H.B. No. 3086

ASSIGNMENT AND RECUSAL OF STATUTORY PROBATE JUDGES; 2-YEAR JURISDICTION WINDOW FOR SOME COURTS; LEGISLATIVE STUDY COMMITTEE

Bill Description

Governor Bush signed HB 3086 on June 20, 1997. The effective date of HB 3086 is September 1, 1997.

HB 3086 started out as a bill that addressed some administrative issues involving statutory probate judges. Late in the session, however, it became a vehicle for a backlash against HB 1152 -- the definition of statutory probate court bill which passed earlier in the session.

ADMINISTRATIVE ISSUES AFFECTING STATUTORY PROBATE JUDGES

HB 3086 amends Section 25.0022 to clarify the procedure whereby a statutory probate judge may be assigned to hear a probate matter in a county court or a statutory county court. It also adopts a procedure for recusal of statutory probate judges (Section 25.00255) that is modeled after the procedure for district courts.

STATUTORY PROBATE COURTS -- ARE THEY OR AREN'T THEY?

HB 1152 passed the Legislature on April 28, 1997, and was signed by the Governor on May 7, 1997. HB 1152 changed the definition of a "statutory probate court" in Sections 3 and 601 of the Probate Code. The new definition, effective September 1, 1997, excludes courts which have the word "probate" in their names but are not otherwise statutory probate courts under Chapter 25 of the Government Code. This affects one or more counties around the state who had statutory county courts which were exercising the broader jurisdiction given to statutory probate courts even though they didn't meet all of the requirements for statutory probate courts in the Government Code. The two counties most often mentioned as possibly being affected were Brazoria and Nueces Counties.
Please don't shoot the messenger -- I don't know if the courts in these counties are affected by HB 1152 -- see my discussion of HB 1152 for more information. Since I do not practice in either of these counties, I will leave it to persons familiar with and directly affected by their courts' jurisdiction to resolve the questions regarding their jurisdiction.


Passage of HB 1152 caused a backlash, primarily in Brazoria and Nueces Counties. Senator Carlos Truan of Nueces County quickly introduced a bill (SB 1952) that provided that, if a court had the jurisdiction of a statutory probate court on August 31, 1997 (the day before HB 1152's effective date), the court retained that jurisdiction notwithstanding HB 1152. Senator Truan's bill moved quickly through the Senate, where it passed May 16, 1997.

The version of SB 1952 that passed the Senate was different from the introduced version. The bill that passed the Senate would have allowed those courts exercising statutory probate court jurisdiction on August 31, 1997, to continue to exercise that jurisdiction for a period of two years. Furthermore, this version of SB 1952 required a 2-year study of probate courts by a special joint committee of the Legislature.

SB 1952 hit the House and was referred to the Judicial Affairs Committee. Representative Hartnett, the author of HB 1152, is vice chair of the Judicial Affairs Committee. As the session wound down, it appeared unlikely that SB 1952 would make it out of Judicial Affairs and onto a House calendar for a vote. Those senators favoring SB 1952 were undeterred. They simply tacked the substance of SB 1952 onto HB 3086, a bill authored by (guess who?) Representative Hartnett that just happened to be pending in the Senate. The House concurred in the Senate amendments to HB 3086, so Senator Truan's "fix" to HB 1152 became law.

HB 3086 adds subsection (g) to Section 5 of the Probate Code, which reads as follows:

(g) Notwithstanding any other law, a statutory county court created under Chapter 25, Government Code, that has the jurisdiction of a statutory probate court on August 31, 1997, retains that jurisdiction after that date. This subsection expires August 31, 1999.


Section 4 of HB 3086 sets forth the parameters of the legislative study committee:

SECTION 4. (a) An interim committee is created to study the statutory probate system and to determine the appropriate jurisdiction of probate courts in this state.

(b) The committee consists of six members, of whom:

(1) three shall be appointed by the lieutenant governor from the members of the Senate Committee on Jurisprudence; and

(2) three shall be appointed by the speaker of the house of representatives from the members of the House Committee on Judicial Affairs.

(c) The presiding officers appointing the members of the committee shall each appoint a presiding officer from among the members appointed to the committee.

(d) The committee shall convene at the call of the two presiding officers.

(e) The committee shall study the statutory probate system of this state and the jurisdiction of the various courts with probate jurisdiction and shall make recommendations concerning the appropriate jurisdiction of those courts.

(f) Not later than February 1, 1999, the committee shall report the committee's findings and recommendations to the lieutenant governor, the speaker of the house of representatives, and the members of the 76th Legislature.

(g) Not later than the 15th day after the effective date of this Act, the lieutenant governor and the speaker of the house of representatives shall appoint the members of the interim committee created under this section.

Note that the study committee is not limited to the HB 1152/SB 1952 issue. The committee is charged with studying "the statutory probate system . . . and the jurisdiction of the various courts with probate jurisdiction." I don't know if this committee is a reason to be optimistic (an opportunity to clean up some messy jurisdictional issues and reinforce our system of specialty probate courts with broad jurisdiction) or pessimistic (the camel's head is under the tent and there's no telling what mischief will occur). From my current perspective -- someone who has followed the legislative process in this just-ended session -- I tend to be pessimistic about this committee. Perhaps my perspective will change as the session becomes just a fond memory . . . .


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Copyright © 1997 by Glenn M. Karisch. This page was last revised on June 25, 1997.