Untitled Texas Attorney General Opinion ( 1974 )

May 13, 1974
The Honorable Franklin L. Smith Opinion No. H- 309
County Attorney
Nueces County Courthouse Re: The authority of the judge
- Corpus Christi, Texas 78401 of the Court of Domestic Rela-
tions of Nueces County.
Dear Mr. Smith:
You have asked our opinion on several questions relating to the
duthority of the Court of Domestic Relations for Nueces County. Your
specific questions are:
“1. May the Judge of the Domestic Relations
Court of Nueces County act as “Presiding Judge, I’
thereby exercising administrative jurisdiction
over the judges of the numbered district courts
for Nueces County?
“2. Under the provisions of Article 200b, may
the Judge of Domestic Relations Court of Nueces
County act as “Presiding Judge” in causes pending
in numbered district courts and, as such,
“(a) Assign to other courts of hearing:
(1) Matters for final heating.
(2) Preliminary motions.
(3) Pre-trial hearings.
‘l(b) Set causes for trial.
“(c) Grant motions for continuance.
,pq 1393
The Honorable Franklin L. Smith page 2 (H-300)
“(d) Enter any other order not dispositive of
any issue germane and requisite for the
entry of a final judgment in any cause.
If so, what such orders may be entered
(such as pleas of privilege and motions
in limine) ?
“(e) Preside over any hearing on any motion
on a cause pending in a numbered district
court a ruling of which is not dispositive of
any ultimate issue in the cause. (Example:
Taking of deposition before a judge under
RCP 215a).
‘l(f) Issue temporary restraining orders returnable
to the court in which the cause is originally
filed.
“(g) Qualify jurors for cases set for trial in
numbered district courts, both civil and
criminal.
“3. Does the jurisdiction provision of Section 3,
Article 2.338-10 pertaining to the Domestic Relation
Court of Nueces County reading, “all cases involving
justiciable controversies and differences between
spouses, or between parents, or between them, or
one of them, and their minor children, or between,
any of these and third persons, corporations, trustees
or other legal entities, which are now, or may here-
after be, within the jurisdiction of the District or County
Courts”
“(a) Extend jurisdiction to all causes involved in
suits by or against:
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.
The Honorable Franklin L. Smith page 3 (H-300)
(1) Married persons.
(2) Parent and child.
(3) Any one of these.
“(b) Extend jurisdiction to probate matters,
or appeals thereon, where pirties include
two or more immediate members of one family.
“4. Does the Domestic Relations Court of Nueces
County have jurisdiction of tax suits broughtby the State
or any Of its political subdivisions?
“5. May the judge of the Domestic Relations Court
of Nueces County preside over the general jury panel
for service as jurors in all of the County and District
Courts in Nueces County as provided under Article 2101,
Texas Revised Civil Statutes? ”
The jurisdiction of the Court of Domestic Relations for Nueces
County is set out in Vernon’s Texas Civil Statutes, Art, 2338-10, § 3.
The Sixtieth Legislature amended section 3 twice, and both are printed
in the Vernon’s edition.
Whether the two amendm@ 8: are treated as complementary and
read together or as irreconcilable with the second amendment repealing
the first, we believe that for the purpose of responding to your questions
the latter amendment (Acts 1967, ch. 565, p. 1242, § 7) is an accurate
and complete statement of the court’s jurisdiction. That amendment
provides:
“Section 3. The Court of Domestic Relations for
Nueces County shall have the jurisdiction concurrent
with the District Courts in Nueces County of all cases
involving adoptions, removal of disability of minority
and converture, wife and child desertion, delinquent,
neglected or dependent child proceedings, Reciprocal
p. 1395
The Honorable Franklin L. Smith page 4 (H-300)
Support Act and all jurisdiction, powers and
authority now or hereafter placed in the District
or County Courts under the juvenile and child
welfare laws of this State; and of all divorce and
marriage annulment cases, including the adjustment
of property rights and custody and support of minor
children involved therein, alimony pending final
hearing and any and every other matter incident to
divorce or annulment proceedings as well as inde-
pendent actions involving child custody or support
of minors, change of name of persons; and all
other cases involving justiciable controversies and
differences between spouses, or between parents, or
between them, or one of them, and their minor children,
or between any of these and third persons, corporations,
trustees or other legal entities, which are now, or may
hereafter be, within the jurisdiction of the District or
County Courts; all cases in which children are alleged
or charged to be dependent and neglected children or
delinquent children as provided by law, of all suits
for trial of title to land and for the enforcement of liens
thereon, of all suits for trial of the right of property,
and said Court and the Judges thereof shall have power to
issue writs of habeas corpus, mandamus, injunction, and
all writs necessary to enforce their jurisdiction. ”
Your first two questions require consideration of Article 200b,
Vernon’s Texas Civil Statutes, That article applies to certain counties,
including Nueces County, and permits the election of a “presiding judge”
by and from the judges of those courts having any district court jurisdic-
tion. As the judge of the Court of Domestic Relations is the judge of a
court hairing some jurisdiction concurrent with district court jurisdic-
tion, it is our opinion he may serve as presiding judge. If permitted
by local rules he may, as presiding judge:
pe 1396
The Honorable Franklin L. Smith page 5 (H-300)
‘1. . . assign and transfer any case pending in
any of the courts to any other of the courts; he may
direct the manner in which such cases shall be filed
and, docketed; he may assign any case or proceeding
pending in any of the courts to the judge of any other
of the courts; and he may assign the judge of any of the
courts to try any case Ca hear any proceeding pending
in any other of the courts. ”
Vernon’s Texas Civil Statutes, Article 200b, $ 4(a). Under Section 2 of
that Article he may hear and determine matters pending in other courts
having district court jurisdiction in Nueces County. However, the judge
of the Court of Domestic Relations may not act in any case which is not
within the potential jurisdiction of his court. See, Vernon’s Texas Civil
Statutes, Article 200b, § 6.
