Commentary on HB 777 and HB 778

1999 Legislation:

Commentary on HB 777/HB 778 -- Appertaining to and
Incident to Estates

One of the most controversial and contentious issues in the 1997 legislative session was the power of statutory probate courts to transfer cases to themselves under Sections 5B and 608 of the Probate Code. The statutory probate judges were pushing legislation to broaden the 5B/608 transfer power to include all matters over which they have jurisdiction (not just matters which are appertaining to or incident to an estate as was the law). Meanwhile, other bills attempted to restrict the power of statutory probate courts to transfer cases -- requiring the consent of the transferring court, for example. Thrown into this mix was the effort of statutory probate judges to assure that a county could not create a bona fide "statutory probate court" merely by sticking the word "probate" in the court's name (as Brazoria County had done), an effort which was countered by a bill that would grandfather noncompliant pseudo-statutory probate courts already in existence (Brazoria and Nueces Counties). For a discussion of these matters, see the 1997 Legislation information on the Texas Probate Web Site and my paper entitled "Are the Winds of Change Blowing for Texas Probate Courts? Or . . . 5B, Or Not 5B, That is the Question" .

The only legislation affecting the 5B/608 transfer power which emerged from the 1997 session was SB 506, which amended Section 5A(b) of the Probate Code to include all matters described there -- most importantly, suits by and against an administrator or executor -- as matters which are "appertaining to and incident to" a decedent's estate. This would seem to broaden the 5B transfer power indirectly, since Section 5B gave statutory probate courts the authority transfer cases which are appertaining to or incident to an estate. Thus (so the logic goes), if the definition of what is appertaining to and incident to an estate in Section 5A(b) is broadened, then the 5B transfer power is broadened.

Unfortunately, SB 506 in the 1997 session included "for the purposes of this section" in its amendment of Section 5A(b). This raised the question of whether the "for the purposes of this section" language made the broadened definition inapplicable for purposes of Section 5B -- which, of course, is a different section. Also, SB 506 affects only decedent's estates -- a similar change to Section 607 (the section regarding guardianships which corresponds to Section 5A) was not made.

A joint committee of representatives and senators was appointed to study the probate court system during the interim between the 1997 and 1999 sessions. The committee's report, which was made final on January 20, 1999, is recommending to the legislature that "a mirror provision was intended and should be added to §607 to ensure that no additional court resources are spent arguing about the meaning of "appertaining to and incident to" in the guardianship section of the code."

On January 19, 1999, Representative Senfronia Thompson (who was chair of the House Judicial Affairs committee in 1997 and who was a member of the joint committee), introduced two bills on this subject. HB 777 would make the "mirror" change to Section 607, while HB 778 would get rid of the confusing "for the purposes of this section" language in Section 5A(b). (Of course, HB 777 leaves out the "for the purposes of this section" language from its change to Section 607.)

The joint committee report strongly favored the idea of broad jurisdictional powers for specialty probate courts, but only if counties set up full-blown statutory probate courts. HB 777 and HB 778, coupled with the legislative history reflecting in the joint committee report and the favorable caselaw developments (see, for example, In Re Graham, ___ S. W. 2d ____ (Tex. 1998)), would firmly establish these court's broad transfer powers, probably for years to come. [01/25/99]