Does the 356th District Court in Hardin County, Texas handle probate matters like wills and estates?

Texas AG Opinion JM-1244: Does the 356th District Court Have Probate Jurisdiction?

Plain-English summary

A state senator asked whether the 356th District Court of Hardin County has jurisdiction over probate matters (wills, estate administration, guardianships, and the like). The statute that created the court, Government Code section 24.502, gives it concurrent jurisdiction with the county court over "all matters of civil and criminal jurisdiction, original and appellate," in cases where the county court has jurisdiction. The question was whether that grant of concurrent civil jurisdiction sweeps in probate.

The Attorney General concluded it does not. Probate is treated throughout Texas law as its own category, distinct from civil and criminal jurisdiction. The Texas Constitution, in article V, sections 16 and 29, addresses the county court's civil, criminal, and probate jurisdiction separately, giving the county court "the general jurisdiction of a Probate Court" as a distinct grant. The legislature does the same across the statutory county courts (Government Code chapter 25). The opinion also cited decisions from other states holding that "civil causes and actions, civil suits and civil cases do not include any case arising under the county court's probate jurisdiction." Because the statute gave the 356th District Court concurrent civil and criminal jurisdiction, not probate jurisdiction, the court did not acquire original probate authority.

The one probate role the district court does have comes from the Probate Code. Section 5(b) provides that in counties without a statutory probate court, probate filings go to the county court, but when a probate matter becomes contested, the county judge may assign a statutory probate judge or transfer the contested portion to the district court, which then hears it. So the 356th District Court's probate jurisdiction is limited to contested probate matters transferred to it under section 5(b); the county court keeps the ordinary, uncontested probate business.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 1990)

The 356th District Court and the Hardin County court: The opinion drew the line between the two courts on probate. Original probate jurisdiction stayed with the county court; the district court came in only when a probate matter was contested and transferred to it under section 5(b) of the Probate Code.

People filing wills, estates, and guardianships in Hardin County: The opinion meant that ordinary probate filings belonged in the county court, not the 356th District Court. A matter would reach the district court only if it became contested and the county judge transferred the contested portion.

Practitioners and legislators reading court-creation statutes: The opinion reinforced that a statute granting a district court concurrent "civil and criminal" jurisdiction with a county court does not, by itself, confer probate jurisdiction, because probate is a separate category in Texas law.

Common questions

Can I file a will or open an estate in the 356th District Court?
Under this opinion, no. Original probate jurisdiction in Hardin County rested with the county court. The 356th District Court had no original probate jurisdiction.

When would the district court get involved in a probate case?
Only when the matter became contested. Under section 5(b) of the Probate Code, the county judge could transfer the contested portion of a probate proceeding to the district court, which would then hear it.

Why doesn't "civil" jurisdiction include probate?
Because Texas law treats probate as its own category. The opinion pointed to article V, sections 16 and 29 of the Texas Constitution and to the statutory county courts (Government Code chapter 25), all of which address civil, criminal, and probate jurisdiction separately.

What happens after the contested part is resolved?
Section 5(b) provides that once all pending contested matters are resolved, the contested portion is transferred back by the district court to the county court for further proceedings consistent with the district court's orders.

Background and statutory framework

Government Code section 24.502 created the 356th Judicial District (composed of Hardin County) and gave the 356th District Court concurrent jurisdiction with the county court over all matters of civil and criminal jurisdiction, original and appellate, in cases within the county court's jurisdiction, with matters filable in either court and transferable between them.

The constitutional framework separates the categories. Article V, section 8 gives district courts broad jurisdiction of all actions except where jurisdiction is conferred on another court. Article V, section 16 delineates the county court's civil and criminal jurisdiction and separately provides that the "County Court shall have the general jurisdiction of a Probate Court," listing probating wills, appointing guardians, and granting letters of administration. Article V, section 29 again treats civil, criminal, and probate business of the county court separately. The opinion read these separate treatments, together with the parallel structure of the statutory county courts (Government Code chapter 25), to mean that a grant of "civil" jurisdiction does not include probate. It supported that reading with out-of-state authority: Campbell v. Hickory, 278 P. 1088 (Okla. 1929); Gary v. McKnight, 150 P. 1046 (Okla. 1915); Appeal of Slattery, 96 A. 178 (Conn. 1915); and State v. Mann, 45 N.W. 526 (Wis. 1890).

The district court's limited probate role comes from section 5(b) of the Probate Code. In counties with no statutory probate court, probate applications, petitions, and motions are filed and heard in the county court, except that in contested probate matters the county judge may, on his own motion or on a party's motion, request assignment of a statutory probate judge (as provided by Government Code section 25.0022) or transfer the contested portion to the district court, which may then hear it as if originally filed there. The county court keeps jurisdiction over management of the estate except for the contested matter, and once the contested matters are resolved, that portion is transferred back to the county court. On that basis the opinion held the 356th District Court's probate jurisdiction limited to contested matters transferred under section 5(b).

