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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Dallas, TX. 75201-4709 

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San Antonio, TX. 762052797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

Honorable Patrick J. Ridley 

Bell County Attorney 

P. 0. Box 474 

Belton, Texas 76513 

Opinion No. ?lW-560 

Re: Power of district judge in 

one county to hold proceedings 

under section 17.03 of the 

Family Code in another county 

Dear Mr. Ridley: 

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 

which the suit is filed is unavailable. Section 17.03 provides in 

relevant part as follows: 

(a) An authorized representative of the Texas 

Department of Human Resources, a law enforcement 

officer, or a juvenile probation officer may take 

possession of a child without a court order under 

the following conditions and 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 17.02 of this code; or 

(4) upon information furnished by another 

which has been corroborated by personal knowledge 

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 

p. 2055