Untitled Texas Attorney General Opinion ( 1952 )

Hon.. Sam W. Davis Opinion No. V-1484
District i.tt,ornsy
Civil courts Building Re: Several questions, relat;
Houston 2, Texas ing to the duties of the
district clerk and the
district attorney under
the uniforrii Reciprocal
E;nforcerflent of Support
Dear Sir: Act.
Your request for ‘an opinion of this office re-
,lates to the official duties of the district clerk and
district attorney under the Uniform Reci rocal Rnforoe-
ment of Support Act (Arts. 2328b-1 to 23sab3, v.c.s.1.
The questions prese@ted by you for deter-a-
tion are:
“1. Did the Legislature intend that the
district clerks of their courts should perform
the same ,duties in these cases orlglnatlng
out of the State without requiring deposits or
security for costs?
n2. Did ths Legislature, by the UIB oi “’
the phrase ‘notify the district or county attor- ~, :
neyl intend that It be the mandatory duty of
these officials to prosecute or try these aci
tSons when received from the Initiating statee?U
The Uniform Reciprocal Enfbrcement of Su port
Act was enacted into ,Iaw by House Bl12 ,192,Aots 5is nd
Leg., R.S. 1951 ch. 77 p. 643,,and is codified as 4r-
tic1es 2328b-1 to 232iIb-j, V.C.S. Its purpose, ‘as qtated
in Section I,, is to Improve and ‘extend by reolproati~ leg&.
lslatlon the enforcement of duties of support and%&. ,&eke
uniform the law with respect thereto* .
There Is no provision & &e ‘Unifoim Act ielat-
b Ing to the payment of c’osts, nor Is ,there a~prpvls~on’ex-
preosly authorizing the district clerk td’require a de-
posit or other security for aosts.
.. hon.. Sam IJo Davis, page 2 (v&+@+)
.
Article 3927, V.C.S.,Tprovides that the dis-
trict clerk shall receive certain fees for services
performed ltin civil cases ,I’ and various other statutes
set out fees and expenses which are taxable as costs
in civil cases. The general provisions with respect
to requiring the plaintiff In a civil action to give
security for costs are contained ti the following rules
of the Texas Bulds of, Civil Procedure:
“Rule 142. Security for Cost .--The
qlerk may require from the plaintiff secur-
ity for costs before issuing any process,
but shall file the petition and enter the
same on the dooket. No attorney or other
officer of the court shall be surety in
any cause pending In the court, except un-
der special leave of court.~~
“Rule 143. Rule for Costs.--Theplain-
tiff may be ruled to give security for costs
at any time before final judgment, upon mo-
tion of the defendant or any officer of the
court interested In the costs, accruing in
suoh suit* arid+ ST &ch,rnle; be entered
aga,inst the pLaintiff and he fall to comply
therewith on or before twenty (20) days af-.
ter knowledge or notice that such rule has
been entered, the suit shall be dismissed.”
“Rtie 146, Deposit for Costs.--In lieu
of a bond for costs, the pafty required to
give ,the same may deposit with the clerk of
court or the justice of the peace such ‘sum
as ,the. court or justice from time to time
may designate ‘as sufficient to pay the ac-
crued costs. (I
Under‘Rule 145, the clerk may not require se-
curity where the party furnishes satisfactory proof of
his inability to give security. Also, certain classes
o.f parties are specifically exempted by statute from,
giving security. See Arts. 118d (Sec. 6), 279a, 2072,
2072a, 788o-126a, v.c.s.. Even though a party is exempted
from giving security, costs are nevertheless assessable
and the exemption does not relieve the party from the le-
gal obli ation to pay costs. Roby Hawthorne, 84 S.W.
23. 1108 ifTeX. Olvr App. 1935, errorvdism.)E
Hon. Sam W. ,DaViS, page 3 (V-1484)
From the foregoing we think It may be stated
as a’.general rule that the,pialntiff in a civil action
may be required to give security for costs unless he Is
expressly exempted from this requirement, and costs are
assessable in all civil actions unless an applicable
s~tatute ,expressly provides otherwise.
InAtt’y Gen. Op. V-1409 (1952) this office
i&that a proceeding under Article 2328b-3 is a civil
action. Proceedings In the district courts of Texas
when acting as the responding State are lnstltuted by
the filing of a certified copy of a petitlo:, the party
ipstituting the proceeding is called the pl In ifg and
the .rrty against whom it is instituted is called &he
e da& . This terminology indicates to us that the
‘E~islature considered actions of this kind to be of the
same general nature as other civil actions.
