                                                                        R-59



                       Tmm A-rrox~~y                    GENERAL
                                     OF      TEXAS.
                                     Auerm      aa. -
PRICE  DANIEL
*TTORNEY GENERAL
                                          Maroh 8, 1947

           Hon. Weldon B. Davis           Opinion No. Q-79
           County Attorney
           Austin County                  Re:    Construction   of Article   15,
           Bellville,  Texas                     Revised Civil .Staturee of
                                                 Texas, qualifications     of a
                                                 county judge under various
                                                 ciroumstances.
           Dear Mr. Davis:
                      Your letter  or January 19th to this Department,
           requesting a oonstruotion   of ,Artlale 15, Revised Civil
           Statutes,  1925, in part is as r0ii0ws:
                      “1.   Is tbe present County Judge under the
                above statutes    disqualified   from acting as judge
                in any subsequent probate matter wherein he has
__              heretofore   acted es counsel and especially    in
                new matters affecting      the probate matter In which
                the present said county judge has n.ever advised.
                       “The present County Judge, Honorable :?I. C.
                Bryan, was before January 1, 1947, an attorney in
                thts county.    As en attorney,      he imndled numerous
                probate matters, many of which are still          in court,
                such as guardianship matters ,. administration        of
                estates,   eto.   As an attorney In a case he natur-
                ally aevlsed with his olients,        simed. papers as
 .I   ,.        attorney ror his Client,       etc.   Now the question
                is ,. in t&se probate matters, where he has ,former-
                ly wpreseated     8.. guardian, eraoutor or administra-
                tor, is. he ww as County Jld’gs”qualified         to enter
                orders ae4tmtty       Judge .owfinai   eooount.8, annul
                aoeounts; ‘reports or’ reles ,of prop6 rty, or any
                other order that it may beoome neoessary to enter?
                           “2.   IO a rpeolal   County Judge who has been
                    heretororo    appolnted   by tha Oovrmor  to save  in
                a oertrln        probate matter qurliri~e to oontinue to
                aot shoe         a new Oounty Judge ha been eleotedd?
                      “Mr. 5. Lee Dittert,an  attorney or this City,
                was., until Deo. ‘31, 1940, the County Judge or this




                i
Hon. Weldon B. Davis,       Page 2, V-79


      County q As the County Judge, during his tenure of
      offloe,    he dlsquallfled    hlmaelf in many oases, end
      especially    in probate matters, and in such cases
      where he certified       his disquallfioetlons     to act to
      the Governor, the Governor appointed e Special Coun-,
      ty Judge to act in his stead.           Now the question la
      this : Since Mr. J. Lee Dittert          is no longer the
      County Jua~ge does the apeolal County Judge that was
      appointed to act in lieu of Mr. Dittert           at111 oon-
      tinue to act, or does the new Judge (Hon. W. D. Brg-
      an) now act In such cases?”
            Article Q, Section      11 of the Constitution     of
Texas,   is in part as follows:
            *No judge shall sit ion any case wherein he
      may be interested,    or where either of. the parties
      may be oonnected with him, either by affinity      of
      consanguinity,   within such a degree as tmy be pre-
      soribed by law, or when he shell have been oounsel
      in the oese. * * * Ww
              Article  15 of the Revised   Civil   Statutes   of Tex-
as,   1925,   1s a9 follows:
             *Ro judge or justioe   of the peace shall sit in
      any oase wheraln he may be interested      or where eith-
      er of the parties mry be oonneoted with him by af-
      finity   or consanguinity   within the third degree, or
      whore he shall have been oounsrl in the ease.”
            That pert of Artlole  V, Seotlon 11, of the State
Constitution   and ertldent   to our question provides that
e judge Is disqua Elried under three olroumstanoes:
              1.   No judge shall,slt   in any case wherein he
       rmy bo lntorosted.

