    The Attorney               General of Texas
                       December     21,   1978




Honorable James Warren Smith, Jr.                Opinion No. II- 13 0 1
Frio County Attorney
P. 0. Box V                                      Re: Whether a magistrate who
Pearsall, Texas 78061                            conducts a detention hearing in
                                                 accordance  with section 51.04,
                                                 Family Code, must be a licensed
                                                 attorney.

Dear Mr. Smith:

      You have asked three questions relating to whether or not it is
mandatory that a magistrate who conducts a detention hearing in accordance
with section 51.04, Family Code, V.T.C.S., be a licensed attorney.

      Your first two questions, which will be answered in conjunction     with one
another, are stated as follows:

           (1) May ‘any magistrate’ (including one who is not a
                  licensed attorney) preside over a Sec. 54.01 hear-
                  ing (Detention     Hearing) in accordance     with
                  V.T.C.A., Family Code, Sec. 51.04(f)?

           (2)    Would the definition [of V.A.C.P. art. 2.09, C.C.P.
                  defining magistrates to include the judges of the
                  Supreme Court, the judges of the Court of
                  Criminal Appeals, the judges of the District
                  Court, and the county judges] mandate the con.
                  elusion that the word ‘magistrate’ as understood
                  and interpreted in the Code of Criminal Procedure
                  have the same meaning and interpretation      as in
                  the Family Code? Would the county judge (who is
                  not a licensed attorney) be considered ‘any magis-
                  trate’ as that term is used and understood in
                  V.T.C.A., Family Code, Section 54.04(f)?

       Under Title 3 of the Family Code, the juvenile court has exclusive
original jurisdiction over proceedings relating to delinquent children and
children who are in need of supervision.   Family Code SS 51.01, 51.04. -See
Attorney General Opinion H-ll66 (1978).




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.   .




        Honorable James Warren Smith, Jr.          -    Page 2     (H-1301)



              Section 51.04 of the Family Code provides in part:

                      (cl In a county not having a juvenile board, the judges of
                    the district, criminal district, domestic relations, juvenile,
                    and county courts and county courts at law shall designate
                    one or more of their courts as the juvenile court. . . .

        Pursuant to this provision, the district       court has been designated the juvenile court
        for Frio County.

              Section 51.04(f) states:

                    If the judge of the juvenile court or any alternate judge
                    named under Subsection (b) or (cl of this section is not in the
                    county or is otherwise unavailable, a          magistrate  may
                    conduct the detention hearing provided for in section 54.01
                    of this code.

        (Emphasis added).

              Article 2.09 of the Code of Criminal Procedure defines magistrate to include
        the county judges. A similar provision has long been part of Texas law. Tex. Code
        Crim. Proc. art. 42 (1879); see Acts 1858, 7th Leg., ch. 51, at llO1. In our opinion, a
        county judge is a magistrate%!thin   section 51.04(f) of the Family Code. See also R.
        0. Dawson, Family Code Symposium, Title 3: Introduction and Commentary, 5
        Texas Tech. L. Rev. 599, 52lf1974).

              In the case Ex parte Ross, 522 S.W.2d 214 (Tex. Crim. App. 1975), it was held
        that the trial of a criminal case before a nonattorney judge was not in violation of
        the due process clause, and”[tlhere is no constitutional or statutory requirement in
        Texas that a county judge be an attorney.” rd, at 220. The only qualification is
        that the judge be well informed in the law of the state. Tex. Const. art. 5, g 15.

              Your third question is:

                    Since the county does not have a juvenile board and since
                    the district court is the designated court but is often
                    unavailable and out of the county, is it mandatory that the
                    district judge designate an alternate court, the judge of
                    which is a licensed attorney, to preside over Sec. 54.01
                    hearings?

              Section 51.04(d) of the Family Code provides:

                     If the w     of a court designated in Subsection (b) or (c) of
                     this section is not an attorney licensed in this state, there




                                             p.        5124
Honorable James Warren Smith, Jr.     -        Page 3   (H-1301)



           shall also be designated an alternate court, the judge of
           which is an attorney licensed in this state.  The alternate
           juvenile court shall rule on motions and hold hearings as
           provided in Section 51.18 of this chapter.

(Emphasis added). This provision is applicable when the judge of the designated
court is not an attorney.      As previously noted, the district court has been
designated pursuant to subsection (c). Since the district judge is required by law to
be an attorney,   see Texas Constitution article 5, section 7, section 51.04(d) is
inapplicable in your case. The juvenile court may, however, appoint an attorney as
referee to conduct detention hearings and certain other juvenile proceedings. See -
Family Code SS 51.04(g), 54.01(l), 54.10.

                                  SUMMARY
           A magistrate        who conducts     a detention   hearing  in
           accordance with section 51.04, Family Code, need not be a
           licensed attorney.       Section 51.04(d) of the Family Code
           requires the designation of an alternate court when the
           judge of the juvenile court designated pursuant to subsection
           (b) or (c) is not an attorney.




                                                Attorney General of Texas

APPROVED:




DAVID M. KENDALL, First Assistant


      i
Z. XCCERT HEATH, Chairman
Opinion Committee

jsn




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