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53 Tex. L. Rev. 323 (1974-1975)
Texas Probate Jurisdiction--There's a Will, Where's the Way

handle is hein.journals/tlr53 and id is 343 raw text is: Texas Probate Jurisdiction--There's a Will, Where's the Way?* Boone Schwartzel and Doug Wilshusen Until 1973 the Texas constitution1 and Probate Code2 vested original probate jurisdiction in the county courts3 and appellate juris- diction and general control4 over probate matters in the district courts. But appellate review by the district courts was de novo,5 resulting in duplicative proceedings wasteful of public and private time and money, especially when a statutory probate court with substantial expertise had conducted the initial trial. In 1973 the legislature undertook a two-step reform of probate jurisdiction. First, it submitted to the voters an amendment to article V, section 80 of the constitution authorizing statu- tory redistribution of probate jurisdiction. Second, it passed a revision of section 57 of the Probate Code redefining the jurisdiction of district courts in probate matters. Unfortunately, this reform effort was marred either by careless draftsmanship or by the legislature's unwillingness to place adequate restrictions on politically powerful county court judges. The legislature eliminated the district court's appellate jurisdiction under article V, section 8 of the constitution and section 5 of the Pro- bate Code, but its failure to amend other statutes dealing with probate review by appeal, certiorari,9 bill of review,10 and mandamus creates The editors gratefully acknowledge a grant from the William I. Marschall, Jr. Memorial Fund to subsidize the printing expense of a student Comment in each volume of the Review. * The authors would like to express their special thanks to Professor M. Kenneth Woodward for all of the aid, guidance, and time that he gave us during the preparation of this comment. We also wish to thank Former Justice of the Texas Supreme Court St. John Garwood and Professor Albert Jones for their helpful comments. 1. TEx. CONT. art. V, § 8. 2. Tex. Laws 1955, ch. 55, § 5, at 91. 3. As used in this comment, the term county court includes both constitutional county courts in the exercise of their probate jurisdiction and courts especially created and organized for the sole purpose of exercising probate jurisdiction. 4. General control is a nebulous and essentially meaningless term as used in the appellate jurisdiction and general control phrase. At most, the district courts' general control power could have been a source of its mandamus power over the county courts, but even this is doubtful. See note 75 infra. 5. TFx. R. Civ. P. 337. 6. TEx. CONS-F. art. V, § 8. The proposed amendment was approved by Texas voters and became effective on Nov. 23, 1974. Christian v. Howeth, No. 17595, at 4 (Tex. Civ. App.-Fort Worth, Oct. 18, 1974). 7. Tex. Laws 1973, ch. 610, § 1, at 1684. 8. TEx. PRO. CODE ANN. § 28 (1956). 9. Id. § 30. 10. Id. § 31. 11. TEx. Rav. Civ. STAT. ANN. art. 1914 (1964); cf. TEx. CONST. art. V, § 8. 323

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