H.B. No. 1152

DEFINITION OF STATUTORY PROBATE COURT

Bill Description

Governor Bush signed HB 1152 on May 7, 1997. HB 1152 becomes effective September 1, 1997. HB 3086, which Governor Bush signed June 20, 1997, creates a 2-year window for non-statutory probate courts exercising probate court jurisdiction on August 31, 1997 (the day before the effective date of HB 1152).

HB 1152 amends Sections 3(ii) and 601(29) to read as follows: (additions are CAPITALIZED, deletions are [in brackets])

Section 3(ii) "Statutory probate court" MEANS A [refers to any] statutory court DESIGNATED AS A STATUTORY [presently in existence or created after the passage of this Act, the jurisdiction of which is limited by statute to the general jurisdiction of a] probate court UNDER CHAPTER 25, GOVERNMENT CODE. A COUNTY COURT[, and such courts whose statutorily designated name contains the word "probate." County courts] at law exercising probate jurisdiction IS [are] not A statutory probate COURT [courts] under this Code unless THE COURT IS DESIGNATED A STATUTORY PROBATE COURT UNDER CHAPTER 25, GOVERNMENT CODE.[their statutorily designated name includes the word "probate."]
Section 601(29) "Statutory probate court" means a statutory court DESIGNATED AS A STATUTORY [whose jurisdiction is limited by statute to the general jurisdiction of a] probate court UNDER CHAPTER 25, GOVERNMENT CODE. A COUNTY COURT [and a court whose statutorily designated name contains the word "probate." County courts] at law exercising probate jurisdiction IS [are] not A statutory probate COURT [courts] under this chapter unless the COURT IS DESIGNATED A STATUTORY PROBATE COURT UNDER CHAPTER 25, GOVERNMENT CODE. [statutorily designated name of the county courts at law includes the word "probate."]


Chapter 25 of the Government Code governs statutory county courts. Subchapter A lays out the general provisions affecting county courts at law. Section 25.0003(d) gives county courts at law probate jurisdiction concurrent with the constitutional county courts, except that, under Section 25.0003(e), in counties with a statutory probate court, the statutory probate court is the only county court created by statute with probate jurisdiction.

Subchapter B lays out the general provisions relating to statutory probate courts. Section 25.0021 provides that a statutory probate court "as that term is defined in Section 3(ii), Texas Probate Code," has the probate jurisdiction given it by the probate code. Section 25.0022(a) provides that "statutory probate court" has the meaning assigned by Section 3, Texas Probate Code. Section 25.00266 provides: "If a provision of this subchapter conflicts with a specific provision for a particular court or county, the specific provision controls."

The two counties most often mentioned as possibly being affected by HB 1152 are Brazoria and Nueces. I don't practice in either county, so I have no personal experience with this issue. However, I did pull both counties' county court at law enabling legislation from the Government Code.

Section 25.0221 of the Government Code is the apparent basis for asserting that the Brazoria County courts at law are "statutory probate courts" and/or have the jurisdiction of a statutory probate court. This section states that Brazoria County has the following statutory county courts: "(1) County Court at Law No. 1 and Probate Court of Brazoria County; (2) County Court at Law No. 2 and Probate Court of Brazoria County; and (3) County Court at Law No. 3 and Probate Court of Brazoria County." Under Section 3(ii) of the Probate Code as it now exists (i.e., before HB 1152 becomes effective), a "statutory probate court" includes "courts whose statutorily designated name contains the word 'probate.'" By changing the definition of "statutory probate court" in Section 3(ii) to eliminate the reference to courts with the word "probate" in their name, HB 1152 may have effectively eliminated the statutory probate court status of the Brazoria County courts at law. (But see HB 3086.) HB 3086 may save statutory probate court jurisdiction for the Brazoria County courts, but this result is unclear. HB 3086 speaks only in terms of jurisdiction: it doesn't change the definition of statutory probate court.

The county courts at law of Nueces County don't have the word "probate" in their name. Rather, Section 25.1802(a)(2) gives such courts "the general jurisdiction provided by Section 25.0021 for a statutory probate court and the jurisdiction and authority of a probate court or a statutory probate court under Sections 4, 5, 5A and 5B, Texas Probate Code." Thus, the authority of the Nueces County courts at law to act to exercise the authority of statutory probate courts arguably is unaffected by HB 1152, since such authority is not dependent upon the definition of "statutory probate court" in Section 3(ii) of the Probate Code. Nonetheless, Senator Truan, a resident of Corpus Christi, apparently was concerned enough with the possible effects of HB 1152 to push for passage of SB 1952 (whose terms were added to HB 3086 as an amendment in the Senate).

It remains to be seen just how effective HB 1152 will be at denying, in effect, "statutory probate court" status to county courts at law with these special jurisdictional provisions. My understanding is that the Texas Constitution now permits the legislature to specify the jurisdiction of all county courts at law. If the legislature, in the Government Code, says that a court has the jurisdiction and all of the rights, powers and privileges of a statutory probate court (or if it tracks the Probate Code provisions that are unique to statutory probate courts and says a county court at law has all those powers, etc.), what effect will HB 1152 have?


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Copyright © 1997 by Glenn M. Karisch. This page was last revised on June 23, 1997.