         THEATTORNEYGENERAL
                     OFTEXAS


                    April 2, 1949

Ron. Willim B. Teague, Chairman
Judiciary Distriots Committee of House
51st Legislature
Austin, Texas
                      Opinion Ro;V-SO2
                     Re:   constitutionalityof B,B.
                           677 creeting a County
                           Court to be called the
                           Probate Court of Harris
                           County.
Dear Sir:
          House Bill Ro. 677, to which your letter of
request rerers, contains the following title:
         "AR ACT to establish the Probate
    Catlrtaf Harris County; to define the jvr-
    isdiation therQQf and to conrorm to such
    ohange the juxisdiotiohof the County Court
    or Rarrls County; add providing ror,the
    transfer of proceedingsand matters from
    the Couut,yCourt of Harris County to said
    Probate Court of Harris County, declaring
    the validity in transferred cases of writs
    and processes extant at the time of such
    transfer.;providing for the practice and
    procedure in said Court, and for theterms
    of said Court, and the election, qualifi-~
    cation and appointment Of a Judge thereof,
    rnd tho axeoutien of a bond and oath of of-
    rice,~the rilling of vaoancies on said     ,'
    Court, the election or appointment of a
    Speolal iludgo;the providing of a Clerk
    and the duties or the Sheriff a8 to suoh
    Court, and establishingthe fees and corn-
    pensatiou to be paid the Judge thereof,and
    providing for-the pawent or such cornpen-.
    sation; ~aoniorriag,upea,seberJpdsss 113
    said County power to sit and act as the
    Judge of said Court in certain c.ases;pro-
    viding ror eonrmt br ruoonstitutionality
    in said Act; and deolaringan emergenoy."
Hon. THIllIamB. Teague - Page 2        ‘1
                                  (V-802


          Section 1 of the Act declares "there IS
hereby created a County Court to be held in and for
Harris County, to be called the,ProbateCourt of
Harris County."
          Section 2 thus defines the jurisdiction
or the Probate Court or Harris County:
         "Section 2. The Probate Court of
    Harris County shall have the general jur-
    isdiction of a Probate Court within the
    1Imits of Harris County. It shall pro-
    bate'wills, appoint guardians of minors,
    idiots; lunatics, persons non compos
    mentis, and consnondrunkards,grantlet-'
    ters testamentaryand of administration,
    settle ackounts 0r executors, transaat
    all business appertainingto deceased.
    persons, minors, idiots, lunatics, per-
    sons'non compos mentis and common drunk-
    ards, Including the settlement,parti-
    tion and distributionof estates of de-
    ceased persons, lunacy proceedingsand
    the apprenticingof minors as provided
    by law; and on the first day of the InI-
    tial term of said Court, as herein pro-
    vided, all such proceedingsand matters
    then pending In the County Court of Har-
    ris County shall be transferredto the
    said Probate Court of Harris County, alid
    all civil writs and processes thereto-
    fore issued by or out of said County
    Court in such matters or proceedings
    shall be-returnableto the Probate Court
    of Harris County, as though originally
    issued therefrom."
         Seofion 3'deolares:
         "8eotIon 3. The County Court or
    Ferris County shall retain, as heretofore,
    the powers and jurisdictionof said Court
    existingat the time oP the passage of
    this Act, other than those matters provid-
    ed in Section 2 of this Act to be exer-
    cised by said Probate Court of Harris
    county. The County Judge of Harris County
    shall be the Judge of the,County Court of
Hon. William B, Teague - Page 3   (V-802)


      Harris County, and all ex officio duties
      of the County Judge of Harris County, as
      they now exist, shall be exercised by
      the said Judge of the County Court or Har-
      ris County, except Insofar asthe same
      shall, by this Act, be committed to the
      Judge of the Probate Court or Harris Coun-
     sty. .Nothing In this Act contained shall
      be construed as'in anywise Impairing or
      arrsating the jmsaiotion or~the county
      Court atLaw of Harris'County,Texas, or
      ofthe County Court at Law No. 2 of Harris
      County, Texas."
          Se&ion 5 giveesthe Probate Court of Harris
County jurisaictionto issue,certainwrits ana Section
6 p,resoribesthe terms of the Court.
          Seotion 13 of the bill provides that In the
ease of the absence, dIsqualifIcationor incapacityof
the Judge of the Probate Court of Harris County, either
the Judge of the County Court at Law of Harris County
or the Judge of the County Court at Law No. Two of Har-
ris County may sit and act as Judge of said Court and
may hear and determine, either in his own courtroom or
la the courtroom of said Court, any non-contestedpro-
oeeaing therein pending and enter any orders in the pro-
ceeding as the~Judge ofsaid Court might enter in per-
son if presiding therein, except orders approvingclaims
of final accounts, or dischargingguardians, administra-
tors, or executors.
           Section16 of Article V of the Texas Consti-
~tution declares "the County Court shall have the general
 jurisdictionof a Probate Court; they shall probatewIlls,
‘appoint guardians of minors, idiots, lunatics, persons
 non compos mentis and comnon drunkards, grant letters
 testamentaryand of administration,settle accounts of
 executors, transact all business appertainingto deceas-
 ed persons, minors, idiots s lunatics,persons non compos
 mentis, and common drunkards, including the settlement,
 partition, and distributionof estates of deceased per-
 sons) and to apprenticeminors, as provided by law; 0 em  '
          The bill does not attempt to abolish the Coun-
ty Court ror Harris County, but it creates another County
Court to be known asthe~Pr0bat.eCourt of Harris County,
Hon. William B. Teague - Page 4   (V-802)


