No. V-0079 (1947).

• Case Date: March 08, 1947
• Court: Texas

Texas Attorney General Opinions 1947. No. V-0079 (1947). 1March 8, 1947Hon. Weldon B. DavisCounty AttorneyAustin CountyBellville, TexasOpinion No. V-79Re: Construction of Article 15, Revised Civil Statures of Texas, qualifications of a county judge under various circumstances.Dear Mr. Davis:Your letter of January 10th to this Department, requesting a construction of Article 15, Revised Civil Statutes, 1925, in part is as follows:

"1. Is the present County Judge under the above statutes disqualified from acting as judge in any subsequent probate matter wherein he has heretofore acted as counsel and especially in new matters affecting the probate matter in which the present said county judge has never advised.

"The present County Judge, Honorable W. D. Bryan, was before January 1, 1947, an attorney in this county. As an attorney, he handled numerous probate matters, many of which are still in court, such as guardianship matters, administration of estates, etc. As an attorney in a case he naturally advised with his clients, signed papers as attorney for his client, etc. Now the question is, in these probate matters, where he has formerly represented a guardian, executor or administrator, is he now as County Judge qualified to enter orders as County Judge on final accounts, annual accounts, reports of sales of property, or any other order that it may become necessary to enter?

"2. Is a special County Judge who has been heretofore appointed by the Governor to serve in a certain probate matter qualified to continue to act since a new County Judge has been elected?

"Mr. J. Lee Dittert, an attorney of this City, was, until Dec. 31, 1946, the County Judge of this

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County. As the County Judge, during his tenure of office, he disqualified himself in many cases, and especially in probate matters, and in such cases where he certified his disqualifications to act to the Governor, the Governor appointed a Special County Judge to act in his stead. Now the question is this: Since Mr. J. Lee Dittert is no longer the County Judge does the Special County Judge that was appointed to act in lieu of Mr. Dittert still continue to act, or does the new Judge (Hon. W. D. Bryan) now act in such cases?"

Article V, Section 11 of the Constitution of Texas, is in part as follows:

"No judge shall sit in any case wherein he may be interested, or where either of the parties may be connected with him, either by affinity of consanguinity, within such a degree as may be prescribed by law, or when he shall have been counsel in the case. * * * *"

Article 15 of the Revised Civil Statutes of Texas, 1925, is as follows:

"No judge or justice of the peace shall sit in any case wherein he may be interested or where either of the parties may be connected with him by affinity or consanguinity within the third degree, or where he shall have been counsel in the case."

That part of Article V, Section 11, of the State Constitution and pertinent to our question provides that a judge is disqualified under three circumstances:

1. No judge shall sit in any case wherein he may be interested.

2. Where either of the parties may be connected with him either by affinity or consanguinity and within such a degree as may be prescribed by law.

3. Where he may have been counsel in the case.

We gather from your letter that the judge is not interested in the subject matter in any of the probate matters which will come before him, nor is he related to any of the parties interested...