                                         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




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