The Texas Probate Web Site

 

1999 Legislation:
DRAFT REPORT OF THE JOINT COMMITTEE
ON
STATUTORY PROBATE COURT JURISDICTION

Pursuant to H.B. 3086, creating the Joint Committee on Statutory Probate Court Jurisdiction ("the Committee"), the Lt. Governor and the Speaker of the House each appointed three members of this committee from the membership of the Senate Jurisprudence Committee and the House Judicial Affairs Committee, respectively. Lt. Governor Bob Bullock appointed Senator Jeff Wentworth as Co-Chair and appointed Senators David Cain and Rodney Ellis as the Senate's additional members. Speaker of the House James M. "Pete" Laney appointed Representative Senfronia Thompson as Co-Chair and appointed Representatives Will Hartnett and Jim Solis as the House's additional members. The Committee was charged with studying the statutory probate court system of Texas and the jurisdiction of the various courts with probate jurisdiction. Furthermore, the Committee was charged to make recommendations for legislative action concerning the appropriate jurisdiction of those courts.

Notices of the hearings were sent to interested parties. At the initial hearing in Corpus Christi, the Committee met and took both written and oral testimony from the four statutory county court judges of Nueces County, two of the three statutory county court judges of Brazoria County, the statutory probate judge of Galveston County, and the Presiding Statutory Probate Judge of Texas about their concerns regarding the statutory probate court system. Written testimony was submitted by Judge Nikki DeShazo of the Dallas County Probate Court, Judge Russell Austin of the Harris County Probate Court No. 1, and Judge Guy Herman of the Travis County Probate Court No. 1.

Before the creation of the statutory probate courts and the reformation of Texas' probate system, it was not uncommon for decedents' estate administration to take three or four years because most estate issues were appealed to the district courts for a trial de novo. Often an estate would have several distinct matters being litigated at the two levels of courts having probate jurisdiction--the county court with its original probate jurisdiction and the district court with its appellate and related jurisdiction. Only after the trial de novo could an appeal through the standard appellate system be initiated. The old system, while slow and cumbersome, had a logical basis. When the Texas probate court system originated, there were very few lawyers available to serve as judges. It was determined in the early days of statehood that the constitutional county courts would be the main probate courts of the state and there would be no requirement that the county judge be a lawyer. Appeal of decisions by these non-lawyer judges would be to the state's district courts rather than the appellate courts in the first instance. At the district court level, a final decision would be made by a lawyer-judge due to the requirement that district judges be licensed attorneys. Having a lawyer-judge make a determination in a dispute often satisfied the litigants, making further appeals unnecessary. Only after a final decision by the district court was entered could an appeal lie to the appellate courts.

Although well-intentioned, the old system was constantly under attack because it caused persons to have to proceed first before a non-lawyer judge before one could proceed before a lawyer-judge whose judgment could be reviewed in the appellate system. The creation of statutory probate courts was a legislative effort to bring rationality to the probate system. A system of lawyer-judge probate courts was established in the largest metropolitan counties of the state. Having statutory probate courts presided over by lawyer-judges was, in part, an attempt to reduce the number of required appeals in the old two-appeal system by having the initial decision in a probate dispute made by a lawyer-judge who specialized in probate matters. The statutory probate courts also reduced the workload of the overburdened constitutional county judges in those metropolitan areas with large probate caseloads. And yet, the two-appeal procedure was still required under the Constitution.

Even with the hindrance of the two-appeal process, it was not long before the four most populated counties of the state's two major metropolitan areas (Dallas, Galveston, Harris, and Tarrant Counties) had statutory probate courts. By 1957 there was a fledgling statutory probate court system, with judges specializing in probate and guardianship matters. The counties with these courts recognized the benefits of a systematic approach to probate and guardianship, and provided their newly established courts with specialized staff to aid the statutory probate courts in their supervision over on-going estates. It was clear to probate judges and practitioners that the two-step appellate process still hindered the development of an efficient probate system. A series of constitutional amendments between 1979 and 1985 not only reformed the probate system, but also reformed the judicial system of our state. Both the two-step appellate process and the jurisdictional grants of courts were taken out of the Constitution. This now allowed the Legislature to determine the jurisdiction of the various courts in the state. The Legislature responded to these constitutional changes by enlarging the jurisdiction of the statutory probate courts and by creating statutory probate courts in an additional four counties: Bexar, Denton, E1 Paso, and Travis. These additional statutory probate courts were either newly created or transformed from existing statutory county courts (formerly known as county courts-at-law) to statutory probate courts by amending the existing Government Code enabling statutes.

