In the 1970s and 1980s, few areas of Texas law changed more than probate jurisdiction. Those two decades saw two constitutional amendments and statutory amendments in eight of the ten legislative sessions.⁽¹⁾

Now, after a period of relative calm, another spurt of activity may be starting. There have been several key reported cases affecting probate jurisdiction in the last few years. One of these cases, Milton v. Herman,⁽²⁾ is now pending in the Texas Supreme Court. Things are happening on the legislative front as well. In the 1997 regular session of the Texas Legislature, 12 bills were introduced that would have changed probate jurisdiction, and four of those bills passed.⁽³⁾ One of the bills that passed, HB 3086, provides for the creation of a special legislative committee to study the probate court system and to make recommendations to the 1999 legislature. Also, House Speaker Pete Laney directed the House Judicial Affairs Committee to consider developing a system of multi-county statutory probate courts statewide.

What's going on here? What's behind these cases and these legislative efforts? What is likely to happen to probate jurisdiction in the next two years? Behind all of these questions stands Probate Code Section 5B (and its little brother, Section 608) -- the statute that gives statutory probate courts the power to transfer cases pending in other jurisdictions to itself in certain circumstances. This paper will review the current scheme, examine how we got here and attempt to predict where we are going.

2. THE CURRENT SCHEME

There are four types of courts exercising probate jurisdiction in Texas: (a) so-called "constitutional county courts," (b) statutory county courts, (c) statutory probate courts and (d) district courts.⁽⁴⁾

a. Constitutional County Courts. Each county has an elected county judge who is the presiding officer of the commissioners' court. This judge also presides over the county court (referred to as the "constitutional county court" to distinguish it from county courts created by special statute as described below) which traditionally had all original probate jurisdiction. Many smaller counties have no statutory county court, and the constitutional county court still has original probate jurisdiction in those counties. The judge of the constitutional county court often is not a lawyer. Since many such judges lack legal training, the judge or either party can cause a contested probate proceeding to be transferred to a district court or statutory probate court. Tex. Prob. Code Ann. §5(b).

b. Statutory County Courts. The legislature has created additional county courts in many counties by special statute. As a result of constitutional amendments in 1973 and 1985, the legislature may now specify the jurisdiction of each county or district court. Consequently, not all statutory county courts have the same jurisdiction. However, except in counties with statutory probate courts (see below), the legislature has given at least one statutory county court original probate jurisdiction in virtually all counties with statutory county courts. Counties are required to pay for the cost of having a statutory county court, so as a practical matter no county has such a court unless that county's commissioner's court indicates to the legislature its willingness to pay for its costs.

c. Statutory Probate Courts. Another type of statutorily created court is called a "statutory probate court." The rationale behind having statutory probate courts is that, if there is a sufficient probate caseload in a county to warrant it, it is better to have such matters heard in a court which specializes in probate matters. Furthermore, in recognition of the special expertise of the judges of statutory probate courts, it makes sense to impose special requirements on these courts and give these courts broader powers than constitutional county courts or statutory county courts. Like non-specialty statutory county courts, each statutory probate court must be created by an act of the legislature, and the county's commissioners' court must indicate the county's willingness to pay its costs. In those counties where statutory probate courts exist, no other statutorily created court has probate jurisdiction. Because the law imposes additional staffing requirements on statutory probate courts,⁽⁵⁾ it costs a county more to have a statutory probate court than it does to have other types of statutory county courts. Significant additional powers are given to statutory probate courts, such as: (1) a broader definition of "appertaining or incident to" an estate, which is a key element in probate jurisdiction; (2) concurrent jurisdiction with the district courts on all matters appertaining to or incident to an estate, as well as on matters in which the personal representative (acting in such capacity) is a party to the litigation; and (3) the power to transfer cases pending in other courts which are appertaining or incident to an estate to the probate court without the consent of the transferring court -- the 5B power. Tex. Prob. Code Ann. §§5A and 5B.

d. District Courts. District courts exercise probate jurisdiction in matters transferred from constitutional county courts. Also, the district courts hear many cases involving probate or guardianship estates which fall within the concurrent jurisdiction of statutory probate courts. It is in this area -- cases in which the district courts and the statutory probate courts have concurrent jurisdiction -- that most of the current cases and statutory developments are based.

3. HOW DID WE GET HERE?

a. Pre-1997 Statutory Changes Affecting Statutory Probate Court Jurisdiction. The Texas legislature recognized the value of having specialty probate courts as early as 1943 when the first probate court in Harris County was established. With the jurisdictional changes of the 1970s, it became more and more advantageous for larger counties to establish specialty probate courts, and it became more and more apparent that there should be special jurisdictional and administrative rules for these courts.

