emergency, and the severability  claus-
es, is as follows:
           "Section 1. This Act shall apply only
     In counties having a population  of five hun-
     dred thousand (500,000) or more, according
     to the last preceding Federal Census.
            "Sec.2.  The County Judge in such coun-
     ties shall have authority  to appoint a master
     In chancery to perform any and all of the du-
     ties required of the judge of the County
     Court sitting  in probate matters.     The order
     of appointment may authoriee such special mas-
     ter to do or perform particular    acts, or it
     may in general terms authorize and require the
     special master to do or perform certain gener-
     al types of acts In causes and proceedings
     then pending in said County Court.      The master
     shall keep a memorandumshowing each act per-
     formed by him, stating the general nature, and
     at least once each month, shall file a com-
     plete statement and report with the County
HOEI.Charles   R. Jones,   page 2 (V-846)


     Judge listing   the date of the act Andyits gen-
     eral nature.    All actions,  decisions  and de-
     terminations   by such special master shall be
     subject to examination and approval by the
     County Judge Q Re may approve them separately,
     or by a general order made once each month,
     When sny order or action is made by the spe-
     cial master, It may be appealed from to the
     same extent and in the same mauner as if it
     had been made by the County Judge.      At aug
     ttie within thirty (30) days after the making
     of any order or the taking of any action by
     such special master, OP if such order or ac-
     tion is appealed from, then at any time before
     an appeal bond or application     for cePtlorar5
     is filed,   the County Judge may on his own mo-
     tion, or on motion of any lntepested     party,
     set aside any actioq of the special master.
          “Sec. 3.   (Provides for compensation and
     Is not relevant here; it is therefore   omitted
     in the interest  of brevity.)
           ‘See,   4,  When the County Judge is absent,
     or is unable    to act in any probate matter
     pending In the County Court, then the judge of
     any County Court at Law (without regard to the
     exact name of such County Court at Law) may
     sit as judge of the County Court, and may heap
     any cause, OP any part of any cause, or pro-
     ceeding pending on the probate docket, or make
     any order, or sit in any cause in which the
     County Judge would have powep to act 0 When
     sitting    In any probate matter as County Judge,
     any judge of any County Court at Law shall be
     invested with the same power, authority and
     jurisdiction    as the County Judge sitting  as
     the judge of the probate court.      When any or-
     der Is made or entered In the County Court by
     the judge of any County Court at Law, it shall
     be presumed that the County Judge was absent
     or unable to act in the matter in which such
     order was so madeD In addition to any other
     remedies provided by law, any person who may
     consider himself aggrieved by any such order
     made by a judge of the County Court at Law
     sitting    as     e of the County Court, may
     withln ten         days after the date of such
Hon. Charles   R. Jones,   page   3 (V-846)

     order or proceeding,   apply to the County Judge
     to have such order set aside, modified,   vacat-
     ed or annulled as the circumstances   may re-
     quire; OP, sn appeal may be prosecuted,   or
     nit    of certiorari applied for, in the same
     manner and under the same regulations   as is
     now provided by law in case of orders and de-
     cisions   of judges of the Couuty Court in pro-
     bate matters.*
           Section 2 of the Act provides that the County
Judge shall have authority   to appoint a master in chan-
cery to perform any and all of the duties requlred of
the Judge of the County Court sitting     in probate matters
and provit¶es that all actions,  decisions   and determina-
tions by such special master shall be subject to examl-
nation and approval by the County Judge.      Special provl-
sion is made for an appeal from an order of a special
master in the same manner as if it had been made by the
County Judge.
             Section 4 declares that when the County Judge
is absent or unable to act, the Judge of any County Court
at Law may hear any cause or proceeding pending on the
probate docket, OP make any order which the County Judge
would have power to make, granting unto said Judge of
any County Court at Law the same power, authority and
jurisdiction    as the County Judge sitting   as the Judge of
a probate court,     Because of the holding herein, it is
not necessary to pass upon the question as to whether
this would constitute    the holding of two offices   of emol-
ument by the same person in violation      of Section 40 of
Article    XVI of the Texas Constitution.
          Section 16 of Article      V of the Constitution     of
Texas is in part as follows:
             "The County Court shall have the general
     jurisdiction     of a probate court; they shall
     probate wills,       appofnt guardians of minors,
     Idiots,    lunatics,    persons non compos mentls
     and common drunkards, grant letters         testamen-
     tary and of administration,         settle accounts
     of executors,      transact all business appertain-
     ing to deceased persons, minors, idiots,          luna-
     tics,    persons non compos mentis and common
     drunkards, including        the settlement,  partition
Hon. ChaPlea R. Jones,       page    4 (V-846)

