Case Information
*1 Opinion No. M-924 Honorable Ogden Bass Criminal District Attorney Re: Jurisdiction of, and procedure
Brazoria County Courthouse in, the Brazoria County Court Angleton, Texas 77515 under
S. B. 240, Acts 62nd Legisla- ture, R. S. , 197 1, relating Eminent Domain. Dear Mr. Bass:
In your opinion request of June 11, 197 1, you set forth the follow- ing three questions:
1. Does S. B. 240, Acts 62nd Legislature, preempt the Brazoria County Court of Domestic Relations of eminent do- main?
2. What matters of eminent domain, if any, may be handled by the Brazoria County Court of Domestic Relations to passage of S. B. 240, Acts 62nd Legislature?
3. In the event it is decided affirmatively that the Brazoria County Court of Domestic Relations has jurisdiction to try cases of eminent domain, will said cases be tried as if said court was a district court? Article 2338-19, Vernon’s Civil Statutes, which became effective in 1965, created and set forth the jurisdiction of said Court jurisdiction in eminent domain cases as well as concurrent jurisdiction with the county courts. 8 provides:
“The of the Brazoria County Court of Domestic Relations shall extend to all matters of eminent domain of which has heretofore been vested in the County Court of Brazoria County, but this provision shall not effect of the Commissioners’ Court or of *2 the County Judge of Brazoria County as to roads, bridges, public highways and matters of eminent domain which are now within the jurisdiction of the Commissioners’ Court or the presiding judge thereof, the right of the County Judge of Brazoria County to appoint commissioners in condemnation, receive the reports and enter judgment.
It is the intention of this section to vest in the Brazoria Court to hear any and all matters in condemnation, whether by commission or jury of view, ap- peal to the Brazoria County Court of Domestic Relations or to the County Court only. ”
It is clear that prior to the enactment of S. B. 240, Acts 62nd Legis- lature, had judicial juris- diction to hear and try eminent domain cases, provided that Objections Award of Special Commissioners had been properly filed pursuant to Article S. B. 240, which became effective June 9, 3266, Vernon’s Civil Statutes. 1971, provides in part as follows:
“Sec. 1. The district courts of all counties in the State shall have concurrent with the county courts at law in eminent domain cases. The county courts shall have no jurisdiction in eminent domain cases.
“Sec. 2. In all counties in which there is no county court at law with jurisdiction of eminent domain cases, the party desiring to initiate condemnation proceedings shall file its petition with the district judge; and objections to the award of the special commissioners shall be filed 3. In all counties in which there is one or more
county courts at law with jurisdiction in eminent domain cases, the party desiring to initiate condemnation proceedings shall, except where.otherwise specifically provided by law, file its petition with the judge of the county court at law; and objections to the award of the special commissioners shall be filed in that county court at law.
-4509 - *3 6. The provisions of this Act shall not apply to any proceeding pending on the effective date of this Act. ”
By virtue of Section 1, judicial jurisdiction of eminent domain matters in Texas is vested concurrently in the district courts and the county courts at law except for pending proceedings excluded by Section 6. Section 7 of S. B. 240 amends Article 1960, Vernon’s Civil Statutes, to read as follows:
“Where of a county court has been taken away, altered or changed by existing law, the juris- diction shall remain as established, until otherwise pro- vided by law. The county courts shall have no jurisdiction in eminent domain cases. ”
S. B. 240 expressly takes away the jurisdiction of county courts generally to handle eminent domain cases. It provides that eminent do- main proceedings must now be initiated with the district judge by virtue of Section 2, or with the judge of the county court at law under Section 3, and objections to the award of special commissioners must now be filed court under Section 2, or in the county court at law if Sec- tion 3 applies. However, S. B. 240 does not take away the eminent domain expressly granted to the Brazoria County Court of Domestic Relations by Article 2338-19.
It is the general rule of statutory construction that subsequently en- acted statutes do not amend or repeal previously enacted statuted by impli- cation only, and that both subsequent and previous statutes are to be read and Where one of supposedly interpreted so that both can be effective, if possible. conflicting statutes is general in its terms and the other is specific, the special statute more clearly evidences the intention of the Legislature, and Townsend therefore it will control, both statutes being permitted to stand. v. Terrell, 188 Tex. 463, 16 S. W. 2d 1063 (1929). Article is a special statute conferring judicial of eminent domain matters on County Court of Domestic Relations, and to that extent is con- trolling over S. B. 240, a general statute. that S. B. 240, Acts 62nd Legislature, did not pre-
empt the Brazoria of emi- nent domain, and that said court has jurisdiction of eminent domain cases County.
