Untitled Texas Attorney General Opinion ( 1966 )

Hon. Don Nugetit Opinion No. c-634
Dlstrlct``Attornel
109th Judi&el' Diatrlct~: Re: Questions relating to the
P:O. BOX 1076 ~.' ~clvll and criminal enforce-
Kermit, Texas ment of support orders, and
to Article 2328b-4, Vernon's
Civil Statutes, Acts 59th
Legislature, 1965, Chi 679,
'page 1561, ,the new Texas
'Uniform Reciprocal Enforce-
war Mr. Nug&t’:.’,~:.I
I:.’ ment of Subport'Act.
You:-hatiti.tiei@etited
our oplnlon as to the answers to
questions'-rel%ting,to;,fne.
civll~'iand~criminalenforcement of
support order&'andj.to.Artlcle 2328b-4, ‘Vernon'.s'Civil Sta-
tutes, Acts. 59th Legislature, 1965, Ch. 679, page~l561, the
new Texas Unlf+r@'Reciprocal &$orcemen$ of Support Act.
,~, .,
Your"'firiet'j..q~estlon'may
be stated as follows:
to,subjeot the defendant to~.suchterms ,and
'ccdn'd~tiona~sas'~he~
cotit may deem proper to
with its ‘order@a$ in
~aiih.i``~cc&i@f.afio'e
‘,.
~.
~.partloul'arr~ Y. ~'.' 8
.". . ),'-
-3078-
. ,
Hon. Don Nugent. page 2 (C-634)
vlola;~c;n, Tyz$;h t”; ‘``;~d;=&$-;;ll
Y
extent as is provided by law for contempt of
the court In any other suit or proceeding
cognizable by the court." (Emphasis supplikd)
The above quoted portion of Article 2328b-4 reveals
that the Legislature did not contemplate that a second petl-
tlon from the 'lnltiatlng state would be necessary In order
for the Texas court ,to enforce Its order by contempt pro-
ceedings.
Your remaining questions are set out In the body of
your request as Sbllows:
"II. The new law suggested perhaps
that before a criminal complaint is fll.ed
and extradition a.ppliedfor that there
should have been resort to the civil por-
tion of thlB act at least ninety days be-
fore the criminal action is initiated.
"1. My question is should we as a
matttirof form resort to the civil action
first, then wait ninety days before filing
the criminal complaint and asking for extra-
dition?
My next question 1s FS, In fact,
‘l.2.
we make application for extradition wl.thout
the prior civil action being Inaugurated
and the extradition papers are approved and
signed by the Governor, Is It safe to as-
sume that the ninety day compliance will not
be required?
There is no ninety day period mentioned In Article
2328b-4 in the connection which you Buggest. However,
Section 5 of Article 2328b-4 does allow the Governor to
seek extradition to enforce support pa ents due Texas resl-
denta, and Section 6 of Article 2328b-r provides as follows:
"sec. 6. (a) Before making the demand
on the Governoi.of any other state for the
surrender of a person charged In this State
with the crime of falling to provide for the
support of any person, the Governotiof thls
State may require any prosecuting attorney
of this State to satisfy him that at least
-3079-
Ron. Don Nugent, page 3 (c-634)
sixty (60) days prior thereto the obligee
brought an action Sdr'the support under this
Act, or that the bringing of an action would
be of no avail.
'(b) When under this or a substantially
similar Act, a~demand Is made upon the Governor
of this State by the~Governor of another state
for the surrender of a person charged in the
other 8tat.ewl.ththe crime of falling to bro-
vlde support, the Governor may call upon any
prosecuting attorney to Investigate or assist
in Investigating the demand, and to report to
him whether any action for support has been
brought under this Act or would be effective.
"(c) IS any action for the support would
be effective and no action has been brought, the
Governor may delay honoring the demand for a
reasonable time to permit prosecution of an
action for support.
"(d) If an actionsfor support has been
brought and the person demanded has prevailed
in that action, the Governor may decline to
honor the demand.
"(e) If an action for support has been
brought and pursuant thereto the person deman-
ded Is subject to a support order, the Governor
may decline to honor the demand 80 longas the
person demanded,ls ~complylng with the support
order."
Criminal and extradition proceedings proved highly
unsatisfactory as a method of enforcing child support against
a defendant who crossed state lines; hence the enactment of
the uniform reciprocal enforcement of support legislation by
the states. It was primarily for this reason that the National
Conference of Commissioners on Uniform State Laws and the
American Bar Association recommended to the states the adoption
of said Act. Commissioners' Prefatory Note to the Uniform
Reciprocal Enforcement of Su port Act, Handbook of Commissioners
:on Uniform State Laws, (19507, page 171. The purpose of
Article 232tlb-4and analogous legislation adopted by other
states, as shown by the Commissioner's Prefatory Note to the
Model Act, supra, was not to punish a defendant, but to force
him to meet his legal obligations to support his dependants.
Jailing the Defendant or extraditing him does not directly
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Hon. Don Nugent, page 4~ (C-634)
serve the purpose of supporting the dependants or of relieving
the states from a burden on their welfare rolls. Therefore,
the criminal sections of Article 23?8b-4'were Intended only to
be used If the bringing of a o1vll action would be of no avail,
or after civil action has felled to produce results.
It Is our opinion that, In most Instances, It would be
advisable to bring a civll'actlon before crlmlnal extradition
proceedings are brought - not as a matter of form, but because
by a civil proceeding the purpose of Article 2328b-4 18 more
directly served.
The Governor In his discretion need not reaulre prior
resort to the civil courts as a condition precedent to his
honoring the demand for extradition. However, If a civil action
Is not brought you may not safely assume'that extradition will
be honored, since the Governor of a responding state, acting
under legislative enactments similar to Article 2328b-4
may require an attempt to be made tc secure relief through a
civil action before he will honor the demand for extradition.
SUMMARY
1. Having entered an order under Article
2328b-4, V.C.S., aga1nst.a looal resi-
dent to enforce a support order of an
out-of-state court, the T!eXaS Court
may.enSorce that order - through con-
tempt proceedings if necessary - on its
own motion and without a new complaint
being filed by the initiating state.
2. Smooth processing of an action upon
extradition papers filed under Artlole
2328b-4, V.C.S.,,can best be obtained
if a bona fide attempt to collect back
payments by civil process under the
olvll sections of Article 2328b-4 has
proceeded the filing of extradition
papers by a period of at least sixty
days.
Very truly yours,
WAGGCNFR CARR
Attorney General of Texas
-3081-
Ron. Bon Nugent, page 5 (C-634)
B
orney General
LJC:om
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Sam Kelley
Douglas Chllton
JohnBanks
Charles Bardwell
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright
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