Case Information
*1 R-59 Tmm A-rrox~~y GENERAL OF TEXAS. Auerm aa. -
PRICE DANIEL *TTORNEY GENERAL Maroh 8, 1947
Hon. Weldon B. Davis Opinion No. Q-79
County Attorney Re: Construction Austin County of Article 15, Bellville, Texas Revised Civil .Staturee of
Texas, qualifications of a judge under various ciroumstances.
Dear Mr. Davis:
Your letter or January 19th to this Department, requesting a oonstruotion ,Artlale 15, Revised Civil Statutes, 1925, in part is as r0ii0ws:
“1. Is tbe present County Judge under the above statutes disqualified from acting as judge in any subsequent probate matter wherein he has heretofore acted es counsel and especially in __ new matters affecting the probate matter In which
the present said county judge has n.ever advised.
“The present County Judge, Honorable :?I. C. Bryan, was before January 1, 1947, an attorney in thts county. As en attorney, he imndled numerous probate matters, many of which are still in court, such as guardianship matters ,. administration of estates, eto. As an attorney In a case he natur- ally aevlsed with his olients, simed. papers as attorney ror his Client, etc. Now the question .I ,. is ,. in t&se probate matters, where he has ,former-
ly wpreseated 8.. guardian, eraoutor or administra- tor, is. he ww as County Jld’gs”qualified to enter orders ae4tmtty Judge .owfinai eooount.8, annul aoeounts; ‘reports or’ reles ,of prop6 rty, or any other order that it may beoome neoessary to enter?
“2. IO a rpeolal County Judge who has been appolnted tha Oovrmor to save heretororo a oertrln probate matter qurliri~e to oontinue aot shoe a new Oounty Judge ha been eleotedd?
“Mr. 5. Lee Dittert,an attorney or this City, was., until Deo. ‘31, 1940, the County Judge or this i
Hon. Weldon B. Davis, Page 2, V-79
County q As the County Judge, during his tenure of offloe, he dlsquallfled hlmaelf in many oases, end especially in probate matters, and in such cases where he certified his disquallfioetlons to act to the Governor, the Governor appointed e Special Coun-, ty Judge to act in his stead. Now the question la this : Since Mr. J. Lee Dittert is no longer the County Jua~ge does the apeolal County Judge that was appointed to act in lieu of Mr. Dittert at111 oon- tinue to act, or does the new Judge (Hon. W. D. Brg- an) now act In such cases?”
Article Q, Section 11 of the Constitution of Texas, is in part as follows:
*No judge shall sit ion any case wherein he may be interested, or where either of. the parties may be oonnected with him, either by affinity of consanguinity, within such a degree as tmy be pre- soribed by law, or when he shell have been oounsel in the oese. * * * Ww
Article 15 of the Revised Civil Statutes of Tex- 1925, 1s a9 follows: as,
*Ro judge or justioe of the peace shall sit any oase wheraln he may be interested or where eith- er of the parties mry be oonneoted with him by af- finity or consanguinity within the third degree, or whore he shall have been oounsrl in the ease.”
That pert of Artlole V, Seotlon 11, of the State Constitution and ertldent to our question provides that e judge Is disqua E lried under three olroumstanoes:
1. No judge shall,slt in any case wherein he rmy bo lntorosted.
2. Where either of the parties may bs oonneot- ed with him eitbsr by aiilnlty or oonsanguinlty and within euoh a degree as nuy be presorlbed by law.
3. Whore ho may h4ve beon oounsel in the oeso, Ws ather iron your letter that the judge 1s not lntereat- ed Pn the subjoot matter In any of the probate matters whioh will oom 4 before him, nor Is he related to any of the parties lnterssted in ths subjeot matter being llti- grtod borore th4 aourt. You will note rmm ths r0mg0i0g
Hon. Weldon B. Davis, Page 3, V-79
that if the oounty judge has a peounlary interest in ths sub jeot matter over whloh ho ,prosl4ea, ho Is dla- qualified e Tha protsotlon of the citizens against ln- justioc end wrong mkes thla enforo4ment sassntlally nsoeesery o The lrpartlalIty wbloh la requIr4d of e judge is lncompetlble with having a peouniary interest l;e;Ee;ubject matter of the litigation over which he
hawvsr irom your requmst thst e he pre4kw~o%~&dg4 baa io labelrest In the subject matter of any of the oases In which he is to al%, there- fore, w4 do not deem It neoesaary to dlaouss this phase 0r the law.