Prior to 1979, probate jurisdiction of the state's probate courts was limited to the probating of wills, determining heirship, creating guardianships, and those related matters in which the controlling issue was the collection of estate assets and payment of debts of an estate. District courts had no original jurisdiction over these matters, but did have some limited probate jurisdiction. The district courts' jurisdiction was limited to controlling the behavior of personal representatives in the management of estates and over probate matters in which the controlling issue was not the collection of estate assets and the payment of debts. In 1979, the jurisdiction provisions of the Texas Probate Code (Sections 5 and 5A) were amended to enlarge the jurisdiction of the statutory probate courts to give them concurrent jurisdiction with the district courts in supervising the behavior of personal representatives and in law suits filed by or against a personal representative when the subject matter was not appertaining to an estate. At this point, the statutory probate courts essentially had the jurisdiction of both county and district courts in probate matters. This legislative enlargement of the statutory probate courts' jurisdiction continued to be questioned despite the Legislature's previous repeated attempts to clarify that it wanted statutory probate courts to have the broadest jurisdiction possible so that estates of decedents and estates of wards could be expeditiously and efficiently administered.

The Legislature's first attempt at clarification came after the Texas Supreme Court decision in Seay v. Hall, 677 S.W.2d 79 (Tex 1984), which ruled that the 1979 broad jurisdictional grant to statutory probate courts was limited by common law concepts limiting probate court jurisdiction. In response, the Legislature superseded the common law constraints vis a vis the statutory probate courts by making it clear that the Legislature wanted the statutory probate courts to have broad jurisdiction and passing legislation giving them the jurisdiction of both a county and district court in probate matters.

Despite this legislative mandate, the decisions of several lower appellate courts during the late 1980s limited the Legislature's broad jurisdictional grant, while those of other appellate courts recognized the efforts of the Legislature.

Finally, in 1992, the Texas Supreme Court in the case of Palmer v. Coble Wall, 851 S.W.2d 178 (Tex. 1992), seemingly resolved the conflict between the various appellate courts regarding the broad jurisdictional grant to the state's statutory probate courts. Even after the Supreme Court recognized the intent of the Legislature to grant broad jurisdiction to the statutory probate courts, several appellate courts continued to fashion arbitrary jurisdictional limits on the statutory probate courts.

Although Probate Code 5A (decedent's estates) and 607 (guardianships) give the statutory probate courts jurisdiction over all matters appertaining to and incident to an estate, some practitioners challenged the meaning of the terms "appertaining to and incident to an estate." During the 75th Legislative Session, several statutory probate judges testified as to the need for legislative clarification of the jurisdictional grant given to the statutory probate courts because of the cost and delay inherent to jurisdictional challenges. In response to the continued jurisdictional challenges, the 75th Legislative Session amended 5A to clarify that all suits, actions, and applications filed against or on behalf of a decedent's estate were appertaining to and incident to the estate.

The Committee is of the opinion 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.

Following the most recent legislative amendments, the Texas Supreme Court issued their unanimous opinion in the case of In Re Graham in June of 1998, recognizing the Legislature's will to grant the statutory probate courts the broadest jurisdiction possible so that all matters affecting decedents' and wards' estates could be handled by these courts. In its opinion, the Court stated that "this interpretation comports with the legislative intent as evidenced by the Legislature's persistent expansion of statutory probate court jurisdiction over the years."

