                                                                  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.




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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




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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:




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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;.         . .     . ”




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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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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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