Also, the Constitution, as well as the stat- utes, forbids any judge to sit where he msy have been counsel in the case. The roeson for this is, of oourse, it would be highly 1mpolitIo for a judge to decide a question lawfully befora him far adjudication, where ho had provlously been of ooun44l for one of the p4rfAes to a proceeding lnvolvlna ths qu4lJbion to be daofdsd.
In other. words, such 8 judge is not suflposed by the law to be thot fslr, unbin-?a , ungre.iuaiced judae before Whom the parties in his, CO,urt ,maW trustfully .pmsent tlw, oontror4r4i44.
The firat quoatloa that must be d4temlneA in ordrr to anawer your Inquiry, 18 what Ia meant by the word *oasow as used fn this aoameotlon. The word ‘*case” aa used in the Oonatltutlon and thla sttitute means any logal ooatnroray betwaoa gwtI~a with roapeot to a mat- tar Or iant or 18~; any jmtloiable mattar or thfng botweoa spp4alng p4rtlaa pmmnt& ior daolslan; any pro- a jadg4 wIilih reapsot to any right oeedlag rightly befOr 4f the partier, whether Lagal or equltablo, and whethar ‘1% lnvolvar a pmporty right or a para~aal right.
ft inalud4a ,ordcm wbth4r lnterlooutdti hzn- appealable, or Interlooutory appealable awdam. F In a matter p4ndI beroro the Dlatriot Court, there Ay l rla a varlouu 14ga oontrovemier "p reruttiry; in lntarloa- rrtory Or&Or% iYm& whioh a0 appeal rould lia. Upon rush an appeal am,
or a r080ir~*
furl or the baklag
ratid for l )proral
00 l rlu %8 0 pub090 p r o owdlr( dth mp r ot to a par- 4lalW or mttor, aad &ik4, oaah of rhloh’or- tloular thq AppOAl8tO dourt would ba a "olab', d4r4 apt88 rmohl8g there pmpwly befor, the Oourt to be justiolat- tba ad - draldd bt t)ra OOu&?te Uo think tin word l on844
- L Hon. Weldon B. Davis, Page 4, V-79
the aonnection being considered .Inoludee such interlocu- tory appeala and i8 the a(180 In.whIoh he must have been counsel to one of thGa=8. It doss not mean the gen- eral cause, proceeding or 0888, out of,which the inter- looutory order arose, for that oa8e or prooeedlng is not berore the Court ior decision one war or the other. The admlniatration of an e&ate end guardienship in probate is a oontlnoi pmoadure and 8eoh r8ek of the, year there ay be an appl oatlon 2 filed In the ~Pmb8t8 Moue in the name estate or guerdlanahlp. However, the subjebt mat- ter In eaoh Inatanoo may .ba diiierent entirely aep- arate from the application filed in the same estate or &ardianship an applioation and next week an applloatlon might be tiled for an allow- at a later and dirrerent time. For instanoe,
for the sale o? reel estate might be filed anoa 0r an administmtor~s tees or attorney’8 ices, or It might be that the oounty judge Is .oallsd upon for an approval oi an annual or final aooount. In eaah Instanoe the subjeot matter boiors Oourf I8 entirely ~dirferent, separate ana dletinot from the other. In Volume 6, page 230 of Wotis md Phre8e8, w8 find the folloklng: In whloh ‘a mother ~(11 appoInted
nA pmoudlng guardian of the person’and bar datrghtsr property wa8 a voa8e’ within statute providing that no pereon ehall slt a8 a judge in ady ase in whIoh he ha8 been of oou~el, but oass % en ed with entry of order appointing guardlen whloh .wa8 a ‘ilaalq .ana appeal-, able order, and judge who aoted as attorney in that oa8e wan not .dI8quelI~Ied rrom hearing and detexmln- raleed by order dIr8otIly &erdien Ing qurrtion to’ tile her Inv8ntory an4 aooount8, sinoe that wan e .$ew and dI8tInot *oe~le*~ Organlo hat. II 84, 48 u.s.C.A.
8 686. In co Wetilatihi’p OS‘ Rltohoook, 20 Hew. bS3.*
Al80 In 33 Oorpu8 JurIe.,Page 1004,we find the tollo*I~:
*A hyd&e who he8 aoted u oowe1 in the ap- rdiaa or a raoelver I8 not neoae- polntmmt of a eerily dIrqaalI ed from aotily In other ratt8h r8- r latiw td tb utate. Thu h8 18 not dirquallfled frqm eating In auttra SUetIm to the 88ttlem8nt Of their 8OOOUllt8." .
