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Click here for the full text of this decision FACTS:This is an original mandamus proceeding in which the relator challenges a district court’s jurisdiction to hear a contested probate matter transferred from a constitutional county court. The transfer occurred when the county judge executed an order under the provisions of Texas Probate Code 5(b). The county judge executed the transfer order as a result of his disqualification under Texas Constitution Art. V, 11. The relator, Mike Orsagh, attacks the mechanism used by the county judge to overcome the disqualification. HOLDING:Conditionally granted. The court agrees with the San Antonio Court of Appeals’ conclusion in In Re: Gonzalez, 115 S.W.3d 36 (Tex. App. – San Antonio 2003, orig. proceeding), that the execution of a transfer order under 5(b) constitutes the exercise of judicial discretion. The exercise of discretion is most apparent in this proceeding when one considers that the county judge exercised a choice between requesting the assignment of a statutory probate court judge or transferring the contested portion to a district court under 5(b)(1) & (b)(2). Since the discretionary acts of a constitutionally disqualified judge are void, Judge Stephenson did not have authority to transfer the probate proceeding to the district court. The court notes that it does not appear that a transfer of a probate case to a district court is a “manner as may be prescribed by law” as required by Article V, 16. Texas Government Code 26.012 specifically addresses instances wherein a constitutional county judge is disqualified in a probate matter. At the time that Judge Stephenson executed the transfer order, 26.012 provided in relevant part as follows: “Disqualification in Probate Matters. (a) If the county judge is disqualified to act in a probate matter, the judge shall immediately certify the disqualification to the governor and the governor shall appoint a person to act as special judge in the case. The special judge shall act from term to term until the disqualification ends.” Courts generally construe the word “shall” in a statute as mandatory unless legislative intent suggests otherwise. Albertson’s Inc. v. Sinclair, 984 S.W.2d 958 (Tex.1999). Therefore, it would appear that, absent the selection of a mutually agreed-upon visiting judge under Article V, 16, the county judge was subject to a mandatory, statutory requirement to certify his disqualification to the governor for the appointment of a substitute judge. Moreover, the transfer of a probate case to a district court under 5(b) does not appear to be a practical method for resolving a constitutional county judge’s disqualification. Under 5(b-4), the constitutional county court is required to continue exercising jurisdiction over the management of the estate with the exception of the contested matter which has been transferred to the district court. Section 5(b-3) requires the district court to transfer the probate matter back to the constitutional county court whenever the contested matter is resolved. The constitutional county court’s retention of jurisdiction over the uncontested portion of a probate proceeding is simply not feasible when the county judge is disqualified from presiding over the case. The real parties in interest argue that the district court possessed concurrent, original jurisdiction with the constitutional county court to enter the various orders entered by the district court. They cite Eppenauer v. Eppenauer, 831 S.W.2d 30 (Tex.App. El Paso 1992, no writ), in support of this proposition. Relying upon the text of Texas Probate Code 149C (Vernon 2003), the El Paso Court of Appeals held that a district court had original jurisdiction to consider a suit to remove an independent executor which was initially filed in the district court. The court noted in reaching its holding that 149C provided a narrow exception to the general rule that original probate jurisdiction lies in the county courts. Relying upon Eppenauer, the real parties in interest contend that the district court had jurisdiction to enter orders in this probate proceeding because a motion to remove the independent executor had been filed. The court concludes that the holding in Eppenauer is distinguishable on two bases. First, the party seeking to remove the independent executor in Eppenauer initiated the claim for removal of the independent executor in the district court. In this proceeding, the claim for removing the independent executor was initiated in the constitutional county court and then transferred to the district court in an order which we have determined that the county judge was without jurisdiction to enter. Second, the orders entered by the district court in this proceeding addressed matters other than just the removal of the independent executor. OPINION:Arnot, C.J.; Arnot, C.J., and Wright and McCall, JJ.

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