# The Attorney General of Texas

December 31, 1982 MARK WHITE Attorney General

Supreme Court Building P. 0. Box 12546 Austin. TX. 76711. 2546 5121475-2501 Telex 9101674-1367 Telecopier 512/4750266

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An EqualOpportunity/ Affirmative Action Employer Honorable PatrickJ. Ridley Bell CountyAttorney P. 0. Box 474 Belton,Texas 76513 OpinionNo. ?lW-560
Re: Power of district judge in one county to hold proceedings under section 17.03 of the FamilyCode in another county
DearMr. Ridley:
You askwhether a district court in a county adjoining the county inwhich a suitunder section 17.03 of the Texas Family Code is filed may hold the section 17.03 hearing when the judge of the court in which the suit is filed is unavailable. Section 17.03 provides in relevantpart as follows:

(a) An authorized representativeof the Texas Department of Human Resources, a law enforcement officer, or a juvenile probation officermay take possession of a childwithout a court order under the followingconditionsand no others:

. .. . (3) upon personal knowledge of facts which 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 17.02of this code; or (4) upon information furnished by another which has been corroboratedby personal knowledge of facts and all of which taken together would lead a person of ordinaryprudence 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 obtaina temporaryrestraining order or attachment under Section 17.02 of this code.

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(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 unnecessarydelay, 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 intopossession.... If the hearing establishedby this subsectionis not heldwithin the time limits required, the child shall be returned to the parent, managing conservator, possessory conservator,guardian,caretaker,or custodianwho ispresentlyentitled to possessionof the child.
You advise that it is not uncommon -- especially in rural counties-- for there tobe only one district judge in a county. This createsa problemwhen a child is taken from his home on an emergency basispursuant to section 17.03 (a)(3)or (a)(4),but the judge in the county inwhich 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 timelyheld, the childmust 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 Constitutionprovides, inter alla: And theDistrict Judgesmay exchangedistricts,

or hold courts for each otherwhen they may deem it expedient, and shall do so when required by law.

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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 constitutionaland statutory provisions, confers on district judges broad discretionarypowers to exchangebenches, or hold court for each other, which is reviewable only if an abuse of discretion has occurred. Although better practice would require one, the exchangemay be accomplishedwithout thenecessity 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,nowrit) states the rule in thismanner:

district judges may exchange benches and hold court for each other.... Further,we concede that such an exchangemay be effectedupon the judges' own initiativeand that themaking and entry of a formal order is not required nor does the reason for the exchangeneed be shown in theminutes. 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 courtwith jurisdiction tohear suitsaffecting theparent-childrelationshipin the county in which the child is found. FamilyCode §17.05(a). Under article 1919, V.T.C.S., the judge of a districtwhich embraces two ormore counties, including the one in which the child is found, could conduct the required proceeding in any county in that judicial district. See Hendricksv. Curry, 401 S.W.Zd 796 (Ten. 1966). Otherwise,a district judge could not conduct the proceeding in a county other than the one inwhich the suit is filed. If the judge of the county inwhich 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 inwhich the suit is filed,provided the

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judges have agreed to exchange benches or hold court for each other. It appears the proper coursewould be for the judges in a particular locale to enter into an agreementcovering 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 filedmay hold a hearing in the county where filed and enter an appropriate order, provided the judges of the respective countieshave agreed to exchangebenches.

MARK WHITE AttorneyGeneral of Texas JOHN W. FAINTER,JR. FirstAssistantAttorneyGeneral
RICHARD E. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby Jon Bible AssistantAttorneyGeneral
APPROVED: OPINION COMMITTEE
SusanL. Garrison,Chairman JamesAllison Jon Bible Rick Gilpin JimMoellinger BruceYoungblood

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