In th8 oe8e of Tltlo @aaFnty and Sweaty Ooape- 6@6, tu8tIoe Kane ot the Bupremo ay 18. Sllolrer, 128 ho. Ooiart of Oklahoma bd thi8 to 8e7:
“The l88t e88Iganot $8 t0 the 8ff8Ot the aourt emd w*mlIa~ th8 d8fmdant*r motion
i *5 . .
. a
Hon. Heldon ti. Davis, Page 5, V-79
set aside the judgment herein on the ground that the settlement CC ,T. 1. Sllnker's gusrdianship ac- the county the rea- counts court VIRS voi?, for son that the ,iudge settling Jaid acoouats was diSa_ualified to SD act, in that he hs? repre,- sented the. said S. I. Slinker es an attorney securing his appointment maay years prior to the date of the said accounting. The only evldeure of,= rered on this point was t&e order removing Bdr Slinker as gaardian, whloh contains a recital that said judtdg6 was disqualified to sit in the hearia of the petition for said Slinker's removal, in that he bed been Of counsel in the natter of SeOUring his appointment. We do not think that this evi- dence tends to connect the county judge with the accounts settled such a manner as to disqualify him from acting In the matter of their settlement, In the case Of State ex 1-41 MCCormiok v. woody,14 Mont, 465, 36 PBO. 1043, It wa8 held: ‘A judge who had been attardy for an adnlniatratrir la not dis- qualified to try a proaaedlng brought by oertain oredltore of t& b&ate to remove her, plder sec- tIon M7 a? the Coda of Civil Procedurea providing a judge ehall not eat as such where he has been 8ttOZp8y for either party In the action or'prxeed- IlyO'*
SImIlarly, In Ryan tar bsIg3, 136 Pat q 804, the hurt In holdl~ thtrt a OountJI judge was not disqual- to snter ord8r for the 8ale oi a dooedent's iiiad land beoaues he bed formerly been ths attorney for the admin- istrator of the estate said:
"ft is urged on behalf 0s appellants that Noon- an, the aoaaty judge, harim been the attorney for the administrator, Rays, was di8qualifIed under aode section 464, Revised Statutes. to enter the oXd8r for the sale of the land. The pertinent por- tion seotion 404 made a8 follows: 'A judge shall In not aot a8 suoh,in shy of ths follawing cases: an 8otiOn or prooreding. . , when he has been an at- torney or ooun881 far aIthar party in the aation or proasediry, Uti888 by tha oonaant of all the parties This oas4 ha8 baen before the sup- to the aotion.' *4 In Ryan *I# Gsigel, 39 Cole. 35% oourt, 358, 89 ha. 7m, 00Wt, 8 eakily throwh the lats ChIet Juatioe $tC)dC), 1a I& 'The proceed- real est8te Is separate and ais- ing to sell tlaot fnm ths atslairtntlon of the estate prop*rC; *6 Hon. Wsldon B. DaVia, Page 6, V-79
and is a special proceeding, recognized by the statute.’ Judge NoonanVs profeasionn1 oonnec- tion with the estate had entirely ceased long before proceedings were instituted to sell in this case
the real estate. For several years af- ter Noonan’s election to the office of ‘probate judge the title to the land In question was in- volr4d in an adverse proceeding in the land of- fice. Inasmuch as Judge Wootnn had nothing what- ever to do, as an .attornay, with the proceeding there was nothing in his to sell the real estate, early professional connection with the adminis- tration proceeding that disqualified him from later, as county judge, entering the order quest ion ?
In probrtb mattera,edch epplioetion ~which is filed pa considered a case in a sansb. Each order which is en- ter4d the probate judge may be appealed from and has all the necesaasy requirement4 to make it a case under th6 law. Therefore, if the prreent aoulaty jkdgo hms ad- risod in any partioular applioation or ratter n4w or hereafter before him, he is diequalified. If, on the other hand, the matter is one in which he has never ad- vised the administrator or guardian, then it is, the o- pinion of this Department that .hs is not disqualified to ,aat just because he haa advised the admi~nlstrator or guardian in other matters in the sam4 estate. With the ~foregoing in mind, it is the further opinion of this Department that the county judge is not disquali- fied to aot .in approving annual aocounts, .orders approv- ing or confirming the sales o? real estate and other or- ders in the same estate or guardianship in which he has acted a4 aouneel, if he has not advised in the partiou- lar order which he is now called upon to ent tr or required to approve action which he had advised upon as counsel, 50 S.W. (2d) 473; ~162 S.W. (26) 419.