Sections 2 and 3 of S. B. 240 now provide the means whereby eminent domain proceedings must be initiated, and how objections award must be filed. When the Legislature enacted Article 2338-19, did it create a district court or a county court at law with eminent domain or did it create some other court? The Brazoria County Court has characteristics of a district court, a domestic relations court, a probate court, and a county court at law. 1 of Article V of the Texas Constitution was amended in 1891, adding the pro- vision:
“The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform
of the District and other inferior courts thereto. ” In construing the provisions of the quoted amendment, the Supreme Court of Texas, in Jordan v. Crudgington, 149 Tex. 237, 231 S. W. 2d 641 (1950), held that the Legislature may legally authorize a domestic relations court to exercise some of the general of a district court. How- ever, it said that the pattern need not conform to the pattern of either district and that the Court of Domestic Relations of Potter courts or county courts, County was neither a district court nor a county court. We think the same The Legisla- is true with the Brazoria County Court of Domestic Relations. ture created a domestic relations court and gave it additional jurisdiction, eminent domain, but it is our opinion that the court created is not a county court at law as such a court is referred to and contemplated by S. B. 240. Therefore, to June 9, 1971, eminent domain proceedings County must be initiated with the district judge under Section 2 of S.B. 240.
Clearly, by virtue of Section 6 of S. B. 240, County Court of Domestic Relations may continue to handle eminent domain proceedings pending on June 9, 1971, where objections have been properly filed pursuant to Article 3266. In eminent domain proceedings filed with the district judge after June 9, 1971, objections to the award must be filed S. B. 240 makes no provision for the transfer of cases from the district some other court such as the Brazoria County Court of Domestic Relations. However, Section 4 of Article provides:
“Sec. 4. All cases enumerated or included above may be instituted or transferred to the Court of Domestic
Relations. Immediately after this Act takes effect all cases enumerated or included must be trans- ferred to the Court of Domestic Relations created by this Act. Thereafter the Judges of the District Courts of Brazoria County may transfer any case with- in the jurisdiction of the Court of Domestic Relations created by this Act to said Court of Domestic Relations, and the Judge of the Court of Domestic Relations may in said Court transfer any case pending to any District Court of Braeoria County as designated by the presid- ing District Judge of said County. Said Court of Domestic Relations may also sit for any of the District Courts of Braaoria County and hear and decide for such Courts any case coming within the jurisdiction of the Court of Do- mestic Relations created by this Act. All District Courts of Brazoria County may likewise sit for, hear and decide cases pending in the Court of Domestic Relations, as the sitting for, hearing .and deciding cases as now or here- after may be authorized by law for all District Courts of Brazoria County. ” that the Brazoria County Court of Domestic Re-
lations may handle all eminent domain matters pending on June 9, 1971, and may handle eminent domain cases initiated pursuant to S. B. 240 which are transferred by the district courts to said court under the provisions of Section 4 of Article 2338-19. 22 of Article provides: 22. The practice and procedure, rules of
evidence, the drawing of jury panels, selection of juries, issuance of process and all other matters pertaining conduct of trials and hearing in said Court shall be governed by provisions of this Act and the laws and rules pertaining to District Courts, general or special, as well as County Courts; provided that juries civil or criminal shall always be composed of twelve (12) members except that in misdemeanor criminal cases the juries shall be com- as well as six (6) member juries posed of six (6) members, *6 page 6 (M-924) in cases where this court has concurrent
with the County Court as herein provided..” County on June 9, 1971,
Eminent domain cases pending in Brazoria if tried in the Brazoria County Court of Domestic Relations, must be tried before six (6) member juries, since to try such cases is concurrent with the county court. The general provision in Section 22 for twelve (12) member juries will apply to those cases initiated the enactment of S. B. 240. that eminent domain matters tried in the Brazoria
County Court of Domestic Relations must be tried as if the court was a district court, excepting those cases pending on June 9, 1971, which will be tried before six (6) member juries.
SUMMARY
The Brazoria has jurisdiction to try cases of eminent domain which are transferred to it by the district courts of Braeoria County, and such cases must be tried as if said court was a district Said court may also try eminent domain matters pending County on June 9, 1971, but such cases must be tried before six (6) member juries.
n V truly yours , n
f ./7 I
c. MARTIN y General of Texas Prepared by Robert L. Towery
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
C. W. Pearcy
Houghton Brownlee
Larry Craddock
Mel Corley
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant