May 13, 1974 The Honorable Franklin L. Smith County Attorney Nueces County Courthouse

- Corpus Christi, Texas 78401 Opinion No. H- 309 Re: The authority of thejudge of the Court ofDomestic Relations 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 ofthe numbered district courts for Nueces County?

“2. Under the provisions ofArticle 200b, may theJudge of Domestic Relations Court of Nueces County act as “Presiding Judge” in causes pending innumbered district courts and, as such,

“(a) Assign to other courts ofhearing: (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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“(d) Enter any other order not dispositive of any issue germane and requisite for the entry of afinal judgment in any cause. If so, what such orders may be entered (such as pleas ofprivilege and motions inlimine) ?

“(e) Preside over any hearing on any motion on a cause pending inanumbered district court a ruling ofwhich is not dispositive of any ultimate issue inthe cause. (Example: Taking of deposition before ajudge under RCP 215a).

‘l(f) Issue temporary restraining orders returnable to the court inwhich 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 tothe 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 hereafter be, within the jurisdiction ofthe 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 ofthese.

“(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 Ofits political subdivisions?

“5. May thejudge of the Domestic Relations Court of Nueces County preside over the general jury panel for service as jurors inall of the County and District Courts inNueces 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 3twice, and both are printed inthe 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 toyour 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 inNueces 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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Support Act and all jurisdiction, powers and authority now or hereafter placed inthe District or County Courts under thejuvenile and child welfare laws of this State; and of all divorce and marriage annulment cases, including the adjustment ofproperty rights and custody and support ofminor children involved therein, alimony pending final hearing and any and every other matter incident to divorce or annulment proceedings as well as independent actions involving child custody or support ofminors, change of name ofpersons; 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 ofthese 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 inwhich children are alleged or charged tobe dependent and neglected children or delinquent children as provided by law, ofall suits for trial oftitle to land and for the enforcement ofliens thereon, ofall suits for trial ofthe right ofproperty, and said Court and the Judges thereof shall have power to issue writs ofhabeas corpus, mandamus, injunction, and all writs necessary to enforce their jurisdiction. ” Your first two questions require consideration ofArticle 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 ofthose courts having any district court jurisdiction. As the judge of the Court of Domestic Relations is the judge ofa court hairing some jurisdiction concurrent with district court jurisdiction, it is our opinion he may serve as presiding judge. Ifpermitted by local rules he may, as presiding judge:

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‘1.
. .assign and transfer any case pending in any ofthe courts to any other of the courts; he may direct the manner inwhich such cases shall be filed and,docketed; he may assign any case orproceeding pending inany ofthe courts to the judge of any other of the courts; and he may assign thejudge ofany of the courts to try any case Cahear any proceeding pending in any other of the courts. ” Vernon’s Texas Civil Statutes, Article 200b, $4(a). Under Section 2of that Article he may hear and determine matters pending in other courts having district court jurisdiction inNueces County. However, thejudge 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 ofDomestic Relations of Nueces County under Art. 2338-10, V. T. C.S. Although the domestic relations court is given broad jurisdiction, 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 andjuvenile courts in Texas have traditionally exercised jurisdiction, the latest version ofthe 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 ofthem, 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 thejurisdiction ofthe District or County Courta;.
. . .”

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The Honorable Franklin L. Smith page 6 (H-300)

A close and literal reading ofthis provision by itself would support a conclusion that jurisdiction has been conferred upon the Domestic Relations Court of Nueces County to hear and decide any case within thejurisdiction of either a district or acounty court, unless all parties to the controversy whose interests conflict are childless, unmarried adults.

However, identical statutory provisions have been interpreted as limiting the courts jurisdiction tojuvenile 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, nowrit). 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 jurisdiction. Of course, the domestic relations court’s jurisdiction is further limited to the extent that itmay not deprive the county court ofprobate 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 ofthe program establishing interchangeable jurors is given to the county’s district judges, there is no such express limitation onthe judge who is assigned to have supervision and control over the jurypanel. We.beSieve thejudge of the Court of Domestic Relations may act inthat capacity.

Therefore, we answer all ofyour questions inthe 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 itby Article 2338-19 $3, V. T. C. S. Likewise, itmay not act in such amanner as to deprive the county courts of its constitutional jurisdiction over probate matters. These two qualifications are particularly relevant to your third and fourth questions.

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As each case would depend on its particular facts, it is impossible to categorically say that aparticular 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 thejurisdiction granted the court in Article 2338-10, $3, V. T. C.S. That jurisdiction relates tojuvenile 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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