In 1979, Section 5A was added to the Probate Code. This section defined "appertaining to estates" and "incident to an estate" and gave statutory probate courts concurrent jurisdiction with the district courts in certain trust matters and gave these probate courts the power to hear all suits, actions, and applications filed against or on behalf of any estate or guardianship. It further provided that, in situations where the jurisdiction of the statutory probate court is concurrent with that of the district court, any cause of action appertaining to estates or incident to an estate shall be brought in the statutory probate court rather than the district court.

In 1983, Section 5B was added to the Probate Code. It has never been amended. It provides:

§5B. Transfer of Proceeding. A judge of a statutory probate court on the motion of a party to the action or on the motion of a person interested in an estate, may transfer to his court from a district, county or statutory court a cause of action appertaining to or incident to an estate pending in the statutory probate court and may consolidate the transferred cause of action with the other proceedings in the statutory probate court relating to that estate.

The rationale behind Section 5B was that the clogged dockets in other courts should not bog down resolution of a case which appertained or was incident to an estate, since the entire estate proceeding may be held up pending resolution of the case. Thus, statutory probate courts were given the discretionary authority to unilaterally transfer such cases so that, presumably, an efficient determination of the case could be made.

Shortly after Section 5B was enacted in 1983, the Texas Supreme Court decided the case of Seay v. Hall, 677 S. W. 2d 19 (Tex. 1984). In Seay, the Supreme Court decided that a statutory probate court did not have the jurisdiction to hear wrongful death or survival actions. (Seay was not a Section 5B transfer case -- the case at issue was originally filed in the statutory probate court.) The Supreme Court held that the actions were not appertaining or incident to an estate because the "controlling issue" was not the settlement, partition, or distribution of an estate.

In response to Seay, the Texas legislature amended Section 5A in 1985 to provide that, in actions "by or against a personal representative, the statutory probate courts have concurrent jurisdiction with the district courts." This was the legislature's first of two attempts to overrule the Seay v. Hallruling. The next attempt came in 1989 in response to Qwest Microwave, Inc. v. Bedard, 756 S. W. 2d 19 (Tex. App. -- Dallas 1988, no writ), when Sections 5 and 5A were amended to make it clear that a statutory probate court has concurrent jurisdiction with the district court in all matters involving a personal representative in his or her capacity as personal representative. Section 5A also was reorganized and expanded to include subsections (d) and (e) as follows:

(d) A statutory probate court may exercise the pendant and ancillary jurisdiction necessary to promote judicial efficiency and economy.

(e) Subsections (c) [setting forth a probate court's jurisdiction over personal representatives] and (d) apply whether or not the matter is appertaining to or incident to an estate.

This makes it pretty clear that statutory probate courts have the proper jurisdiction to hear the type of case which was at issue in Seay v. Hall -- wrongful death and survival actions -- so long as the personal representative of an estate pending in that court is a party to the actions in his or her capacity as personal representative. However, no similar change was made to Section 5B.⁽⁶⁾ After the 1989 amendments, Section 5B still permitted transfers only in cases which were appertaining or incident to an estate. Thus, unless one considers the 1985 and 1989 changes to Section 5A to be changes to the definition of "appertaining to estates" or "incident to an estate," the Seay controlling issue test still remained the law for Section 5B purposes. The court in D.S. Entertainment, Inc. dba Baby Dolls Topless Saloon, Inc. v. Windle, 927 S. W. 2d 283 (Tex. App. -- Fort Worth 1996, motion to file mandamus dismissed), flatly refused to do so, stating that "the relevant probate code sections intentionally exclude wrongful death and survival claims -- suits by or against a person in the person's capacity as a personal representative or a guardian -- among the classes of suits that appertain to or are incident to an estate." 927 S. W. 2d at 287. Thus, if the Baby Dolls case is correct, while a statutory probate court may have the jurisdiction to hear a wrongful death case originally filed in that court, it did not have the authority to transfer a wrongful death case originally filed in another court (unless the controlling issue test could be satisfied).