Your third and fourth questions are directed to the jurisdiction of
the Court of Domestic Relations of Nueces County under Art. 2338-10,
V. T. C. S. Although the domestic relations court is given broad jurisdic-
tion, its jurisdiction is not coextensive with that of the district court.
After including within that court’s jurisdiction various subject
matters over which domestic relations and juvenile courts in Texas
have traditionally exercised jurisdiction, the latest version of the section
conferring jurisdiction upon it continues:
‘1. . and all other cases involving justiciable controversies
and differences between spouses, or between parents, or
between them, or one of them, and their minor children, or
between any of these and third persons, corporations, trustees
or legal entities which are now, or may hereafter be, within
the jurisdiction of the District or County Courta;. . . . ”
p. 1397
.
The Honorable Franklin L. Smith page 6 (H-300)
A close and literal reading of this provision by itself would support
a conclusion that jurisdiction has been conferred upon the Domestic Rela-
tions Court of Nueces County to hear and decide any case within the jurisdic-
tion of either a district or a county court, unless all parties to the contro-
versy whose interests conflict are childless, unmarried adults.
However, identical statutory provisions have been interpreted as
limiting the courts jurisdiction to juvenile and domestic relation matters.
Rader v. Rader, 378 S.W. 2d 371 (Tex. Civ. App. --Dallas 1964, writ
ref’d n. r. e. ), see Pelej v. Winans, 422 S.W. 2d 152 (Tex. 1967). Also
see Grider v. Noonan, 438 S.W. 2d 631 (Tex. Civ. App.:-Corpus Christi,
1969, no writ). Therefore, it is our conclusion that the broad language of
the statute has the effect of conferring only an ancillary jurisdiction to
the domestic relations court where the resolution of disputed matters is
incident to the determination of issues within the court’s primary jurisdic-
tion. Of course, the domestic relations court’s jurisdiction is further
limited to the extent that it may not deprive the county court of probate
jurisdiction assigned by the Constitution. See Elliot v. Elliot, 2,08 S. W.
2d 709 (Tex. Civ. App.--Fort Worth 1948, writ ref’d n. r. e. ).
Your final question concerns the court’% duties under Vernon’s Texas
Civil Statutes, Article 2101, which provides for interchangeable jurors.
Although the general supervision of the program establishing interchangeable
jurors is given to the county’s district judges, there is no such express
limitation on the judge who is assigned to have supervision and control over
the jurypanel. We.beSieve the judge of the Court of Domestic Relations may
act in that capacity.
Therefore, we answer all of your questions in the affirmative with
the cayeat that the Court of Domestic Relations of Nueces County has no
authority under Article 200b, V. T. C. S., to act beyond the jurisdiction
granted it by Article 2338-19 $ 3, V. T. C. S. Likewise, it may not act in
such a manner as to deprive the county courts of its constitutional jurisdic-
tion over probate matters. These two qualifications are particularly relevant
to your third and fourth questions.
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1 -
The Honorable Franklin L. Smith page 7 (H-300)
As each case would depend on its particular facts, it is impossible
to categorically say that a particular class of cases is always within the
jurisdiction of the Court of Domestic Relations of Nueces County.
SUMMARY
The judge of the Court of Domestic Relations
of Nueces County may act as presiding judge under
Article 200b, V. T. C. S., but he gains no authority
to act beyond the jurisdiction granted the court in
Article 2338-10, $ 3, V. T. C. S. That jurisdiction
relates to juvenile and domestic relations matters
and it is not coextensive with the jurisdiction of the
district court.
Very truly your*,
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
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