      and distribution  of estates of deceased per-
      sons and to apprentice mlnors, as provicled by
      law; 0 o -”
           Section    ~22, Article    V of the Texas Constitution
is as follows:
            “The Legislature   shall have power, by lo-
      cal or general law, to Increase,     dltinish  or
      change the civil    and criminal jurisdiction    of
      county tour a; an in cases of any such change
      of jurisdiction,    the Legislature  shall also
      conform the jurlsdlctlon     of the other courts
      to such change.’ (Italics     added throughout
      this opinion.)
              In State v, Gilletteas      Estate, 10 S.P.2d 984
(Comm. App, 1928) the court pointed out that the jurls-
diction    of the County Court was three-fold:          civil,    crlm-
inal, and probate.         Under Section 22 above, the Legis-
lature may change the civil         and crQnina1 jurisdiction.
Rut it may not change the           obate jurlsdiction,because
of the positive       language                16 above and because
Section 22 says the Legislature          may (only) change the
“civil    and criminal jurisdiction.”         In this regard Judge
Critz said:
              I( 0 D D There is no escape from the con-
       clusion that It was the intent and express pun
       pose of section 16 of article         5 of the Constl-
       tutlon to confer exclusive        oroiginal
       jurisdiction      on the county courts.       E$%er
       construction      of the several provisions       of apt%
       cle 5 would z%nder section 22 of said %Pticle
       absolutely     meaningless and void.       Section 22
       of article     5 expressly provides that the Legis-
       lature has power to illcrease,        diminish, or
       change the civil and criminal juPlsdiction              of
       county cot&s       and conform the jurisdiction         of
       the district      and other IMerior      courts to such
       change.     If the Legislature     has the power or
       authority under section 1 of article           5, which
       is a general provision,        to ipcrease,    dllainish,
       OP change the probate       jur4sdiction     of the coua-
       ty court or conform the jurisdiction           of the
       district     or other inferior    courts to such
       change, then section 22 would be a meaningless
       and idle provision0
.




     Hon. Charles R. Jones,     page 5 (V-846)


                  “lie therefore    conclude that section 22 of
          article     5 of the Constitution        of this state,
          In so far a8 the probate jurisdiction              of the
          county court is concerned,           speaks exclusively
          as to the right of the Legislature             to increase,
          change,     or diminish    the   jurisdiction     of such
          courts as prescribed        and defined under section
          16 of the same article,         and that said section
          22 speaks exclusively         as to the right or power
          of the Legislature        to conform the jurisdiction
          of the district        or other Inferior      courts to
          such change.       Section 22 limits the power of
          the Legislature        in this respect to the civil
          and CrilPinal jurisdiction          of the county courta
                            follows    that any effort     on the
          part of the Legislature         to increase,     diminish,
          or change the robate jurisdiction              of the coun-
          ty court of Rabcounty                   or to confer such
          probate jurisdiction         on any’other     court, would
          be void, as contrary to the fundamental law of
          the land. ”
                 Section 2 of said bill provides that aThe
     County Judge in such counties shall have authority       to
     appoint a master In chancery to perform any and all of
     the duties requlred.of    the judge of the county Court
     slttinn   in D bat     tt       It    th I        delegation
      f th 8 exclugflve &.%d%ion       ofa~heo~o~~yaJudge    in
     8iolation   of Section 16 of Article   V of the Constitution
     of Texas.
                  Even though the County Judge might not appoint
    !*a master in chancery to perform all of those acts pro-
     ‘vided for In Section 2, the mere fact that he is given
       such power renders the bill Invalid in that regard.    The
      possibility   of approval of the master’s action by the
      County Judge does not affect   this conclusion.
                Furthermore, it is provided that “When any or-
     der or action is made by the special master, it may be
     appealed from to the same extent and in the same mauner
     as if It had been made by the County Judge.”      This indi-
     cates an assumption of jurisdiction     by the master and a
     delegation  by the county judge of duties Imposed on him
     by the Constitution.    The Legislature   might authorize
     the County Judge to appoint a master in chancery to as-
     sist him in finding facts;   but the bill   in question does
     not limit the duties of the master to that of a fact
                                                                    .




Hon. Charles    R. Jones,   page 6 (V-846)


finder.  On the contrary,   it authorizes   final action by
him on such probate matters as shall have been delegated
to him by the County Judge aad thus the performance of
a duty which is the exclusive   prerogative    of the County
Judge.
             It is therefore   our opinion that In the re-
spects mentioned House Bill Ho. 912 is unconstitutional
being in violation     of Section 16 of Article   V of the
Constitution    of Texas granting exclusive    probate juris-
diction   to the County Court.
                            SUMMARY
              House Bill Ho. 912, 51st Legislature,
        which proposes to authorize the County Court
        to appoiut a master in chancery to perform
        the probate duties exclusively    required of
        the Judge of the County Court is umonstitu-
        Mona1 and void, being in violation      of Sea-
        tion 16. Article  V of the Constitution    of
        Texas. --State v. Mllette*s    Estate, 10 S.U.
        26 984 (&mm. APP. 19281
                                       Yours very truly,
                                   ATTOFdEXG3I9ERALOFTYXAS




B?:bh                                        Assistant          /




                                   ATTORRE WMRRAL