In 1997, there was an attempt to amend Section 5B to make it parallel with Section 5A (i.e.,to permit transfers not only of matters appertaining or incident to an estate, but also of matters by or against a personal representative acting in his or her capacity as such). The 1997 attempt to amend Section 5B to expand the transfer power failed, as did three attempts in 1997 to restrict the Section 5B transfer power -- for example, to permit the transfer only if the transferring court consents.

b. 1997 Amendment to Section 5A. While Section 5B and its guardianship offspring, Section 608, were the main legislative battleground in 1997, a last-minute amendment to Section 5A may have effectively broadened the transfer power of Section 5B. SB 506 (Acts 1997, 75^th Leg., Ch. 1302) added the following italicized language to the second sentence of subsection (c) of Section 5A (the definition of appertaining to estates and incident to an estate applicable to statutory probate courts):

All statutory probate courts may, in the exercise of their jurisdiction, notwithstanding any other provisions of this Code, hear all suits, actions, and applications filed against or on behalf of any heirship proceeding or decedent's estate, including estates administered by an independent executor; all such suits, actions, and applications are appertaining to and incident to an estate for the purposes of this section.

This amendment was added to SB 506 by Rep. Senfronia Thompson, D-Houston, on the floor of the Texas House in the closing days of the session, and there is little or no legislative history. It is clear that the proponents of this change intended it to permit transfers of cases by or against the personal representative of a decedent's estate under Section 5B even if they failed to meet the Seay v. Hall"controlling issue" test. However, it remains to be seen how this amendment will be construed by Texas appellate courts. (It is a pretty good bet that it will be construed by Texas statutory probate courts to permit 5B transfers of any case in which the personal representative is a party.)

One interesting quirk is that the 1997 amendment to Section 5A affects only decedents' estates -- it does not make a corresponding change to Section 607 of the Probate Code regarding guardianships. It is becoming increasingly clear that many provisions which were the same for decedent's estates and for guardianship estates in 1993 (when the guardianship provisions were separated from the provisions affecting decedents' estates and recodified as Chapter XIII of the Probate Code) and which probably should continue to be the same will slowly but surely become substantively different as the legislature amends one statute but fails to make the same change in the corresponding statute.

c. Cases Involving the Transfer Power of Statutory Probate Courts. There are five reported cases regarding the exercise of a statutory probate court's transfer power under Section 5B or Section 608 of the Probate Code. The first two reported cases -- Henry v. Lagrone, 842 S. W. 2d 324 (Tex. App. -- Amarillo 1993, no writ) and Lanier v. Stem, 931 S. W. 2d 1 (Tex. App.--Waco 1996, no writ) -- upheld the probate court's authority to make the transfer. However, in the last three cases -- D.S. Entertainment, Inc. dba Baby Dolls Topless Saloon, Inc. v. Windle, 927 S. W. 2d 283 (Tex. App. -- Fort Worth 1996, motion to file mandamus dismissed); In re Ford Motor Company, ___ S. W. 2d ____, 1997 WL 634298 (Tex. App. -- Houston [14^th Dist.] 1997, application for mandamus filed); and Milton v. Herman, 947 S. W. 2d 737 (Tex. App. -- Austin 1997, motion to file mandamus granted) -- the statutory probate court was mandamused and the transfer was not permitted. All of these cases were decided based on the law as it existed before the 1997 amendment to Section 5A -- no reported case has tackled the effect of the 1997 change.

i. Henry v. Lagrone, 842 S. W. 2d 324 (Tex. App. -- Amarillo 1993, no writ). The first reported case on Section 5B transfers was the Lagrone case. In it, Tarrant County Probate Court No. 1 transferred a declaratory judgment action regarding the validity of various distributions from a trust of which an incapacitated person was a beneficiary from the district court to the probate court.⁽⁷⁾ The trustee filed the declaratory judgment action after a guardianship proceeding for the incapacitated person had been commenced. The Amarillo Court of Appeals held that the 5B transfer power arises when these four conditions exist: (1) The court exercising the power to transfer a cause of action under section 5B is a statutory probate court; (2) There is an estate pending in the statutory probate court; (3) There is a cause of action pending in a district, county or statutory court; and (4) that cause of action is appertaining to or incident to the estate pending in the statutory probate court. 842 S. W. 2d at 326. The court found that all four conditions were met in the Lagrone case and upheld the transfer. In so holding, the Lagrone court specifically rejected the trustee's venue argument, stating flatly that "Section 5B of the probate code is not a venue statute." 842 S. W. 2d at 327.