Since the Uniform Reciprocal Enforcement of
Support Act does not contain a provision excepting these
civil actions from the general rules relating to costs
and security therefor, we agree with your conclusion that
the district clerk may require the plaintiff to give se-
curity for costs in a suit filed under this act.
In your second question you ask whether the
Legislature intended that it be the,duty of the district
or county attorney to try these actions when Texas is the
responding State. Section 12 of House Bill 192, which
comes under Part III entitled “Civil tinforcement,” reads:
“When a court of this State, acting as a
responding state, ,recelves from the court of
an Initiating state the aforesaid copies, It
shall (1) docket the cause, (2) notify the
District or County Attorney, ( ) set a time
and place for a hearing, and ( 2 ) take such ac-
tion as is necessary in accordance with the
laws of this State to obtain jurlsdiotlon.l’
This office held In Att’y Gen. Op. V-1409, SUDra,
after reviewing the history of the statute, th::lt the Leg-
islature intended to chnrge the district or county attorney
with the duty of representing the obllgee in the Texas
::.. . court . You have suggested in the brief accompanying your
request that such a construction would render this PrOVi-
slon of the statute unconstitutional, for two reasons: (1)
Ii would be violative of Sections 50, 51 and 52 of Article
III Constitution of Texas, which prohibit the granting of
public mdney to an individual; (2) this subject matter is
YOn. Sam ‘& .)avis, page 4 (V-1484)
not embraced In the title of the act and the provision
is therefore void under Section 35 oh Article III of
the Constitution.
With reference to th, first constitution,il ob-
jection, th3 argument is apranced thar the Constltl,rtion
prohibits public officials -:50 Teceive their ~a)- r’r,:*:-
the State or any ;olitil.:al sn~~‘.ivi;io~ the:sof, *:;k:.enact-
ing in their official cspacities, fro:1 ,,lving :~-‘r ;TY.~
aid to an inr!ividual. But these constitutional i:~o~*i-
sions Go not ::ro!litit the ex;;eUiture of public money for
a public 2uiipose within tile Statels ,:overnmental :io-::ers,
even though a class of in:LiviLvAs n;ly i:erive sqme hene-
fit therefrom. JP2usi.n:: .kuthority of Cit.v oi
Big* n t - 8 143 S.W.2d ‘/9 (1940)
v. i&i’r” 1$;~‘~.‘:~?~~$2 [Tex. Civ. Agp. 1938
& nls ob jectlon ?,:as ai:lswered in C,;,inion’V-1409,
wherein it ;‘ds stated:
“Since the enforcement of the dut,; of
support is a matter of public AS well as
private concern, and since the officers of
this State will be porformin,g services only
In Instances in which reciprocal services
will be accorded to this State, -,!e are un-
able to say th:lt the expenditure of public
funds in coq)ensating these offkers and
their assistants for the services would not
be for a public purpose.”
Section 35 of Article III, Constitution of Texas,
reads:
“No bill, (except general ai>propriation
bills, clhich may embrace the various subjects
and accounts, for and on account of which
moneys are appropriated) shall contain more
than one subject , ,rhich shall be expressed
In its title. ijut if any subject shall be
embraced In 371.act which’ shall not be ex-
pressed in the tltie, such act shall be void
‘only as to so much thereof, as shall not be
so expressed.”
In considering whether the title of a legislative
act gives sufficient notice of its conten-ts to comply with
this constitutional provision, several well-established
rules must be kept in mind. In the first place, the provi-
sion should be construed illiberally, rather than to embar-
rass legislation by a construction whose strictness fs
Hon. Sam W. Davis, page 5 (V-1484)
unnecessary to the accomplishme:t of the beneficial pur-
urpose of the provision is
“to prevent embracing in an act having one ostensible
object, provisions having no relevancy to that object.”
Hamilton v. St. Louis. S.S. & T. By. 115 Tex. 455, ;283
-~-
475 ( 26) In the rS,nr?%idateA Underdriteu case
&i’aourt %d:’
“It is we!.1 recognized that the purposes
of this provision are. to advise the Legisla-
ture and the people of the nature of .each par-
ticular bill, so as to prevent the Insertion
of obnoxious clauses which. otherwise might be
Ingrafted on it and become the law, and to
obviate legislation through the combination,,
upon a composite bill, oi’ the votes of the pro-
poneirts of different measures included in It,
some of which would not pass upon their merits
if separately considered.*’
Another rule,: equaiiy well eetabli’shed, is that
the title need not recite all the details of the act.
