March 31, 1987
Honorable Mike Driscoll Opinion No. JM-662
Harris County Attorney
1001 Preston, Suite 634 Re: Authority of Harris County
Houston, Texas 77002 to establish a special "detention
court"
Dear Mr. Driscoll:
Your inquiry presents the following question:
Whether the presiding judge of the Harris
County Criminal Courts at Law may appoint a
special judge or magistrate pursuant to section
75.403 of the Government Code?
Acts 1983, 68th Leg., cli.676, 51. at 4243; V.T.C.S. art. 1934d.
A brief accompanying your request furnishes the following
pertinent background information:
In November 1986 the Harris County Criminal
Court at Law Judges instituted a detention hearing
process for Class A and B misdemeanor defendants
detained in the Earris County Jail. These hearings
were instituted in response to a Federal lawsuit
filed by the ombudsman for the plaintiffs in the
Harris County Jail lawsuit. See -Alberti V. Heard,
406 P.Supp. 649 (S.D. Tex. 1975).
. . . .
Under the provisions of section 75.403(e) of
the Government Code, the Harris County Criminal
Court at Law Judges have appointed a special judge
to conduct these hearings.
. . . .
The hearing officer conducts the hearings in
the Harris County Jail, in a specially designated
courtroom. The hearings commence each weeknight
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at 8:00 p.m. and are held until midnight; on
weekends the hearings commence at IO:00 a.m. until
5:oo p.m. The hearings are open to the public.
When the hearings are conducted during non-
business hours and on weekends, all fourteen of
the presiding judges are absent from their
respective courtroomd. The hearing officer is
sitting for each of the fourteen judges,
performing the duties of a magistrate. . . .
In addition to section 75.403 the author of the brief cites
articles 30.03, 30.04 and 30.05 of the Texas Code of Criminal
Procedure as authority for the appointment of the special judges.
Section 75.403 of the Government Code provides that "the judges
of the courts in Harris County that have the same criminal juris-
diction as county courts with criminal jurisdiction may select from
among themselves a presiding judge." The manner of selection of the
presiding judge and the duties of such positions are delineated.
Insofar as is pertinent to your questions, subsection (e) of section
75.403 provides:
If a judge is absent or for any reason unable
to preside, the presiding judge may appoint a
special judge to serve as presiding judge. The
qualifications, duties, and powers of a special
judge are the same as for the regular judge. The
provisions of Articles 30.04, 30.05, and 30.06,
Code of Criminal Procedure, 1965. relating to the
oath, compensation, and record of appointment of
certain special judges apply to the appointment of
a special judge under this subsection.
Article 30.03 of the Code of Criminal Procedure addresses the
matter of the selection of a "special judge" when the judge of a
county court or county court at law is disqualified, absent or
disabled. Article 30.03 provides:
Section 1. When the judge of the county court
or county court at law, or of any county criminal
court, is disqualified in any criminal case
pending in the court of which he is judge, the
parties may by consent agree upon a special judge
to try such case. If they fail to agree upon a
special judge to try such case, on or before the
third day of the term at which such case may be
called for trial, the practicing attorneys of the
court present may elect from among their number a
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special judge who shall try the case. The
election of the special judge shall be conducted
in accordance with the provisions of Article 1887,
et seq., V.A.C.S.
Sec. 2. In the event a county judge or the
regular judge of a county court at law created in
a county is absent, or is for any cause disabled
from presiding, a special judge, who is an
attorney, may be appointed by the commissioners
court of the county.
Sec. 3. The special judge so appointed must
possess those qualifications required of the
regular judge of the court and, when appointed
shall serve for the period of time designated by
the order of appointment but in no event beyond
that period of time the regular judge is absent or
disabled.
Article 1887 referred to in section 1 of article 30.03, now
section 24.005 of the Government Code, provides the procedure to be
utilized in the selection of a "special judge" by the practicing
lawyers of the court when the judge of a district court fails or
refuses to hold court.
