                                    OF TEXAS
                              Auwrnv.       TXXAS        78711




                                        October     29, 1974


The Honorable     Henry Wade                               Opinion    No.    H-   434
District Attorney
Dallas County Government     Center                        Re:     Constitutionality    of
Dallas,  Texas 75202                                               1973 amendments           to
                                                                   Section 5. Texas
Dear   Mr.   Wade:                                                 Probate    Code

     Your request for our opinion asks whether~ a 1973 anmndment      to
Section  5 of the Texas Probate  Code is constitutional.  ‘As amended,
Section  5 of the Probate  Code now reads in pertinent   part:

              The digtrict   court shall have original     con-
         trol and jurisdiction     over executors,     adminis-
         trators,    guardians    and waids under such
         regulations   as may be prescribed        by law.

              In those counties in which there is no
         statutory   probate     court,    county court at law
         or other statutory       court exercising      the juris-   .’
         diction of a probate       court,   the district    court,
         concurrently     with the county court shall have
         the general    jurisdiction     of a probate     court ~ D ~ ~

              In those counties where there is a statutory
        probate     court,   county court at law, or other
         statut:ory court exercising         the juri,sdi.ctions
        of a probat.e court,. all applications,            petitions
        and motions       regarding    probate,     administr’ati,onS,
        guardianshi,ps,      and mental illness        matters      shall,
        be filed and heard in such courtsi, and the con-
        stitutional    county court,      rather than in the
        district    courts D D . ~ All courts exercising’
        original    probate    jurisdiction     shall have the
        power to hear all matters           incident    to an estate,
        including     but not limited     to, all claims by or




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The Honorable     Henry    Wade,    page   2    (H-434)




        against an estate,     all ‘actions for trial of
        title to land incident     to an estate and for the
        enforcement    of liens thereon incident to an
        estate and of all actions      for trial of the right
        of property  incident to an estate.

     You suggest that provisions      in the amendment        extending  the county
court’s   jurisdiction in probate matters       to incidental    actions concerning
title to land may conflict   with Article      5, Section 16 of the ~Texas Consti-
tution which provides    in pertinent    part:

             County    Courts:   jurisdiction     . e .

            . . . shall~ not have jurisdiction            of suits   for
        the recovery   of land.  . . .

              The County Court shall have the general                juris,-
        diction of a Probate   Court ; . . .

     The effectiveness     of the 1973 amendment      to the Probate   Code (Acts
1973, 63rd Leg.,      p. 1684, ch. 610) was made contingent      upon the adoption
of a proposed     amendment     to Section 8 of Article   5 of the Constitution.
(Acts 1973, 63rd Leg.,       po, A-107,   S. J.R. No. 26)

     That amendment       was adopted on November   6, 1973, and,              as amended,
Section 8 of Article      5, Texas Constitution, now provides:

              The distri.ct court,    concurrently     with the
        county court,      shall have the general       juris-
        diction of a probate      court . D D s The Legis-
        lature,     however,    shall have the power,        by
        local or gene~ral law; Section         16 of Article     V
        of this Constitution      notwithstanding,      to
        increase,     diminish    or eliminate     the juris-
        diction of either     the district   court or the
        county court in probate tiatters,           and in
        cases of any such change of jurisdiction,              the
        legislature     shall also conform      the jurisdiction
        of the other courts to such change e D 0 :
        (Emphasis      added)




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    The Honorable     Henry   Wade,     page   3    (H-434)




        In determin-ing    the answers      fo your questions     we must be guided    by
    two well-established     principles     of our law:

                 1. All provisions        of the Constitution      relative,
            to the same subject are to be construed              together
            and interpreted       in such a manner as will avoid a
            conflict,    if possible.     Yeary   v. Bond, 384 S. W. Zd
            376. (Tex. Civ. App. --Amarillo~           1964, writ      ref’d.
            n. r* e. ); Railroad      Commission     v. St. Louise South-
            western     Railway     Company,     443 S. W. 2d 71 (Tex.
            Civ. App. --Austin         1969, writ ref;d.    n. r. e. ).

                 2. In passing upon the constitutionality      of a
            statute,  there is a presumption    of validity.    It is
            presumed     that the Legislature  has not acted
            unreasonably     or arbitrarily.   Robinson    v. Hill,
            507 S. W. 2d. 521 (Tex.     1974).

     Because     of the exp,ress language        of amended Article     5, Section 8,
Texas Constitution,       ,.that the Legislature     shall have the power to increase,
diminish,     or eliminate     probate jurisdiction     of the district   and county
courts,    “Section    16 of Article   V of this Constitution     notwithstanding,      I’ we
believe   the above guidelines       require   us to conclude    that Section 16 does
not affect the validity      of the Probate     Code amendment       providing     that all
courts exercising       probate jurisdi,ction       may hear all matters       incident to
an estate,    includi,ng questions     of land title,

     It is our opinion,    therefore,    that the 1973 amendment      to Section   5 of
the Texas Probate       Code is constitutional,      and that -all courts,  including
county courts,     exercising     probate jurisdiction    may now hear all matters
incident   to an estate,    including   matters   of land ti,tle.

    Since your other questions  were contingent                 upon a finding that the
probate  code amendment    was unconstitutional,                we need not answer them.




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The Honorable   Henry   Wade,   page   4        (H-434)




                            SUMMARY

           The 1973 amendment     to Section          5 of the Texas
       Probate Code is constitutional.

                                               Very   truly     yours,




APPROVkD:
                                   v           Attorney       General    .of Texas




                                           -




DAVID M. KENDALL,       Chairman
Opinion Committee




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