While studying their charge, the Committee determined that it was necessary to study the needs of the various counties to have statutory probate courts and how to ensure that those counties seeking to participate in the statutory probate court system provide the necessary tools to perform the numerous tasks imposed upon statutory probate courts by the Legislature. Texas' probate system is complicated as a result of the vast size of our state, and the difference in population distribution over the state's 254 counties has resulted in a probate court structure to accommodate each county's needs.

In counties with small populations, constitutional county courts have probate jurisdiction, with contested matters transferred to the district court or an assigned statutory probate court. In counties with somewhat larger populations, statutory county courts (county courts-at-law) may share probate jurisdiction with the constitutional county court. As would be expected, there are far more probate cases in the counties with the highest populations. Accordingly, counties with the largest metropolitan areas have statutory probate courts designed to specialize only in probate matters. Such specialization and the sheer number of cases filed afford the statutory probate courts a level of expertise in probate and guardianship matters unmatched by other courts in the state.

The statutory probate courts are governed by Section 25.0022 et seq. of the Government Code. These rules provide for various administrative procedures that are to be followed by the statutory probate courts. These statutory provisions governing the administration of the Statutory Probate Courts and/or each court's enabling statute require the following staff members for a statutory probate court: court investigator, court reporter, court administrator, court auditor, and court coordinator. These positions are necessary for the efficient and proper administration of the often complex probate matters heard in a statutory probate court. By administrative rule, the statutory probate court judges are required to have thirty hours annually of continuing judicial education, almost double the sixteen hours mandated by state law for all judges. Specialization and the additional judicial training give the statutory probate judges the specific expertise necessary to adjudicate probate and guardianship cases.

Although the salaries for a statutory probate court's additional staff may seem formidable, each statutory probate court county receives sufficient filing fees from cases to compensate such personnel. Conversely, non-statutory probate court counties generally do not have an auditor, an investigator, or a court coordinator. In these counties, a court administrator is often left to perform all of the above tasks as well as assist in probate matters because further funding is not available. Although the general staffing provision has a population threshold, the individual statutory probate courts have additional, specific staffing provisions in their local enabling statutes. Recently, there have been attempts to circumvent these staffing requirements by some counties by engrafting statutory probate court jurisdiction onto statutory county courts, which do not have the additional staffing requirements. Several statutory county court judges indicated that having appropriate staffing was important to their performance of probate court duties and wanted the Committee to devise a methodology to ensure appropriate staffing for probate courts. The size of the probate caseload and the willingness of a county's commissioners' court to fund required staffing are always pivotal in the decision to pursue legislation to create a statutory probate court.

The Committee is of the opinion that the population bracket should be removed from the general staffing provision and that any court having the jurisdiction of a statutory probate court should be staffed with the appropriate personnel required by law.

Furthermore, the Committee is of the opinion that counties should be allowed to create multi-county statutory probate courts. [The Legislature already allows the creation of multi-county statutory county courts. Gov. Code 25.2601.]

The Legislature has further recognized the statutory probate courts' specialization by instituting an ability to transfer certain cases to a statutory probate court. Since statutory probate courts often have cases which are both complicated and require lengthy supervision, it is judicially economical for a statutory probate court to transfer into its court a case related to an already pending matter. Accordingly, 5B and 608 allow the court to transfer "from a district, county or statutory court a cause of action appertaining to or incident to an estate [decedent or guardianship] pending in the statutory probate court." These transfer provisions allow the statutory probate courts to operate in a manner similar to a bankruptcy court in the federal court system. The various claims against an estate may, at the discretion of the statutory probate judge, be consolidated with all other claims against the estate when the judge determines that the circumstances existing in a particular case warrant monitoring by a single court. This allows orderly determination of claims according to the statutory scheme while protecting the human needs of the ward over whom the guardianship exists.

The statutory county court judges testified that the statutory probate court transfer provision was unnecessary for their purposes, as statutory county courts and district courts could avail themselves of the transfer provisions set forth in Chapter 74 of the Government Code (the court administration act for the state's statutory county courts and district courts). None of the statutory county court judges present at the Committee hearing had utilized the two Probate Code transfer provisions.