ii. Lanier v. Stem, 931 S. W. 2d 1 (Tex. App. -- Waco 1996, no writ). The next reported case was Lanier. In Lanier, the guardian of an incapacitated ward filed a breach of fiduciary duty case in the Travis County Probate Court No. 1, the court where the guardianship was pending. The defendant/trustee filed a motion to transfer the case based on venue. The probate court granted the motion to transfer, sending the case to the district court in the county where venue was proper. Then the probate court issued a transfer order under Section 608 of the Probate Code, ordering the case to be transferred to itself. The Waco Court of Appeals found Section 608 to be clear and unambiguous and upheld the transfer, specifically holding that the probate court had the authority to make the Section 608 transfer "notwithstanding the venue statutes." 931 S. W. 2d at 3.

iii. DB Entertainment, Inc. d/b/a Baby Dolls Topless Saloon, Inc. and Baby Dolls Topless Saloon, Inc. v. Windle, 927 S. W. 2d 283 (Tex. App. -- Fort Worth 1996, no writ).Close on the heels of the Lanier case was the first reported case going against the transfer power of statutory probate courts -- the Baby Dolls case. In it, the widow of a person killed in a car accident after an evening of drinking at the Baby Dolls topless bar in Tarrant County sued for wrongful death in Denton County district court, both individually and as next friend of the decedent's two minor children. A motion to transfer to Tarrant County based on venue was granted when the plaintiffs' attorney conceded that venue was proper in Tarrant County. Then the widow initiated two guardianship proceedings in Denton County for the decedent's minor children, was appointed guardian of the estate of the two minor children, and then filed a motion to transfer the wrongful death case to the Denton County Probate Court based on Section 608 of the Probate Code.

On the surface, Judge Windle of the Denton County Probate Court appears to have gone into the teeth of Seay v. Hall, which held that wrongful death and survival actions were not appertaining to or incident to a decedent's estate. However, the issue is not so clear-cut as it first appears. Just because a wrongful death action is not appertaining to or incident to a decedent's estate doesn't necessarily mean that it is not appertaining to or incident to a guardianship estate. Where the guardian is a party to a wrongful death case, virtually the entire guardianship estate may be wrapped up in the wrongful death claim. It may be difficult or impossible for the guardian to administer the guardianship estate without resolving the wrongful death action.

Nonetheless, it is not that surprising that the Fort Worth Court of Appeals did not permit the transfer of the Baby Dolls case in light of Seay v. Hall. What is surprising, however, is that the Baby Dollscase contains dicta that recent tort reform venue legislation may prohibit 5B and 608 transfers from one county to another. 927 S. W. 2d at 288. Proponents of broad 5B transfer powers have taken the position that Section 5B and 608 are transfer statutes, not venue statutes, citing the Lagrone and Lanier cases. Opponents no doubt will cite Baby Dolls for the proposition that such transfers are permitted only if venue is proper in the probate court.

iv. In re Ford Motor Company, ___ S. W. 2d ____, 1997 WL 634298 (Tex. App. -- Houston [14^th Dist.] 1997, application for mandamus filed). In Ford Motor, Judge Blackstock of the County Court at Law No. 3 and Probate Court of Brazoria County transferred a wrongful death and survival action pending in district court in Polk County to itself, where the decedent's estate was pending. The 14^th Court of Appeals held that the probate court had no authority to make the transfer because the wrongful death action was not appertaining or incident to the decedent's estate, citing Seay v. Hall and Baby Dolls. The court of appeals did not focus on the venue issue raised in dicta by the Baby Dolls court.

v. Milton v. Herman, 947 S. W. 2d 737 (Tex. App. -- Austin 1997, motion for mandamus granted). The last, and potentially the most important, of the reported 5B transfer cases is the Milton case. In Milton, the wife of an incapacitated person was named guardian of her husband. The Travis County Probate Court No. 1, in which the guardianship was pending, appointed an attorney ad litem after learning that the wife may have been attempting to dispose of some of the guardianship assets without authority. A show-cause hearing was held on the removal of the wife as guardian on December 11, 1996. The court of appeals said that, at that hearing, the probate court "re-instructed Gitta [the wife/guardian] regarding her guardianship duties." 947 S. W. 2d at 738. In fact, the show-cause hearing was continued. On January 27, 1997, before the continued show-cause hearing was completed, the wife filed a divorce action in district court in Travis County, seeking a disproportionate division of the community estate. The following day, the wife resigned as guardian of her husband.

The probate court responded by appointing a successor guardian and granting the successor guardian's motion to transfer the divorce proceeding to the probate court pursuant to Section 608. The Austin Court of Appeals granted the wife's writ of mandamus, holding that the probate court did not have the authority to transfer the divorce proceeding. The court of appeals held that the divorce proceeding was not appertaining or incident to the guardianship estate and that the probate court had no authority to transfer the case.

