The Attorney General of Texas
December 21, 1978
Honorable James Warren Smith, Jr. Opinion No. II- 13 0 1
Frio County Attorney
P. 0. Box V Re: Whether a magistrate who
Pearsall, Texas 78061 conducts a detention hearing in
accordance with section 51.04,
Family Code, must be a licensed
attorney.
Dear Mr. Smith:
You have asked three questions relating to whether or not it is
mandatory that a magistrate who conducts a detention hearing in accordance
with section 51.04, Family Code, V.T.C.S., be a licensed attorney.
Your first two questions, which will be answered in conjunction with one
another, are stated as follows:
(1) May ‘any magistrate’ (including one who is not a
licensed attorney) preside over a Sec. 54.01 hear-
ing (Detention Hearing) in accordance with
V.T.C.A., Family Code, Sec. 51.04(f)?
(2) Would the definition [of V.A.C.P. art. 2.09, C.C.P.
defining magistrates to include the judges of the
Supreme Court, the judges of the Court of
Criminal Appeals, the judges of the District
Court, and the county judges] mandate the con.
elusion that the word ‘magistrate’ as understood
and interpreted in the Code of Criminal Procedure
have the same meaning and interpretation as in
the Family Code? Would the county judge (who is
not a licensed attorney) be considered ‘any magis-
trate’ as that term is used and understood in
V.T.C.A., Family Code, Section 54.04(f)?
Under Title 3 of the Family Code, the juvenile court has exclusive
original jurisdiction over proceedings relating to delinquent children and
children who are in need of supervision. Family Code SS 51.01, 51.04. -See
Attorney General Opinion H-ll66 (1978).
p. 5123
. .
Honorable James Warren Smith, Jr. - Page 2 (H-1301)
Section 51.04 of the Family Code provides in part:
(cl In a county not having a juvenile board, the judges of
the district, criminal district, domestic relations, juvenile,
and county courts and county courts at law shall designate
one or more of their courts as the juvenile court. . . .
Pursuant to this provision, the district court has been designated the juvenile court
for Frio County.
Section 51.04(f) states:
If the judge of the juvenile court or any alternate judge
named under Subsection (b) or (cl of this section is not in the
county or is otherwise unavailable, a magistrate may
conduct the detention hearing provided for in section 54.01
of this code.
(Emphasis added).
Article 2.09 of the Code of Criminal Procedure defines magistrate to include
the county judges. A similar provision has long been part of Texas law. Tex. Code
Crim. Proc. art. 42 (1879); see Acts 1858, 7th Leg., ch. 51, at llO1. In our opinion, a
county judge is a magistrate%!thin section 51.04(f) of the Family Code. See also R.
0. Dawson, Family Code Symposium, Title 3: Introduction and Commentary, 5
Texas Tech. L. Rev. 599, 52lf1974).
In the case Ex parte Ross, 522 S.W.2d 214 (Tex. Crim. App. 1975), it was held
that the trial of a criminal case before a nonattorney judge was not in violation of
the due process clause, and”[tlhere is no constitutional or statutory requirement in
Texas that a county judge be an attorney.” rd, at 220. The only qualification is
that the judge be well informed in the law of the state. Tex. Const. art. 5, g 15.
Your third question is:
Since the county does not have a juvenile board and since
the district court is the designated court but is often
unavailable and out of the county, is it mandatory that the
district judge designate an alternate court, the judge of
which is a licensed attorney, to preside over Sec. 54.01
hearings?
Section 51.04(d) of the Family Code provides:
If the w of a court designated in Subsection (b) or (c) of
this section is not an attorney licensed in this state, there
p. 5124
Honorable James Warren Smith, Jr. - Page 3 (H-1301)
shall also be designated an alternate court, the judge of
which is an attorney licensed in this state. The alternate
juvenile court shall rule on motions and hold hearings as
provided in Section 51.18 of this chapter.
(Emphasis added). This provision is applicable when the judge of the designated
court is not an attorney. As previously noted, the district court has been
designated pursuant to subsection (c). Since the district judge is required by law to
be an attorney, see Texas Constitution article 5, section 7, section 51.04(d) is
inapplicable in your case. The juvenile court may, however, appoint an attorney as
referee to conduct detention hearings and certain other juvenile proceedings. See -
Family Code SS 51.04(g), 54.01(l), 54.10.
SUMMARY
A magistrate who conducts a detention hearing in
accordance with section 51.04, Family Code, need not be a
licensed attorney. Section 51.04(d) of the Family Code
requires the designation of an alternate court when the
judge of the juvenile court designated pursuant to subsection
(b) or (c) is not an attorney.
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
i
Z. XCCERT HEATH, Chairman
Opinion Committee
jsn
p. 5125