6, 102 S .w .2d 202 (1937).
case stated the reason for
guage :
nBut it would be useless and impractioa-
ble’for the title to express all of the provl-
sions @f a partlculer act and the details of
eadi provisitin,. PO*, in such a~:‘casei, this in-
troduotory batter would amount. to ,k mere repe-
tition of the legislation itself, atid would
answer no purpose of abbreviated notice. . . .A
264 S’.k. a612 (Tex. Clv. App. 1924) the
is s&&ion of the Constitution ‘lmer:ly
‘requires the subject of the proposed act to be expreasea
in the title or caption; the details and machinery for ef-
fectually aiding the object of the bill need not be ex-
pressed. I’ It has also been held that the caption is not
deficient because it does not contain a separate statement
of purpose for each subdivision within the body of the act.
V. VQn, 207 23.W.368 (Tex. CiV, App. 1918).
The Constitution provides for the offices of dis-
trict, attorney and county attorney In Article V, entltl.ed
.
..
Eon. San Y. Davis, page 6 (V-1484)
“Judicial Department .*I These officials are officers of
the corilt, and the authority to establish courts and to
prescribe the jurisdiction thereof, which is conferred
on the Legislature by Section 1 of Article 0 of the Con-
stitution, includes the authority to establish a dis-
trict attornershlp as an adjunct to the organization and
functionin of a
as22 ii!!?&2
&%.%;, @? A
In VIBW of the close relationship between the
functions performed by these officers and the functioning
of the courts themselves, we are of the opinion that the
portion of the caption of House Bill 192 which reads,
“prescribing the duties of the court when this is respond-
ing state,” is sufficient to embrace the duties imposed
upon the district and county attorneys. Further, we think
the language, “providing the manner in which the duties
of support are enforceable I1 also gives suffioient notice
of this provision in the statute. As noted above, the
madhinery for effectually aiding the, object of the bill
need not be fully detailed in the caption.
Your brief also raises a question as to whether
this provision in House Bill 192 is in conflict with Rule
308-A, Texas Rules of Civil Procedure, as amended effec-
Uve Karch 1, 1952, and, if so, whether the statute is
thereby rendered intiffective. By the amendment, which w.~
adopted subsequent to the enactment of House Bill 192,
Rule 308;~ authorizes the court to appoint a member of the
bar of his court to represent the cLaimant in a contempt
proceeding for enforcement of a support order. The sug-
gested oonflict would arise from this variance in obtain-
ing representation for the obligee,
House Bill 192 makes provision for the enforo,e-
ment of support orders of the courts of o e State through
the aourts of a different State. Rule 308 -A, on the other
hena, prescribes a procedure for enforcement by a court of
this State, throt!gh contempt prooeedings, of its own orders
for periodical ayments for child support* The rule, ei-
ther as origina Bly adopted or as amende,d, did not Introduce
a new’remedy; it merely simplified the proaadure for en-
forcing a remedy which already existed.
In wcia v. 239 SrW.2d 169 (Tsxd c&v.
App. 1951, error’ref. n. 1 s.W.2d 297), the Court
Hon. Sam W. Davis, page 7 (v-1484)
of Civil Appeals.intimated that the procedure set out in
Rule 308-A, as well as the remedy, was available to a
claimant under a foreign judgment. In reviewing the opin-
ion of the Court of Civil Appeals, the Supreme Court held
that the remedy of contempt was available under rules ,of
comity and Public policyo It did not hold that Rule 308-
A provided the exclusive procedure for enforcing the for-
eign judgment through contempt proceedings, nor did it
hold that the procedure under Rule 308-A’was applicable
at all to a claimant under a foreign judgment.
Even if It were defixiitely settled that the pro-
cedure under Rule 308-A could be employed by an oblige8
’ under a support order from another State, we would be ln-
clined to the view that the procedure prescribed in House
Bill 192 is complementary to rather than in conflict with
Rule 308-A. In the present state of the law, it Is our
opinion that these enactments operate in different spheres:
the rule in the sphere of domestic judgments and the stat-
ute in the sphere of foreign judgments. We therefore hold
that they are not in conflict. In view of this holding,
it becomes unnecessary to consider what effect a confl,ict
would have on the statute ..,,
The district clerk is authorized to re-
quire security for costs in suits filed under
the Uniform Realprocal Bnforcement of Support
Act wherein Texas is the responding State.
Arts. 2328b4 to 2328b-3, V.C.S.
The district attorney or county attorney
is required to represent the obligee, in a
support proceeding filed in a district court
of Texas under Art* 2328b-3 wherein Texas is
the responding State.
APPROVRD: Yours very truly,
J, C. Davis, Jr0 PRICE DARIRL
County Affairs Division Attorney General
E. Jacobson
Reviewing Assistant
’ Charles D. Mathews
First Assist&t
Assistants
BW:MKWawb
_-