The Texas Supreme Court granted the application for mandamus filed in the Milton case and heard oral arguments on January 7, 1998. How the Supreme Court decides Milton could go a long way toward determining the transfer power of statutory probate courts under current law and the direction of future legislative efforts regarding such transfer power. The justices' questions at oral argument gave no clear indication of how the Supreme Court may rule on Milton. There was no lack of interest in the case on the part of the justices, as virtually every justice asked questions. It appeared that the justices were focusing most of their attention on the question of whether Section 607 gives a statutory probate court the jurisdiction to hear a divorce case, rather than on the question of the transfer power itself Only one of the justices appeared to be focused on the "controlling issue" test adopted under Seay v. Hall, asking counsel for the successor guardian if there would be any limits on a statutory probate court's transfer power if the Supreme Court upheld Judge Herman's transfer of a divorce case. Counsel for the successor guardian argued that, since an incapacitated spouse obviously will not be awarded custody of minor children in a divorce, and since Texas has no-fault divorce, the controlling issue in Milton was the property division and child support issues -- issues which were clearly appertaining or incident to the guardianship estate. Counsel for the wife argued that since neither the Probate Code nor the Government Code gave the Travis County Probate Court No. 1 express jurisdiction over family court matters, the jurisdictional basis for hearing the case is wholly lacking. She also argued that the probate court is inherently in a conflict of interest, since on the one hand it must safeguard the ward's rights while on the other hand it must make a fair and reasonable division of the community estate. Counsel for the wife also argued that the case is now moot since most of the property issues have already been resolved in the district court.

d. Legislative Developments Regarding the Definition of Statutory Probate Courts. Chapter 25 of the Government Code sets forth the general provisions governing all types of statutorily created county courts, including statutory probate courts. For example, Section 25.0021 of the Government Code provides: "A statutory probate court as that term is defined in Section 3(ii), Texas Probate Code, has the general jurisdiction of a probate court as provided by the Texas Probate Code. Section 25.0003 contains the general jurisdictional grant for statutory county courts.

In addition to general provisions, Chapter 25 also includes special provisions for each statutorily created county court (including statutory probate courts). The legislature has been very pragmatic (if that is the proper word) in its granting of authority to the various statutorily created county courts in Texas. Although many statutorily created county courts just have the general jurisdiction provided by statute, but others have substantially different jurisdiction and authority. For example, the statutory county courts of many counties are given the jurisdiction to hear family law cases, and the statutory probate courts in two counties (Travis and Harris) have their own special transfer authority.

The flexibility employed by the legislature in granting jurisdiction to the various statutory courts in Chapter 25 of the Government Code has led to some interesting, not to mention confusing, results. In 1997, the special provisions affecting the statutory county courts in two counties -- Brazoria and Nueces -- attracted the attention of the legislature.

i. Brazoria County. Prior to September 1, 1997, the definition of a statutory probate court in Section 3(ii) of the Probate Code read as follows:

"Statutory probate court" refers to any statutory court 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, and such courts whose statutorily designated name contains the word "probate." County courts at law exercising probate jurisdiction are not statutory probate courts under this Code unless their statutorily designated name includes the word "probate."

In 1985, Brazoria County took advantage of the wording of this definition in order to give its three statutory county courts the jurisdiction of a statutory probate court without having to meet the general requirements affecting statutory probate courts in Chapter 25 of the Government Code by having the legislature insert "and Probate" in each court's name. Thus, rather than being the "Brazoria County Court at Law No. 1," the specialty statute for Brazoria County names the court the "Brazoria County Court at Law and Probate Court No. 1." Tex. Gov. Code §25.0221 (seeAppendix A). Viola, under the prior statute, all three statutory courts in Brazoria County were given the jurisdiction of statutory probate courts, including the cherished 5B transfer power.

ii. Nueces County. In 1995, Nueces County convinced the legislature to grant very broad jurisdiction to all of its statutory county courts -- including de facto all of the jurisdiction of a statutory probate court over decedents' estates⁽⁸⁾ -- not by putting the word "probate" in the name of each court, but rather by specifically listing every grant of jurisdiction the draftsman could think of. Tex. Gov. Code §25.1802 (see Appendix A). Thus, while the statutory county courts in Nueces County do not meet the old statutory definition of statutory probate courts quoted above (because they do not have the word "probate" in their names), they have all the jurisdiction of a statutory probate court, at least with respect to decedents' estates, as a result of the specific grant of jurisdiction in Tex. Gov. Code §25.1802.