It is hardly oonosivabf4, howevtr,. how an attor- ney who haa been oounsal for the administrator or guardian of an estate, aould later sit as county jud(r~e and approve the final account in that. partiaular 44tat4 withaut pess- ing upon some phase of the matttr on whloh he has fonner- Therefore, it is ths opinion of this Depart- ly adviaed. ment that the county judg4,ia diequalified to approve the final aollnsel. account in [0444] any In whioh ho Ma acted as
Queetibn NO. 2. Is a special judge who *7 Hon. Weldon B. Davis, Page 7, V-79
hsa been heretofore appointed by .the governor to serve In a certain probate matter qualified to oontinue act since a new county judge has been eltcted and duly qualified?
“Art. 1932.’ Special judge in probate .matter. “When a county judge is disqualified to act any probate matter, he shall forthwith certify his disqualli’ioation therein to the Gwernbr,where- upon the Governor shall appoint some person to act aa speoial judge in said cast%, who shall sot from term to term until such disqualification ceases to axist~ A speoial judge ao appointed shall receive the same oompansation as is now or may hereafter be provided law for rsgular judgea in similar casea. and the Commissloners~ Court ahalb, at the beginning of eaah ffacol yeor, in the budget the inolude spec- county, sum far the payment of the a suffirient ial judge or judges appointed by the Governor to ;;~9f0faF~~;;~‘f’;,f ;;;;iig f$ge . As ame~nded Acts ecial oountg The ststutaa provide for the s disqualiffoa- ig”,,’ ;;e;gt from tima ta tire until auo ii fallaws that the purposes and it naturally for which tka special oounty judge In this ease was ap- pointed were terminated upon the present and regular county judge taking the math 4.S office January 1, 1947, Now, even if the present oounty is disqualified judge the ~atatutes and Constitution, he should notify under the Gbvernor of such disqualification and In turn anoth- er special county judge would be appointed in his stead, Therefore, it is the opinion of this Department, In view ai the faregoing statute, that the speaial judge haretofora appalnted by the Obvernor to serve in certain probate mattars cannot adntixua to sot since the new and regular eleated aounty judge’ took tha oath of office Jan- uary 1,~ 1947, and qualified an that data.(Art.1932,V.A.C.S.)
We realize that w4 havr, more or less, dis- auased the matter g4nrr4ll~ it is impossible to ren- but der an opinion on a partidar case unless we have all of the faots at hrnd whioh relate to that particular caaa. In the event yau bars a partiaalar ont in mind on whiah you want an opinion, you should submit all the fasts per- taining to case state w&t partioular order the *8 . . .
,Eon. Weldon B. Davis, Page 8, V-79
county judge is called upon to enter. We con then ren- der~an opinion whioh will cover your speoific question,
SUMMARY (1) The present aounty judge of Austin County is not disquellfled to act in matters of probat reletlab to the approval of annual ac- oounttB, reports of sale, eta., ewcpt the approv- al of final moounto, in which he previously ado visai ao aoumsl provided the aubjeot matter now before him as judge has no direct relatlon- ship to that matter in which he advlsed as..uoun- ael. Orgenie A& ff 84, 48 U.S.C.A. 8 636, re y&ian~t of Hit&mot&, 20 Raw. 353;~33 Corpus 004; Title Quoranty and Sure;iQ;t;pany
e VS. Siinkr, 128 Poo. 694; and Ryan vs. , 138 Pao. 804,
(2) The opsolal rounty u&s appointed under Artlolo 1938, Varnoa*a Asnotm 8d al+11 Sbatutes, 1
where the ryeha oolul(ry j,Mgo lo dirqPrsLiflod aot in prabato matters, aon&& ooatintrs to aat al- ter tho newly elooted aoMtjy jpdgo quollflao for orfioe, in view or the wording of the above
YOare very truly l%r+~@ Allon Ar8itiaat ,. ElArd)n: jrb
Thls’Opinlon Ooaeidor~,aod Apjwtwod
lnL$mitad aw0205.00