Article 30.04 of the Code of Criminal Procedure provides that the
special judges shall take the oath of office required by the Texas
Constitution. Article 30.05 sets forth the entries to be made by the
clerk "when a special judge is agreed upon by the parties or elected
as herein provided."
While a copy of the order of appointment does not accompany your
request, the brief in support of the appointment reflects that the
hearings conducted by the special judge "accomplished four objec-
tives":
(1) Determine probable cause for further deten-
tion;
(2) Administer the Statutory Warning under
Article 15.17. V.A.C.C.P.;
(3) Set bail according to the order of the
presiding judges of the various courts:
(4) Grant pre-trial release personal bonds where
appropriate.
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Honorable Mike Driscoll - Page 4 (JM-662)
Section 75.403 expressly provides that the "powers of a special
judge are the same as for the regular judge." We are also of the
opinion that a "special judge" serving pursuant to article 30.03
possesses the same authority as the regular judge of that court "for
the period of time designated by the order." Thus, the power of a
special judge serving. under either section 75.403 of the Government
Code or article 30.03 of the Code of Criminal Procedure would be
governed by the provisions therein and any expansion or limitation of
the special judge's authority in the order of appointment would be
invalid.
Turning to the pivotal issue of whether there is authority for
the appointment of a night and weekend special judge to represent all
of the fourteen judges in a specially designated courtroom at the
county jail, we look first to article V, section 1, of the Texas
Constitution. It designates the courts in which judicial power is
vested and provides that "[tlhe legislature may establish such other
courts as it may deem necessary and prescribe the jurisdiction and
organization thereof. . . ." Authority for the appointment of the
special judge in question must be derived from the legislature. The
rationale underlying the appointment of the judge in question appears
to be that the fourteen regular judges are absent from their
courtrooms during the periods such judge is authorized to serve under
the terms of the order of appointment. Under section 75.403(e)
absence of the judge is a basis for appointment by the presiding judge
of a special judge. Likewise, article 30.03, section 2. provides that
absence of a judge is reason for appointment of a special judge by the
commissioners court of the county.
Neither your request nor the brief reveals the length of the
appointment. Prom the tenor of both it would appear that it is not
for a temporary absence of a judge. The brief reflects that it is
for such times as the fourteen regular judges are absent from their
courtrooms at night and ou the weekends.
It is our opinion that the effect of the order of appointment
amounts to an attempt to create a new court. Section 75.403 (as well
as article 30.03) does not authorize the "presiding judge" or the
"Harris County Criminal Court at Law Judges" to take such action.
Section 75.403 (as well as article 30.03) authorizes the appointment
of a special judge for an existing court. It does not provide for the
appointment of a special judge to represent all of the Earris County
Criminal judges at a special courtroom in the jail at night and on
weekends. Moreover, any appointment made pursuant to section 75.403
(or article 30.03) vests the special judge with the power of the
absent judges for the period of the appointment. It is our opinion
that an appointment made pursuant to section 75.403 (as well as
article 30.03) can not limit or expand the authority of the special
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Honorable Mike Driscoll - Page 5 (JM-622)
judge uor can it restrict his authority to act to nights and weekends
during the period of the appointment.
SUMMARY
It is our opinion that section 75.403(e) of
the Government Code authorizes the presiding judge
(named by the judges of the courts in Harris
County that have the same criminal jurisdiction as
county courts) to appoint a special judge for a
judge in an existing court who is absent or for
any reason unable to preside. It does not provide
for the appointment of a night and weekend special
judge to represent all fourteen of the judges (who
are absent from their courtrooms at such times) in
a specially designated courtroom in the Harris
County Jail. Our research does not reveal any
statutory authority for the appointment of a
special judge to perform the functions outlined in
your inquiry.
Jg$/J&&
Attorney General of Texas
JACK HIGHTOWER
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
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