iii. 1997 Amendment to Definition of "Statutory Probate Court." HB 1152 (Acts 1997, 75^th Leg., Ch. 52), authored by Rep. Will Hartnett, R-Dallas, amended the definition of "statutory probate court" in Sections 3(ii) and 601(29) to read as follows:

"Statutory probate court" means a statutory court designated as a statutory probate court under Chapter 25, Government Code. A county court at law exercising probate jurisdiction is not a statutory probate court under this Code unless the court is designated a statutory probate court under Chapter 25, Government Code.

HB 1152 passed the legislature in April and was signed into law on May 7, 1997, to be effective September 1, 1997. Thus, gone was the basis for the county courts at law of Brazoria County to claim statutory probate court jurisdiction -- simply having "probate" in the court name was no longer enough.

iv. Two-year Grandfathering of Brazoria and Nueces Statutory County Courts. Some of the judges in Brazoria County and Nueces County were upset when they learned of the passage of HB 1152. One judge in particular, Judge James Klager of Nueces County, jumped into action. Shortly after the governor signed HB 1152, Senator Carlos Truan of Nueces County introduced SB 1952, which would have made HB 1152 inapplicable to any court exercising the jurisdiction of a statutory probate court on August 31, 1997 -- the day before HB 1152 was to become effective. Although SB 1952 was introduced well after the deadline for filing new bills in the 1997, it passed the Senate quickly, on May 16, 1997. However, SB 1952 did not pass the Senate without a floor fight (in which Senator Jeff Wentworth, R-San Antonio, was a key opponent) and resulting compromise. As it passed the Senate, SB 1952 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 two-year study of probate courts by a special joint committee of the legislature.

It is ironic that the impetus behind SB 1952 originated in Nueces County since HB 1152 apparently would not effect the Nueces County courts at law -- HB 1152 addresses the problem of county courts at law masquerading as statutory probate courts (if one perceives it as a problem) by eliminating courts whose sole basis for statutory probate court status is inclusion of the word "probate" in their name; it does nothing to address the specific grants of jurisdiction contained in Tex. Govt. Code §25.1802.

SB 1952 was referred to the House Judicial Affairs Committee, where it died. This is not that surprising since Rep. Hartnett, the sponsor of HB 1152, is vice-chair of the Judicial Affairs Committee. When it became clear that SB 1952 was going nowhere in the House, its proponents found another vehicle to get the substance of SB 1952 passed into law. A floor amendment to HB 3086 -- another of Rep. Hartnett's bills that was still pending in the Senate -- added the two-year grandfather provision and the mandate for a special legislative committee to HB 3086. As amended, HB 3086 (Acts 1997, 75^th Leg., Ch. 1435) passed both houses and was signed into law.

HB 3086 adds the following as new paragraph (g) to Section 5 of the Probate Code:

(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.

This clearly grandfathers the county courts at law in Brazoria and Nueces Counties until August 31, 1999. What happens after that date depends largely on what the legislature does in 1999. It seems clear that, unless the legislature acts, the county courts at law of Brazoria County will lose their statutory probate court status and jurisdiction on August 31, 1999. The Nueces County courts may keep their statutory probate court jurisdiction after August 31, 1999, even if the legislature doesn't act. However, that result is uncertain, since Section 5(g) can be read as terminating the statutory probate court jurisdiction of the Nueces County courts at law when the subsection expires on August 31, 1999. This is yet another irony of the Nueces County-based push for passage of Section 5(g) --Section 5(g) saved the statutory probate court jurisdiction of the Brazoria County courts for two years at the risk of losing the Nueces County courts' statutory probate court jurisdiction after two years.

e. The Special Legislative Study Committee. The other relevant part of HB 3086 is the mandate for the special legislative study committee:

SECTION 4 [of HB 3086]. (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."

In response to this mandate, Lieutenant Governor Bullock and Speaker Laney have appointed the following persons to the special committee:

Senator Jeff Wentworth, R-San Antonio (Co-Chair).

Rep. Senfronia Thompson, D-Houston (Co-Chair).

Senator Rodney Ellis, D-Houston.

Senator David Cain, D-Dallas.

Rep. Will Hartnett, R-Dallas.

Rep. Jim Solis, D-Harlingen.