The Committee is of the opinion that while the Probate Code transfer authority is rarely used, even by statutory probate courts, it remains a necessary tool for the efficient administration of both decedent's and guardianship estates. Expanding this authority is problematic, as an expansion would have to include both statutory county judges and the non-lawyer probate judges often presiding in counties with smaller populations. The small probate caseloads in these counties do not warrant such an expansion.

At the Corpus Christi hearing, Judge James Klager, from Nueces County, advocated having the transfer provision apply to all courts and advocated legislative action to create a uniform court system for the state's trial courts. The result would be a uniform courts system in Texas with all courts having every level of jurisdiction -- in other words, the jurisdiction of a district court. The judge alleged that the transfer provision as written violates equal protection under the Constitution because the provision does not apply to all courts with probate jurisdiction. Such an argument must be reviewed under the applicable constitutional standard. Since there is obviously no suspect class (e.g., race, nationality, gender) involved in the application of the statute, the statute would not be subject to a strict scrutiny standard. Rather, the statute would require only a rational basis for the differing treatment to be constitutionally valid. The rational basis implied by the Legislature to justify the limited transfer authority is that statutory probate courts would benefit the most from the transfer power because of the caseload volume, concentrations of wealth, and general litigiousness found in the major metropolitan areas. Further, only the statutory probate courts have sufficient expertise and staffing to consistently handle the transferred cases. Other than the equal protection argument, no one offered a valid reason to extend transfer authority to non-statutory probate courts. In fact, although a transfer provision is written into the Nueces County courts at law's enabling statute, the Nueces County court at law judges present at the Corpus Christi meeting testified that they had never transferred a case into their court by any manner other than that provided for under by Government Code Chapter 74.

As the policy decision has already been made by the Legislature to grant transfer jurisdiction only to statutory probate courts, the Committee is of the opinion that similar transfer authority should not be extended to all courts with probate jurisdiction.

It was noted that the statutory probate courts do not have any transfer provision equivalent to the Government Code Chapter 74 transfer provision. The presiding statutory probate court judge indicated that it would be appropriate for a section to be added to the statutory probate court administrative provisions to allow a statutory probate court the ability to transfer a case to a court of proper jurisdiction when appropriate.

The Committee is of the opinion that the statutory probate courts should have the ability to transfer lawsuits, as an alternative to dismissal, upon the loss of subject-matter jurisdiction due to settlement by, or dismissal of, the estate as a party to the lawsuit.

Statistics kept by the Office of Court Administration reflect that the 20 most populated counties have probate, guardianship and mental health caseloads sufficient to support at least one statutory probate court in each county. Nine of the fifteen most populous counties currently have statutory probate courts. The four largest counties, Harris, Dallas, Bexar, and Tarrant, have multiple statutory probate courts. The fifth and sixth largest counties, Travis and E1 Paso, have single statutory probate courts. Travis County is examining the need for an additional statutory probate court. The other two statutory probate court counties, Denton and Galveston, offer an interesting contrast.

Galveston County was one of the original statutory probate court counties, and Denton County has the state's newest statutory probate courts. Both Galveston County and Denton County are contiguous to the two largest metropolitan counties in the state and serve an ever-increasing population and probate caseload. In each of the statutory probate court counties, there was a willingness of the respective counties' commissioners' courts to participate in the statutory probate court system. In each of these counties, the probate, guardianship, and mental health jurisdiction was placed exclusively in the statutory probate court. By limiting the number of courts having probate jurisdiction, the state and the counties effectively limited the probate court staffing requirements' effects on a county's budget by limiting the required expanded staff to a single probate court.

Obviously, requiring a full statutory probate court staff for each of several statutory county courts with probate jurisdiction is not economically feasible, unless the county is large enough to require multiple statutory probate courts. Accordingly, the most practical funding choice for a county's commissioners' court is to staff a single probate court with specialized personnel, while allowing the county's other statutory county courts to retain their standard personnel necessary for their non-probate civil or criminal jurisdiction.

The Committee is of the opinion that new statutory probate courts should be created only upon a commissioners' court's request and an understanding that the new court should be governed by the Government Code's statutory probate court staffing and filing requirements.