             2. Where either of the parties  may bs oonneot-
       ed with him eitbsr by aiilnlty or oonsanguinlty  and
       within euoh a degree as nuy be presorlbed  by law.
              3.   Whore ho may h4ve beon oounsel     in the oeso,
Ws   ather iron your letter that the judge 1s not lntereat-
ed Pn the subjoot matter In any of the probate matters
whioh will oom 4 before him, nor Is he related to any of
the parties lnterssted   in ths subjeot matter being llti-
grtod borore th4 aourt.    You will note rmm ths r0mg0i0g
Hon. Weldon B. Davis,     Page 3, V-79


that if the oounty judge has a peounlary interest        in
ths sub jeot matter over whloh ho ,prosl4ea, ho Is dla-
qualified e Tha protsotlon     of the citizens   against ln-
justioc    end wrong mkes thla enforo4ment sassntlally
nsoeesery o The lrpartlalIty     wbloh la requIr4d of e
judge is lncompetlble    with having a peouniary interest
l;e;Ee;ubject     matter of the litigation    over which he
                         hawvsr    irom your requmst thst
e he pre4kw~o%~&dg4          baa io labelrest In the subject
matter of any of the oases In which he is to al%, there-
fore, w4 do not deem It neoesaary to dlaouss this phase
0r the law.

            Also, the Constitution,    as well as the stat-
utes,  forbids any judge to sit where he msy have been
counsel in the case.      The roeson for this is, of oourse,
it would be highly 1mpolitIo for a judge to decide a
question lawfully    befora him far adjudication,   where ho
had provlously    been of ooun44l for one of the p4rfAes
to a proceeding lnvolvlna     ths qu4lJbion to be daofdsd.
In other. words, such 8 judge is not suflposed by the law
to be thot fslr,    unbin-?a , ungre.iuaiced judae before
Whomthe parties in his, CO,urt,maWtrustfully      .pmsent
tlw, oontror4r4i44.
            The firat    quoatloa that must be d4temlneA      in
 ordrr to anawer your Inquiry,      18 what Ia meant by the
word *oasow as used fn this aoameotlon.          The word ‘*case”
 aa used in the Oonatltutlon      and thla sttitute means any
 logal ooatnroray     betwaoa gwtI~a    with roapeot to a mat-
 tar Or iant or of 18~; any jmtloiable        mattar or thfng
botweoa spp4alng    p4rtlaa pmmnt&        ior daolslan;   any pro-
 oeedlag rightly befOr      a jadg4 wIilih reapsot to any right
 4f the partier,   whether Lagal or equltablo,       and whethar
‘1% lnvolvar a pmporty      right or a para~aal right.
            ft inalud4a ,ordcm wbth4r lnterlooutdti           hzn-
appealable,   or Interlooutory    appealable     awdam.     F
In a matter   p4ndI     beroro the Dlatriot       Court, there Ay
lr la avarlouu 14ga"p oontrovemier       reruttiry;    in lntarloa-
rrtory Or&Or% iYm& whioh a0 appeal rould lia.            Upon rush
an appeal am,
or a r080ir~*
furl   or the baklag
ratid   for l)proral
00  lr lu %80p ub 09 0  p r o o wdlr (
                                     dth mp r o t to a p a r -
tloular  4lalW or mttor,    aad the &ik4, oaah of rhloh’or-
d4r4 apt88 rmohl8g thq AppOAl8tO dourt would ba a "olab',
tba  and there pmpwly    befor,  the Oourt to be justiolat-
ad - draldd bt t)ra OOu&?te   Uo think tin word lon844 in
                                                                              -   L