As of this writing (February 10, 1998), the committee has yet to meet.

f. The House Judicial Affairs Committee Mandate. House Speaker Laney gives most, if not all, of the standing House committees a mandate to study various issues and consider the need for legislation in those areas during the time between regular sessions. Among the topics given to the House Judicial Affairs Committee was the direction to study the creation of multi-county statutory probate courts for less populous counties statewide.

On the surface, this mandate appears to foretell the potential for a radical change in probate practice for the counties with insufficient population to support a statutory probate court. Is the state likely to require such counties to join together in multi-county statutory probate courts, much the same as the less populous counties now share district courts? This seems unlikely. What is more likely is an optional system whereby counties could create multi-county statutory probate courts should they decide to do so. Counties must pay the bulk of the cost of statutory county courts. That is why many counties have refrained from creating such courts, continuing instead with just a constitutional county court. In a recent session the legislature adopted a means for counties to form multi-county statutory courts (not specialty probate courts), and to the author's knowledge no counties have chosen to do so. It is hard to imagine the state providing the funding necessary to pay for these new courts on a statewide basis, and it is hard to imagine the various commissioners' courts of less populous counties perceiving the need for a multi-county statutory probate court to be so great as to justify the additional county expense.

Therefore, while there may be some interesting legislation born from this mandate, it seems unlikely to radically change the landscape of probate practice in smaller counties, unless there is a legislative force out there driving this effort of which the author is unaware.

4. WHERE ARE WE GOING?

The stage seems set for significant changes in probate jurisdiction, especially in the 5B and 608 transfer area. Cases on 5B and 608 transfers are becoming more frequent, and the Texas Supreme Court is about to decide its first case on the subject. A special committee is studying the probate court system and is under a mandate to make suggestions for changes in 1999. In addition, Speaker Laney's mandate to the House Judicial Affairs committee for its work between sessions includes consideration of a new, state-wide multi-county statutory probate court system.

With all these indicators of change, perhaps the best bet is that nothing significant will happen. The Texas legislative process is inherently unpredictable, and it is much easier to keep a bill from passing than it is to pass a bill.⁽⁹⁾

Judge Klager of Nueces County told the author that the judges of statutory county courts around the state would push for giving all such courts the 5B and 608 transfer power, not just statutory probate courts. He said there is a constitutional problem in permitting the residents of counties with statutory probate courts to be entitled to benefit from the transfer power while denying that benefit to the residents of counties without statutory probate courts. To the author's knowledge, this constitutional argument has never been raised in a transfer case.

While, as Judge Klager notes, there are far more county court judges than statutory probate court judges, there also are far more legislators from counties with statutory probate courts than from counties without such courts (since the most populous counties are the ones with statutory probate courts). Thus, it is difficult to determine where the political power lies on this issue.

The other factor to be considered is the political clout which may be wielded by the proponents of the three 1997 bills that would have limited the 5B and 608 transfer power. It is unclear where this camp gets its support. The authors of the three bills were representatives of Brazoria and Nueces Counties⁽¹⁰⁾ -- perhaps not coincidentally, these are the two counties affected by the fight over the definition of statutory probate court.

If anything does happen on the legislative front, it seems likely that statutory probate courts as we know them will continue to exist with roughly the same jurisdiction they now possess. Five of the six members of the special committee come from counties with statutory probate courts, and several of the committee members have sponsored or supported legislation backed by the statutory probate judges in the past. Therefore, while it will be interesting to watch developments in probate jurisdiction in the next few years, there's probably no need to throw away those old outlines on probate jurisdiction just yet.

Appendix A -- Brazoria and Nueces Statutory County Courts

The provisions governing statutory county courts (statutory probate courts and county courts at law) are found in Chapter 25 of the Government Code. In addition to general provisions governing statutory probate courts and county courts at law, each county's courts have specific provisions governing the statutory county courts in that county. Here are the relevant specific provisions for the statutory county courts in Brazoria and Nueces Counties (emphasis supplied by author):

Tex. Gov. Code § 25.0221. Brazoria County

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.