Citations

Constitutional and statutory authorities:

• Government Code § 24.502 (creation of the 356th Judicial District; concurrent civil and criminal jurisdiction with the county court)
• Tex. Const. art. V, § 8 (district court jurisdiction); § 16 (county court civil, criminal, and general probate jurisdiction); § 29 (county court terms and probate business)
• Government Code ch. 25 (statutory county courts; civil, criminal, and probate jurisdiction treated separately); § 25.0022 (assignment of statutory probate judges)
• Probate Code § 5(b) (filing and hearing of probate matters; transfer of contested matters to the district court)

Cases:

• Campbell v. Hickory, 278 P. 1088 (Okla. 1929)
• Gary v. McKnight, 150 P. 1046 (Okla. 1915)
• Appeal of Slattery, 96 A. 178 (Conn. 1915)
• State v. Mann, 45 N.W. 526 (Wis. 1890)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1244
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1244.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

November 13, 1990

Honorable Carl A. Parker
Chairman
Education Committee
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. JM-1244

Re: Jurisdiction of the 356th District Court over probate matters (RQ-2040)

Dear Senator Parker:

You ask whether the 356th District Court of Hardin County has jurisdiction of probate matters.

Section 24.502 of the Government Code provides for the creation of the 356th Judicial District Court and makes provision for its having concurrent jurisdiction with the county court in designated types of cases. Section 24.502 states:

    (a) The 356th Judicial District is composed of Hardin County.

    (b) The 356th District Court has concurrent jurisdiction over all matters of civil and criminal jurisdiction, original and appellate, in cases over which the county court has jurisdiction under the constitution and laws of this state. Matters and proceedings in the concurrent jurisdiction of the 356th District Court and the county court may be filed in either court, and all cases of concurrent jurisdiction may be transferred between the 356th District Court and the county court. (Emphasis added.)

The matter of whether the 356th District Court has jurisdiction of probate cases turns on whether the granting to the court of concurrent jurisdiction with county courts in civil matters vests the court with probate jurisdiction. The issue becomes one of whether probate jurisdiction comes within the ambit of civil jurisdiction under your scenario.

Section 8 of article V of the Texas Constitution provides the jurisdiction of a district court

    consists of exclusive, appellate, and original jurisdiction of all actions, proceedings, and remedies, except in cases where exclusive, appellate, or original jurisdiction may be conferred by this Constitution or other law on some other court, tribunal, or administrative body.

Section 16 of article V of the Texas Constitution addresses the matter of the jurisdiction of county courts. It delineates the county court's original civil and criminal jurisdiction as well as its appellate jurisdiction in civil and criminal matters of which justice courts have original jurisdiction. Section 16 further provides the "County Court shall have the general jurisdiction of a Probate Court," specifically setting forth such matters as probating wills, appointing guardians, granting letters of administration, etc., as provided by law.

Section 29 of article V of the Texas Constitution also treats the civil, criminal and probate jurisdiction of county courts separately. Section 29 provides that the county court "shall hold at least four terms for both civil and criminal business" annually. In separately addressing the county court's jurisdiction over probate matters, section 29 states that "said court shall dispose of probate business either in term time or vacation, under such regulation as may be prescribed by law."

While we have found no Texas cases which have addressed the matter, opinions of courts from other jurisdictions support our conclusion that "civil causes and actions, civil suits and civil cases do not include any case arising under the county court's probate jurisdiction." Campbell v. Hickory, 278 P. 1088 (Okla. 1929); Gary v. McKnight, 150 P. 1046 (Okla. 1915); see Appeal of Slattery, 96 A. 178 (Conn. 1915); State v. Mann, 45 N.W. 526 (Wis. 1890).

A review of jurisdiction vested in the numerous statutory county courts of this state reflects that the legislature treats civil, criminal and probate jurisdiction separately. Gov't Code ch. 25.

Section 5 of the Probate Code provides the circumstances in which the district court may acquire jurisdiction in contested probate matters. Subsection (b) of section 5 provides in pertinent part:

    In those counties where there is no statutory probate court, county court at law or other statutory court exercising the jurisdiction of a probate court, all applications, petitions and motions regarding probate, administrations, guardianships, limited guardianships, and mental illness matters shall be filed and heard in the county court, except that in contested probate matters, the judge of the county court may on his own motion (or shall on the motion of any party to the proceeding, according to the motion) request as provided by Section 25.0022, Government Code, the assignment of a statutory probate judge to hear the contested portion of the proceeding, or transfer the contested portion of the proceeding to the district court, which may then hear contested matter as if originally filed in district court. The county court shall continue to exercise jurisdiction over the management of the estate with the exception of the contested matter until final disposition of the contested matter is made by the assigned judge or the district court. In contested matters transferred to the district court in those counties, the district court, concurrently with the county court, shall have the general jurisdiction of a probate court. Upon resolution of all pending contested matters, the contested portion of the probate proceeding shall be transferred by the district court to the county court for further proceedings not inconsistent with the orders of the district court. (Emphasis added.)

The granting of concurrent jurisdiction in civil and criminal matters over which the county court has jurisdiction to the 356th District Court does not vest the court with original probate jurisdiction. Its jurisdiction is limited to contested probate matters that may be transferred to the district court pursuant to subsection (b) of section 5 of the Probate Code.

                  SUMMARY

    The 356th Judicial District Court of Hardin County's jurisdiction over probate matters is limited to contested probate matters that may be transferred to the district court pursuant to subsection (b) of section 5 of the Probate Code.

                                 JIM MATTOX
                                 Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General