Hon. Weldon B. Davis,       Page 4, V-79


the aonnection     being considered     .Inoludee such interlocu-
tory appeala and i8 the a(180 In.whIoh he must have been
counsel   to one of thGa=8.             It doss not mean the gen-
eral cause,     proceeding    or 0888, out of,which     the inter-
looutory    order arose, for that oa8e or prooeedlng            is not
berore the Court ior decision one war or the other. The
admlniatration      of an e&ate end guardienship         in probate
is a oontlnoi        pmoadure and 8eoh r8ek of the, year there
ay be an appl2 oatlon filed         In the ~Pmb8t8 Moue in the
name estate     or guerdlanahlp.      However, the subjebt mat-
ter In eaoh Inatanoo may .ba diiierent          and entirely      aep-
arate from the application        filed in the same estate or
&ardianship      at a later and dirrerent       time.   For instanoe,
an applioation      for the sale o? reel estate       might be filed
and next week an applloatlon         might be tiled    for an allow-
anoa 0r an administmtor~s         tees or attorney’8       ices, or
It might be that the oounty judge Is .oallsd           upon for an
approval oi an annual or final         aooount.     In eaah Instanoe
the subjeot     matter boiors the Oourf I8 entirely          ~dirferent,
separate ana dletinot       from the other.       In Volume 6, page
230 of Wotis md Phre8e8, w8 find the folloklng:
             nA pmoudlng       In whloh ‘a mother~(11 appoInted
       guardian of the person’and       property     of   bar datrghtsr
       wa8 a voa8e’ within statute        providing     that no pereon
       ehall slt a8 a judge in ady ase in whIoh he ha8
       been of oou~el,      but oass en %ed with entry of order
       appointing    guardlen whloh .wa8 a ‘ilaalq         .ana appeal-,
       able order, and judge who aoted as attorney              in that
       oa8e wan not .dI8quelI~Ied      rrom hearing and detexmln-
       Ing qurrtion    raleed by order dIr8otIly          &erdien    to’
       tile   her Inv8ntory an4 aooount8,        sinoe that wan e .$ew
       and dI8tInot    *oe~le*~ Organlo hat. II 84, 48 u.s.C.A.
       8 686.     In co Wetilatihi’p    OS‘Rltohoook,        20 Hew. bS3.*
             Al80   In 33 Oorpu8 JurIe.,Page       1004,we   find   the
tollo*I~:
             *A hyd&e who he8 aoted u oowe1          in the ap-
      polntmmt     of a     rdiaa or a raoelver     I8 not neoae-
      eerily   dIrqaalI r ed from aotily     In other ratt8h    r8-
      latiw    td tb utate.       Thu h8 18 not dirquallfled
      frqm eating In auttra       SUetIm     to the 88ttlem8nt
      Of their 8OOOUllt8."                  .
             In th8 oe8e of Tltlo @aaFnty and Sweaty Ooape-
ay 18. Sllolrer,    128 ho.    6@6, tu8tIoe   Kane ot the Bupremo
Ooiart of Oklahoma bd thi8 to 8e7:
             “The l88t e88Iganot      $8 t0 the 8ff8Ot that the
      aourt emd In w*mlIa~ th8 d8fmdant*r               motion to

                                                                          i
    .       .