Tex. Gov. Code § 25.1802. Nueces County Court at Law Provisions

(a) In addition to the jurisdiction provided by Section 25.0003 and other law, and except as limited by Subsection (d), a county court at law in Nueces County has:

(1) the jurisdiction provided by the constitution and by general law for district courts;

(2) 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;

(3) concurrent jurisdiction with the district court in disputes ancillary to probate, eminent domain, condemnation, or landlord and tenant matters relating to the adjudication and determination of land titles and trusts, whether testamentary, inter vivos, constructive, resulting, or any other class or type of trust, regardless of the amount in controversy or the remedy sought;

(4) concurrent jurisdiction with the district court over civil forfeitures, including surety bond forfeitures without minimum or maximum limitation as to the amount in controversy or remedy sought;

(5) jurisdiction in mental health matters, original or appellate, provided by law for constitutional county courts, statutory county courts, statutory probate courts, or district courts with mental health jurisdiction, including proceedings under: (A) Subtitle C, Title 7, Health and Safety Code; (B) Chapter 462, Health and Safety Code; and (C) Subtitle D, Title 7, Health and Safety Code;

(6) jurisdiction over the collection and management of estates of minors, mentally disabled persons, and deceased persons;

(7) concurrent jurisdiction with the district court in all actions by or against a personal representative, in all actions involving an inter vivos trust, in all actions involving a charitable trust, and in all actions involving a testamentary trust, whether the matter is appertaining to or incident to an estate;

(8) the pendent and ancillary jurisdiction necessary to promote judicial efficiency and economy; and

(9) jurisdiction in all cases assigned, transferred, or heard under Sections 74.054, 74.059, and 74.094, Government Code.

(b) A county court at law has original concurrent jurisdiction with the justice courts in all civil and criminal matters prescribed by law for justice courts. Appeals from justice courts and other courts of inferior jurisdiction in Nueces County must be made directly to a county court at law.

(c) A county court at law has four terms beginning on the first Mondays in January, April, July, and October of each year.

(d) A county court at law does not have jurisdiction of: (1) felony cases, except as otherwise provided by law; (2) misdemeanors involving official misconduct unless assigned under Sections 74.054 and 74.059, Government Code; (3) contested elections; or (4) family law cases.

Endnotes

1. ¹For a detailed analysis of Texas probate jurisdiction, see Frank N. Ikard, Jr., "Jurisdiction in Probate Practice," which was most recently presented by Judge Don R. Windle at the State Bar of Texas's 21^st Annual Advanced Estate Planning and Probate Law (June 1997).

2. ²947 S. W. 2d 737 (Tex. App. -- Austin 1997, motion for mandamus granted).

3. ³HB 1152 (Acts 1997, 75^th Leg., Ch. 52), HB 1314 (Acts 1997, 75^th Leg., Ch. 1375), HB 3086 (Acts 1997, 75^thLeg., Ch. 1435) and SB 506 (Acts 1997, 75^th Leg., Ch. 1302).

4. ⁴For a detailed discussion, see Ikard paper, supra, footnote 1.

5. ⁵Chapter 25 of the Government Code requires statutory probate courts to hire investigators (Tex. Gov. Code §25.0025) and court coordinators, administrative assistants and auditors in some cases (Tex. Gov. Code §25.0024). In addition, statutory probate judges often are entitled to a larger salary (Tex. Gov. Code §§ 25.0023 and 25.00262).

6. ⁶Perhaps the reason that no change was made to Section 5B is because the proponents of the 1985 change to Section 5A(b) believed they were changing the definition of "appertaining to estates" and "incident to an estate." If the definition of appertaining to or incident to an estate was changed, there was no reason to change Section 5B. Some court decisions since the 1985 legislative change have not taken that view. See, e.g, D.S. Entertainment, Inc. dba Baby Dolls Topless Saloon, Inc. v. Windle, 927 S. W. 2d 283 (Tex. App. -- Fort Worth 1996, motion to file mandamus dismissed).

7. ⁷The transfer was made pursuant to Section 5B, rather than Section 608, because it occurred before the recodification of the guardianship statutes in 1993.

8. ⁸Tex. Gov. Code §25.1802(a)(2) gives the Nueces County courts at law "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." Since the recodification of the guardianship statutes to Chapter XIII of the Probate Code, Sections 4, 5, 5A and 5B only apply to decedents' estates. The jurisdiction of the Nueces County courts at law over guardianship matters is unclear. Perhaps "the general jurisdiction provided by Section 25.0021" of the Government Code gives them the equivalent of a statutory probate court's jurisdiction over guardianship matters.

9. ⁹The multiple bills on Section 5B in the 1997 legislative session are evidence of this -- the opposite camps could keep each other's bills from passing but could not pass their own bills (except for the last-minute back-door change to Section 5A described above).

10. ¹⁰Rep. Tom Uher, D--Bay City, authored HB 1948; Senator Buster Brown, R-- Lake Jackson, authored SB 1348; and Senator Carlos Truan, D-Corpus Christi, authored SB 1946.