          The Legislature is as powerless to abolish
the oonstitutionaljurisdiotionof a constitutional
court as it is to abolish the court itself. It Is
corollaryto this further to say that the Legislature,
where there exists a constitutionalcourt with a oon-
stitutional jurisdiction,is powerless to create anoth-
er court of any name and give to it the exclusive jur-
isdiotionof the constitutionalcourt.
          In Reasonover v. Reasonover, 122 Tex. 512
50 S.W. 26 817 th S         C   t hefd that the Leg&
lature cannot ~akeeaw$r%?m i”h’B District Court juris-
diction given It by the Constitutionover divoroe
oases. The analogy Is perfeot and is controllingof
the present ,inqulry.We quote from the ‘R asonover
case anticipatingthe possible auggestlon+ILiirs    pro-
vision of Section 1 of Article V of the Constitutionla
an answer. THat Se&ion reads:
           “The Legislature,may establish such
      other Courts as it may deem neaessary and
      prescribe the jurisdiotfonand organiza-
      tion thereof, apa may conform the juris-
      diction of the District and other inferior
      Courts thereto.m
                                 ..-,
                                 .~.
                                  ,.
          Speaking to the very point, Mr. Justice Pler-
.son said that this provision “was not intended to auth-
 orize the Legislature to deprive the regular District
 Cour~tsof any of the jurisdictionexpressly conferred on
 them by the Constitution;nor that the jurisdictionof
 the District Court should be conformed to that of the
 statutory courts by destroying the constitutionaljuris-
 diction of the District Courts, or by transferringa
 part or all of it exclusivelyto a statutory court, but
 rather that such jurisdictionas fixed in the Constitu-
 tion may be made concurrentwith suoh other Courts cre-
 ated by statute. . I .
          “If ‘conform’means *to deprive,’ the
     LegislatureZs empowered to take away from
     a regular District Court all the,jurisdic- ,’
     tion given it by the Constitution,and con-
     fer it upon the statutory courts; This
     would not be loonforming’but ‘destroying’
     the jurisdictionof the District Court to
     the extent the Legislaturemight eleot. It
     is difficult to believe the people so in-
     tended, or that they intended to give to
.




    Hon. William B. Teague - Page 5’ (V-602)


         the word loonform*a meaning other than
         Its ordinary meaning.”
               Whatever one may think of the soundness of
     the definition of uoonformw as applied by Justice
    ‘Pierson, it is the established law of this State and
     as such we must conform to it unless and until the
     Supreme Court itselr construesSeotion 1 differently.
              But we are not left to analogies in the pres-
    ent’inquiry~.In State v, Gillette’sEstate, 10 S,W, 26
    924, the precise question was involve8 and decided,
    Judge Critz, member of the Coauaissionof Appeals to the
    Supreae Court, writing the opinion, said:
              “If the act conferringprobate juris-
         diction on the SO-Oalledcounty oourt at
         law~of Eastland county can be sustained at
         all, it must be done under that part of seo-
         tion 1 or artfole 5 or our state Constitu-
         tion above referred to. 0 0 .,
              “However, this provision of article 5
         rust be read and construed so as to give ef-
         foot and meaning to sectlen 22 of the same
         article, as no constructionshould be indulg-
         ed in that will render any part of article
         5 reaningless. There is no escape from the
         ~onolusion that it was the intent and express
         purpose of section 16 of article 5 of the Con-
         stitution to confer exclusive orfginal.pro-
         bate jurisdictionon the county courts. Any
         other constructionof the several provisions
         of article 5 wbuld render section 22 of said
         article absolutelymeaninglessand voida Se+
         tion 22 of’article 5 expressly provides that
         theLegislature has power to increase, dimin-
         ish; or change the civil and criminal juris-
         diction or oounty courts and conform the jur-
         isdiatlonof the district and other inferior
         oourts to such change. 0 e D
              “We therefore conclude that section 22
         of article 5 of the Constitutionof this state,
         in so far as the probate jurisdictionof the
         county court is concerned,speaks exclusively
         as to the right of the Legislature to in-
         ,erease,change, or diminish the jurisdiction
 Hon.William B. Teague - Page 6 (V-802)

     of such courts as prescribed aud defined
     underseotim l6 of the same article, and
     thatsaidsectionP: speaksexclusivelyas to
     the right or power of the Legislature to
     ooqform the jurisdictionof the district
     or other inferior courts to such change.
     . . .
          “It follows, therefore, that the
     part of the aot which attempts to create
     the ‘County Court at Law for Xastland
     Couuty, Texas,t and give It probate jur-
     isdiction,and also that part of the act
     which attempts to deprive the constitu-
     tional county court of Eastland county of
     the exclusive probate jurisdiotion~oon-
     ferred thereon by the Constitution,is un-
     constitutionaland void, and all pretend-
     ed probate orders, judgments,and decrees
     entered by said county court at law with
     reference to the estate of F. G. Gillette,
     deceased, were and are utterly without
     force and void.”


          H. B. 677, 51st Legislature,which
     proposes to divest the County Court of pro-
     bate juriadiction,andto create a separate
     “Probate Court” which would be given such
     jurisdiction,is unoonstitutional. Article
     V, Section 16 of the Texas Constitutionoon-
     fers that jurisdictionon the County Court,
     and it my~not be divested except by con-
     stitutionalamendment. Reasonover v. Rea-
     aimover, 122~Tex. 512, 58 S W 2d 817 (1933);
     State. Gillette’s Estate,‘16 S.W. 26 984
     (Tex. Comm. App. 1928).
                             Yours very truly,
APPROVED:               ATTOREEY GEWERAL OF TEXAS

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 ATTORWFX GENERAL       BY
                             ii!&i3e*
0S:wb                        Assistant