.       a




                Hon. Heldon ti. Davis,         Page 5, V-79


                        set aside the judgment herein on the ground that
                        the settlement CC ,T.1. Sllnker's gusrdianship             ac-
                        counts    by the county     court VIRS voi?,   for   the rea-
                        son that the county       ,iudge settling    Jaid acoouats
                        was diSa_ualified     to SD act, in that he hs? repre,-
                        sented the. said S. I. Slinker es an attorney            in
                        securing his appointment maay years prior to the
                        date of the said accounting.           The only evldeure of,=
                        rered on this point was t&e order removing Bdr
                        Slinker    as gaardian,    whloh contains a recital       that
                        said judtdg6was disqualified       to sit in the hearia
                        of the petition     for said Slinker's       removal, in that
                        he bed been Of counsel in the natter of SeOUring
                        his appointment.       We do not think that this evi-
                        dence tends to connect the county judge with the
                        accounts settled      In such a manner as to disqualify
                        him from acting In the matter of their settlement,
                        In the case Of State ex 1-41 MCCormiok           v. woody,14
                        Mont, 465, 36 PBO. 1043, It wa8 held:            ‘A judge who
                        had been attardy        for an adnlniatratrir       la not dis-
                        qualified    to try a proaaedlng brought by oertain
                        oredltore    of t& b&ate to remove her, plder sec-
                        tIon M7 a? the Coda of Civil Procedurea providing
                        that a judge ehall not eat as such where he has been
                        8ttOZp8y for either party In the action or'prxeed-
                        IlyO'*
                               SImIlarly,     In Ryan tar   bsIg3,   136 Pat q 804,
                the hurt       In holdl~      thtrt a OountJI judge was not disqual-
                iiiad      to snter   ord8r   for  the 8ale oi a dooedent's land
                beoaues he bed formerly          been ths attorney  for the admin-
                istrator      of the estate     said:
                              "ft is urged on behalf 0s appellants            that Noon-
                        an, the aoaaty judge, harim been the attorney for
                        the administrator,     Rays, was di8qualifIed         under
                        aode section 464, Revised Statutes.           to enter the
                        oXd8r for the sale of the land.          The pertinent por-
                        tion of seotion     404 made     a8 follows:     'A judge shall
                        not aot a8 suoh,in shy of ths follawing            cases:    In
                        an 8otiOn or prooreding.        . , when he has been an at-
                        torney or ooun881 far aIthar party in the aation or
                        proasediry,   Uti888   by tha oonaant of all the parties
                        to the aotion.'      This oas4 ha8 baen before the sup-
                        *4    oourt,  and In Ryan *I# Gsigel,         39 Cole. 35%
                        358, 89 ha.     7m, the 00Wt, 8 eakily throwh             the
                        lats ChIet Juatioe $tC)dC), 1a I&            'The proceed-
                        ing to sell      real    est8te    Is separate and ais-
                        tlaot   fnm ths atslairtntlon         of the   estate   prop*rC;
Hon. Wsldon B. DaVia, Page 6, V-79


     and is a special    proceeding,    recognized by the
     statute.’    Judge NoonanVs profeasionn1        oonnec-
     tion with the estate had entirely        ceased long
     before proceedings were instituted        in this case
     to sell the real estate.       For several years af-
     ter Noonan’s election     to the office     of ‘probate
     judge the title    to the land In question was in-
     volr4d in an adverse proceeding in the land of-
     fice.    Inasmuch as Judge Wootnn had nothing what-
     ever to do, as an .attornay, with the proceeding
     to sell the real estate,      there was nothing in his
     early professional    connection with the adminis-
     tration   proceeding that disqualified       him from
     later,   as county judge, entering the order in
     quest ion ?
     In probrtb mattera,edch    epplioetion   ~which is filed pa
considered a case in a sansb.       Each order which is en-
ter4d by the probate judge may be appealed from and has
all the necesaasy requirement4 to make it a case under
th6 law.    Therefore,  if the prreent aoulaty     jkdgo hms ad-
risod in any partioular    applioation    or ratter n4w or
hereafter   before him, he is diequalified.        If, on the
other hand, the matter is one in which he has never ad-
vised the administrator    or guardian, then it is, the o-
pinion of this Department that .hs is not disqualified
to ,aat just because he haa advised the admi~nlstrator
or guardian in other matters in the sam4 estate.          With
the ~foregoing in mind, it is the further opinion of
this Department that the county judge is not disquali-
fied to aot .in approving annual aocounts,       .orders approv-
ing or confirming the sales o? real estate         and other or-
ders in the same estate or guardianship in which he has
acted a4 aouneel, if he has not advised in the partiou-
lar order which he is now called upon to ent tr or required
to approve action which he had advised upon as counsel,
50 S.W. (2d) 473; ~162 S.W. (26) 419.
            It is hardly oonosivabf4,   howevtr,. how an attor-
ney who haa been oounsal for the administrator       or guardian
of an estate,    aould later sit as county jud(r~e and approve
the final account in that. partiaular    44tat4  withaut pess-
ing upon some phase of the matttr on whloh he has fonner-
ly adviaed.    Therefore,   it is ths opinion of this Depart-
ment that the county judg4,ia diequalified      to approve
the final account     in any 0444 In whioh ho Ma acted as
aollnsel.
           Queetibn   NO. 2.   Is a special   county   judge who
Hon. Weldon B. Davis,             Page 7, V-79