Several statutory probate courts have some additional jurisdiction beyond their statutory probate court jurisdiction. This additional jurisdiction is limited and is no greater than the general civil jurisdiction of a statutory county court, nor less than merely having eminent domain jurisdiction. This added jurisdiction is a result of the transitional needs of a county going from the traditional probate court system to the more formalized statutory probate court system.

The Committee recognizes this transitional need and is of the opinion that, to the extent necessary, additional jurisdiction in any newly created statutory probate court be limited in scope and transitional in nature.

The Committee recognizes that the current probate system is preferable to the system which existed in the past. The development of the statutory probate court system has had a salutary effect upon probate law in Texas.

In recent years some county courts-at-law have attempted to alter the statutory probate court system by giving themselves statutory probate court jurisdiction without actually converting their courts into statutory probate courts. Such altered jurisdiction, usually obtained by conveniently renaming the court or by amending local enabling provisions, denigrates the decades of effort spent by the Legislature in developing our statutory probate court system.

The county courts-at-law that have statutory probate court jurisdiction have the subject matter jurisdiction and responsibility of a statutory probate court, but lack the necessary specialized staff and filing requirements and without having to comply with statutory probate court administrative procedures. Such circumvention is a disservice to these counties' constituents, and flies in the face of the reasoning behind the creation of statutory probate courts.

In contrast to this approach, counties like Denton and E1 Paso have come to the Legislature to have statutory probate courts created with appropriate staffing and filing requirements. This is the way the current statutory probate court system should be developed.

The Committee is of the opinion that any statutory provision granting statutory probate court jurisdiction and authority to courts other than statutory probate courts should be repealed.

In a judicial system that relies on state and local cooperation, it is incumbent that the needs of a county's citizens in having an efficient probate system are communicated to the Legislature by the local commissioners' court. Statutory probate courts should not be forced upon counties unwilling to fund and staff such courts adequately. At the same time, counties wanting to have the benefit of the statutory probate court system should recognize the requisites of such a system. The Legislature is always ready to aid any county wishing to participate in the statutory probate court system by enacting appropriate enabling legislation.

The Committee is of the opinion that new statutory probate courts should be created in Texas' fifteen (15) most populated counties only upon a commissioners' court's request and with an understanding that the new court shall be governed by the Government Code's statutory probate court filing and staffing requirements.

RECOMMENDATIONS:

I. The Committee recommends the repeal of any statutory provision granting statutory probate court jurisdiction and authority to courts other than statutory probate courts.

II. The Committee recommends that the population bracket in Government Code 25.0024 be removed from the general staffing provision and that any court having the jurisdiction of a statutory probate court should be staffed with the appropriate personnel required by law.

III. The Committee recommends that counties should be allowed to create multi-county statutory probate courts.

IV. The Committee recommends the creation of new statutory probate courts in Texas' twenty (20) most populated counties only upon a commissioners' court's request and an understanding that the new court should be governed by the Government Code's statutory probate court filing and staffing requirements.

V. The Committee recommends that additional jurisdiction in any newly created statutory probate court be limited in scope and transitional in nature.

VI. The Committee recommends that Government Code 25.0022 be amended to give the statutory probate courts the ability to transfer lawsuits, as an alternative to dismissal, upon the loss of subject-matter jurisdiction due to settlement by, or dismissal of, the estate as a party to the lawsuit.

VII. The Committee recommends that a mirror provision of 5A be added to 607 to include references to "matters appertaining to and incident to an estate" in the guardianship section of the probate code.

 

The Texas Probate Web SiteRecent Cases -- Texas Probate Web SiteLegal Articles -- Texas Probate Web SiteForms -- Texas Probate Web SiteLegislation -- Texas Probate Web Site
Barnes & Karisch, P. C.Tax Page -- Texas Probate Web SiteLinks to Other SitesCourt-Created Trusts -- Texas Probate Web SiteDisability Planning -- Texas Probate Web Site

Questions? Comments? Problems? Email webmaster@texasprobate.net
Copyright 1998 by Glenn M. Karisch     Last Revised October 22, 1998