Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Honorable Patrick J. Ridley Opinion No. ?lW-560
Supreme Court Building
Bell County Attorney
P. 0. Box 12546
Austin. TX. 76711. 2546
P. 0. Box 474 Re: Power of district judge in
5121475-2501 Belton, Texas 76513 one county to hold proceedings
Telex 9101674-1367 under section 17.03 of the
Telecopier 512/4750266 Family Code in another county
1607 Main St., Suite 1400
Dear Mr. Ridley:
Dallas, TX. 75201-4709
2141742.6944 You ask whether a district court in a county adjoining the county
in which a suit under section 17.03 of the Texas Family Code is filed
may hold the section 17.03 hearing when the judge of the court in
4624 Alberta Ave., Suite 160
El Paso, TX. 79905-2793
which the suit is filed is unavailable. Section 17.03 provides in
9151533.3464 relevant part as follows:
(a) An authorized representative of the Texas
1220 Dallas Ave., Suite 202
Department of Human Resources, a law enforcement
Houston, TX. 77002.6966
7131650-0666
officer, or a juvenile probation officer may take
possession of a child without a court order under
the following conditions and no others:
606 Broadway, Suite 312
L”tbxk. TX. 79401.3479
. .. .
606/747-5236
(3) upon personal knowledge of facts which
4309 N. Tenth. Suite B would lead a person of ordinary prudence and
McAllen, TX. 76501.1665 caution to believe that there is an immediate
5121662.4547
danger to the physical health or safety of the
child and that there is no time to obtain a
200 Main Plaza, Suite 400 temporary restraining order or attachment under
San Antonio, TX. 762052797 Section 17.02 of this code; or
5121225-4191
(4) upon information furnished by another
An Equal Opportunity/ which has been corroborated by personal knowledge
Affirmative Action Employer of facts and all of which taken together would
lead a person of ordinary prudence and caution to
believe that there is an immediate danger to the
physical health or safety of the child and that
there is no time to obtain a temporary restraining
order or attachment under Section 17.02 of this
code.
p. 2052
Honorable Patrick J. Ridley - Page 2 (Mw-560)
(b) When a child is taken into possession
under Subdivision (3) or (4) of Subsection (a) of
this section, the person taking the child into
possession shall, without unnecessary delay, cause
to be filed a suit affecting the parent-child
relationship and request the court to cause
hearing to be held by no later than the first
working day after the child is taken into
possession.
(c) The court in which the suit affecting the
parent-child relationship has been filed under
Subsection (b) of this section shall hold a
hearing on or before the first working day after
the child is taken into possession.... If the
court is unavailable for a hearing on the first
working day, then, and only in that event, the
hearing shall be held no later than the first
working day after the court becomes available,
provided that the hearing is held no later than
the third working day after the child is taken
into possession.... If the hearing established by
this subsection is not held within the time limits
required, the child shall be returned to the
parent, managing conservator, possessory
conservator, guardian, caretaker, or custodian who
is presently entitled to possession of the child.
You advise that it is not uncommon -- especially in rural
counties -- for there to be only one district judge in a county. This
creates a problem when a child is taken from his home on an emergency
basis pursuant to section 17.03 (a)(3) or (a)(4), but the judge in the
county in which the required suit is filed is absent and no alternate
judge is available to hold a hearing within the time limit prescribed
in section 17.03(c). If a hearing is not timely held, the child must
be returned to the person entrusted with his care; for obvious
reasons, this may be detrimental to the child. You state that this
problem could be rectified if the district judge of an adjoining
county could hold a hearing in that county and enter an appropriate
order.
Article V, section 11 of the Texas Constitution provides, inter
alla:
And the District Judges may exchange districts,
or hold courts for each other when they may deem
it expedient, and shall do so when required by
law.
p. 2053
,. .
Honorable Patrick J. Ridley - Page 3 (MW-560)
Article 1916, V.T.C.S., provides that:
A judge of the district court may hold court
for or with any other district judge; and the
judges of such courts may exchange districts
whenever they deem it expedient.
Texas courts have construed these provisions very broadly. In
Floyd v. State, 488 S.W.2d 830 (Tex. Grim. App. 1972), for example,
the court stated as follows:
The expression 'whenever they deem it
expedient,' as utilized in both constitutional and
statutory provisions, confers on district judges
broad discretionary powers to exchange benches, or
hold court for each other, which is reviewable
only if an abuse of discretion has occurred.
Although better practice would require one, the
exchange may be accomplished without the necessity
of a formal order or entry on the record of the
reasons for such exchange.
488 S.W.2d at 832. Ex parte Lowery, 518 S.W.2d 897 (Tex. Civ. App. -
Beaumont 1975, no writ) states the rule in this manner:
district judges may exchange benches and hold
court for each other.... Further, we concede that
such an exchange may be effected upon the judges'
own initiative and that the making and entry of a
formal order is not required nor does the reason
for the exchange need be shown in the minutes.
518 S.W.2d at 901. Accord, w, Pendleton v. State, 434 S.W.2d 694
(Tex. Grim. App. 1968); Randel v. State, 219 S.W.2d 689 (TM. Crim.
APP. 1949); Baldwin v. Leonard, 110 S.W.2d 1160 (Tex. Cl". App. -
Eastland 1937, writ dism'd).
A section 17.03 suit must be filed in a court with jurisdiction
to hear suits affecting the parent-child relationship in the county in
which the child is found. Family Code §17.05(a). Under article 1919,
V.T.C.S., the judge of a district which embraces two or more counties,
including the one in which the child is found, could conduct the
required proceeding in any county in that judicial district. See
Hendricks v. Curry, 401 S.W.Zd 796 (Ten. 1966). Otherwise, a district
judge could not conduct the proceeding in a county other than the one
in which the suit is filed. If the judge of the county in which the
suit is filed is unavailable, however, we believe the foregoing
authorities establish that a district judge from another county could
hear the suit in the county in which the suit is filed, provided the
p. 2054
Honorable Patrick .I.Ridley - Page 4 (MW-560)
judges have agreed to exchange benches or hold court for each other.
It appears the proper course would be for the judges in a particular
locale to enter into an agreement covering this situation.
SUMMARY
The district judge of a county other than the
county in which a suit under section 17.03 of the
Texas Family Code is filed may hold a hearing in
the county where filed and enter an appropriate
order, provided the judges of the respective
counties have agreed to exchange benches.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
James Allison
Jon Bible
Rick Gilpin
Jim Moellinger
Bruce Youngblood
p. 2055