hsa been heretofore  appointed by .the governor to serve
In a certain probate matter qualified   to oontinue to
act since a new county judge has been eltcted    and duly
qualified?
                   “Art.   1932.’ Special   judge in probate   .matter.
                “When a county judge is disqualified            to act
         In any probate matter,            he shall forthwith   certify
         his disqualli’ioation         therein to the Gwernbr,where-
         upon the Governor shall appoint some person to act
         aa speoial    judge in said cast%, who shall sot from
         term to term until such disqualification              ceases to
         axist~    A speoial      judge      ao appointed shall receive
         the same oompansation as is now or may hereafter               be
         provided by law for rsgular             judgea in similar casea.
         and the Commissloners~ Court ahalb, at the beginning
         of eaah ffacol       yeor, inolude        in the budget of the
         county,   a suffirient        sum far the payment of the spec-
         ial judge or judges appointed by the Governor to
         ;;~9f0faF~~;;~‘f’;,f        ;;;;iig    f$ge . As ame~ndedActs

                   The ststutaa providefor the s ecial oountg
ig”,,’    ;;e;gt      from tima ta tireuntil auo ii disqualiffoa-
               and it  naturally     fallaws that the purposes
for which tka special     oounty judge In this ease was ap-
pointed were terminated upon the present and regular
county judge taking the math 4.S office         January 1, 1947,
Now, even if the present oounty judge is disqualified
under  the ~atatutes and Constitution,        he should notify
the Gbvernor of such disqualification          and In turn anoth-
er special county judge would be appointed in his stead,
Therefore,  it is the opinion of this Department, In view
ai the faregoing   statute,      that the speaial county judge
haretofora  appalnted by the Obvernor to serve in certain
probate mattars cannot adntixua to sot since the new and
regular eleated aounty judge’ took tha oath of office             Jan-
uary 1,~ 1947, and qualified       an that data.(Art.1932,V.A.C.S.)
           We realize that w4 havr, more or less,     dis-
auased the matter g4nrr4ll~    but  it is impossible   to ren-
der an opinion on a partidar      case unless we have all
of the faots at hrnd whioh relate to that particular       caaa.
In the event yau bars a partiaalar    ont in mind on whiah
you want an opinion,  you should submit all the fasts per-
taining to that case and state    w&t partioular    order the
.   .   .




            ,Eon.   Weldon B. Davis,        Page 8, V-79


             county judge is called upon to enter.  We con then ren-
             der~an opinion whioh will cover your speoific question,
                                                SUMMARY
                           (1) The present aounty judge of Austin
                    County is not disquellfled      to act in matters of
                    probat    reletlab   to the approval of annual ac-
                    oounttB, reports of sale, eta.,     ewcpt the approv-
                    al of final     moounto,   in which he previously   ado
                    visai ao aoumsl provided that the aubjeot matter
                    now before him as judge has no direct relatlon-
                    ship to that matter in which he advlsed as..uoun-
                    ael.    Orgenie A& ff 84, 48 U.S.C.A.    8 636,    In re
                    y&ian~t          of Hit&mot&, 20 Raw. 353;~33 Corpus
                                  e 004; Title Quoranty and Sure;iQ;t;pany
                    VS. Siinkr,      128 Poo. 694; and Ryan vs.          ,
                    138 Pao. 804,

                              (2)     The opsolal rounty   u&s appointed under
                    Artlolo                              1
                                    1938, Varnoa*a Asnotm 8d al+11 Sbatutes,
                    where the ryeha     oolul(ry j,Mgo lo dirqPrsLiflod    to
                    aot in prabato matters,     aon&& ooatintrs to aat al-
                    ter tho newly elooted     aoMtjy jpdgo quollflao    for
                    the orfioe,  in view or the wording of the above


                                                           YOare very truly




                                                              l%r+~@Allon
                                                              Ar8itiaat




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