Honorable Carl A. Parker      Opinion No. JM-1244
Chairman
Education Committee           Re: Jurisdiction of the 356th
Texas State Senate            District Court over probate
P. 0. Box 12068               matters  (RQ-2040)
Austin, Texas 78711

Dear Senator Parker:

     you ask whether the 356th District Court       of   Hardin
County has jurisdiction of probate matters.

     Section 24.502 of the Government Code provides for the
creation of the 356th Judicial    District Court and makes
provision for its having concurrent   jurisdiction with the
county court in designated  types of cases. Section   24.502
states:

        (a)   The 356th Judicial District is composed
        of Hardin County.

        (b)   The 356th District Court has concurrent
        jurisdiction over all matters     of civil and
        criminal iurisdictia     original   and appel-
        late, in cases over which the countv court
        has jurisdiction under the constitution    and
        laws of this state. Matters and proceedings
        in the concurrent   jurisdiction of the 356th
        District Court and the county court may be
        filed in either court, and all cases of
        concurrent jurisdiction   may be transferred
        between the 356th District Court and the
        county court.   (Emphasis added.)

     The matter  of whether the 356th District    Court has
jurisdiction of probate cases turns on whether the granting
to the court of concurrent jurisdiction with county courts
in civil matters vests the court with probate jurisdiction.
The issue becomes one of whether probate jurisdiction  comes
within the ambit of civil jurisdiction under your scenario.




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Honorable Carl A. Parker - Page 2      (JM-1244)




     Section 8 of article V of the Texas           Constitution
provides the jurisdiction of a district court

        consists of exclusive, appellate, and origi-
        nal jurisdiction of all actions, proceedings,
        and remedies,   except in cases where exclu-
        sive, appellate, or original jurisdiction may
        be conferred  by this Constitution or other
        law on some other court, tribunal, or admin-
        istrative body.

     Section 16 of article V of the Texas Constitution
addresses the matter of the jurisdiction of county   courts.
It delineates the county court's original civil and criminal
jurisdiction as well as its appellate jurisdiction in civil
and criminal matters of which justice courts have original
jurisdiction.  Section 16 further provides the "County Court
shall have the general    jurisdiction of a Probate  Court,"
specifically setting forth such matters as probating  wills,
appointing guardians,  granting letters of administration,
etc., as provided by law.

     Section 29 of article V of the Texas Constitution   also
treats the civil, criminal    and probate   jurisdiction   of
county courts separately.    Section 29 provides   that the
county court "shall hold at least four terms for both civil
and criminal businessw  annually.  In separately  addressing
the county court's jurisdiction     over probate    matters,
section 29 states that %aid court shall dispose of probate
business either in term time or vacation,    under such re-
gulation as may be prescribed by law."

     While we have found no Texas cases which have addressed
the matter,  opinions   of courts   from other jurisdictions
support our conclusion that "civil causes and actions, civil
suits and civil cases do not include any case arising   under
the county court's probate jurisdiction."             ell
Wickoa,  278 P. 1088 (Okla. 1929);          MC    '   150 ;.
1046 (Okla. 1915); M    ADDeEd Of Sl%;,     96??-%;,   (Conn.
1915); State v. m    I 45 N.N. 526 (Wis. 1890).
        A review of jurisdiction vested in the numerous  statu-
tory county courts of this state reflects that the legisla-
ture treats civil, criminal     and probate jurisdiction  sepa-
rately.     Gov’
               t  Code ch. 25.

     Section 5 of the Probate Code provides the circum-
stances in which the district court may acquire jurisdiction
in contested probate matters.   Subsection (b) of section   5
provides in pertinent part:




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Honorable Carl A. Parker - Page 3     (JM-1244)




          In those counties where there is
       statutory probate court, county court at 1::
                   statutory          exercising    the
       &~%&.on       of a probzE2ourt,     all applica-
                petitions    and   motions    regarding
       probaie,    administrations,     guardianships,
       limited guardianships,     and mental    illness
       matters shall be filed and heard         in the
       county court, seat         that in     contested
       probate m#exf.     the iydae of +a        county
       court S                motion for &MU    on ths
                      v Dartv to the        DrOCeedin&
       gccorha    to the mot-St            as Drovided
       Bv section 25.0022. ~Government       code.the
        hear the contested DO-        of the DrOCeedlnQ,


        filed in distzict coue .     The county court
        shall continue to exercise jurisdiction     over
        the.management of the estate with the excep-
        tion of the contested matter until         final
        disposition of the contested matter is made
        by the assigned judge or the district     court.
        In contested matters transferred       to    the
        district court in those counties, the dis-
        trict court, concurrently    with the county
        court, shall have the general jurisdiction of
        a probate   court.   IJcon resolution   of all
        pendim    contested matters.   the    contested
        ~,ortionof              .  .                  be
        transferred bv the district court to the
        countv   court for further DrOCeedinCIS not
             sistent with the orders of the district
        !S!C!W&. (5mphasis added.)
     The granting of concurrent jurisdiction   in civil and
criminal matters over which the county court has jurisdic-
tion to the 356th District Court does not vest the court
with original probate   jurisdiction.  Its jurisdiction    is
limited to contested probate matters that may be transferred
to the district court pursuant to subsection (b) of section
5 of the Probate Code.



           The 356th Judicial  District Court   of
        Hardin County's jurisdiction  over probate
        matters is limited to contested    probate




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Honorable Carl A. Parker - Page 4       (JM-1244)




          matters  that may be transferred     to  the
          district court pursuant to subsection (b) of
          section 5 of the Probate Court.




                                                   MATTOX
                                        Attorney    General of Texas
MARY   msLER
Pirst Assistant Attorney General

IMJ l4ccREARY
Executive Assistant Attorney General

J'UDGEZOLLIESTEAHLRY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney    General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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