Untitled Texas Attorney General Opinion ( 1974 )

THE ATTORNEY GENERAL
OF TEKAS
AUNTIN. - 16711
July 10, 1974
The Honorable Norman Manning Opinion No. H- 343
County Attorney
Williamson County Re: Whether a district court
Georgetown, Texas 78626 may designate the county
attorney as registry of the
court to receive child rupport
paymentr.
Dear Mr. Manning:
You have requested our opinion an to whether a district court
may designate anyone other than the district clerk am registry of the court
to receive child support payments and, if so, whether the county attorney
may be so designated. You alro ask whether a county attorney has any
duty to act under the Uniform Reciprocal Enforcement of Support Act, 5 0 21.01
et meq.,Family Code, V.T. C.S.
In a judicial district or county not having a domestic relation0
court, the district court generally exercises jurisdiction in cages of
divorce and in other cases which may affect the parent-child relation-
ship. Articles 1906, 1907, V. T. C.S., and see §ll.Ol, Family Code,
V. T. C. S. Section 14.05 of the Family Code provides that in such cases
the court may order either or both parents to make periodic payments or
a lump-sum payment, or both, for the support of the child until he is 18
years of age “in the manner and to the persons specified by the court in
the decree. I’ This provision confers broad discretion upon the district
court in determining to whom child support payments will be made, and
under it the court ,may appoint someone other than the district clerk to
;;;;;-*-‘; such payments.
You ask whether the county attorney could be appointed in that
capacity to receive child support payments. The Texas Constitution in
p. 1601
’
The Honorable Norman Manning page 2 (H-343)
Art. 5. s 21 provides that where a county is included in a district in which
there is a district attorney the respective duties of the district attorney
and county attorney are to be regulated. by the Legislature. The courtn
have taken the position that by virtue of this provision the powers of a
county attorney are strictly limited and thata county attorney has no
authority to perform an act in respect to which no duty has been made to
devolve upon him by the Legislature. Duncan v. State, 67 S.W. 903 (Tex.
Civ. App. 1902, no writ): see also A.B. C. Rendering, Inc. v. State, 342
S.W.2d 345 (Tex. Civ. App., Houston, 1961, no writ) and Wexler v. State,
241 S.W. 231 (Tex. Civ. App., Galveston, 1922, no writ).
The primary duty assigned to county attorneys by the Legislature
is to represent the state in all criminal proceedings under examination
in courts in their respective counties below the grade of district court.
Art. 2.02, V. T. C. C. P. As a rerult the county attorney ordinarily is
obligated to represent the state in a prosecution for the class A mirdemean-
or of criminal nonsupport. See 0 25.05, V. T. P. C.
But to our knowledge there is no statute or other law which gives
the county attorney the duty to receive child support payments ordered by
a court under 314.05 of the Family Code. Since the legislature has never
given the county attorney the duty to receive such payments, it is our
opinion that he is not authorized to do so and that a district court may
not confer this rerponsibility upon him.
Your third and final question is whether a county attorney has any
duty to act under the Uniform Reciprocal Enforcement of Support Act,
§ 0 21.01 et seq., Family Code, V. T. C. S. In Attorney General Opinion
C-636 (1966) this office held that when there was also a district attorney
in his county a county attorney had no duty to act as prosecuting attorney
under the Uniform Reciprocal Enforcement of Support Act as then written.
But in 1973 the 63rd Legislature enacted a new version of that Act which
changed the definition of “prosecuting attorney” upon which that opinion
was founded. Under the current version of the Act “prosecuting attorney”
is defined in 5 21.03 (15) as “the criminal district attorney or county attorney,
or the district attorney where there is no criminal district attorney or
county attorney. ” Thus, when there is no criminal district attorney, as in
p, 1602
The Honorable Norman Manning page 3 -(H-343)
Williamson County, the county attorney now bar the duty to act as “proa-
ecuting attorney” in proceedings brought under the Uniform Reciprocal
Enforcement of Support Act. See Seer. 21.26 and 21.33, Family Code,
V. T. C. S.
SUMMARY
While 0 14.05 of the Family Code confera broad
discretion upon the district court in determining to
whom child support payments will be made, the court
may not require the county attorney in that capacity
to receive such payments. In proceedings under the
Uniform Reciprocal Enforcement of Support Act the
county attorney of Williamson County har the duty to
act as “prosecuting attorney. ”
Very t?y&
JOHN L. HILL
Attorney General of Texas
f
DAVID M. KENDALL. Chairman
Opinion Committee
p. 1603