Untitled Texas Attorney General Opinion ( 1974 )

THE ATTORNEY GENERAL
OF -IYExAs
AUSTIN. TRXAII 76711
January 18, 1974
The Honorable Tom Hanna Opinion No. H- 218
Jefferson County
Criminal District Attorney Re: Whether a respondent
P. 0. Box 2553 in a Uniform Reciprocal
Beaumont, Texas 77701 Enforcement of Support
Act is entitled to a jury
Dear Mr. Hanna: trial
Your office has asked the opinion of this office as to whether a
respondent in a Uniform Reciprocal Enforcement of Support Act proceeding
is entitled to a jury trial upon proper request.
Article 2328b-4, V. T. C. S., the Uniform Reciprocal Enforcement of
Support Act, was enacted by the 59th Legislature in 1965. It derived from
Articles 2328b-1 to 2328b-3, which were similar in purpose and effect,
and most cases interpreting the rights of a respondent under the old statute
are applicable to the new one.
The stated purposes of the Act are set forth in $1 which provides:
“The purposes of this Act are to improve and extend
by reciprocal legislation the enforcement of duties
of support and to make uniform the law with respect
thereto. ”
To achieve these purposes, the Act provides procedures whereby residents
of other states can enforce support orders against Texas residents and vice
versa.
The usual manner of enforcing such orders is by contempt proceedings
[Cf. Guercia v. Guercia, 241 S.W.2d 297 (Tex. 1951); Freeland v. Freeland,
313 S.W.2d 943 (Tex. Civ.App., Dallas, 1958, no writ)] and § 25 of the Act
provides:
p. 1016
The Honorable Tom Hanna, page 2 (H-218)
II
. the court of this State when acting as the
. .
responding state has the power to subject the
defendant to such terms and conditions as the
court may deem proper to assure compliance with
its orders and in particular; . . . .
“(c) To punish the defendant who shall violate any
order of the court to the same extent as is provided
by Law for cantempt of the court in any other suit
or proceeding cognizable by the court. ”
Section 37 of the Act further provides:
“The support order as confirmed shall have the
same effect and may be etiorced as if originally
entered in the court of this State. The procedures
for the enforcement thereof shall be as in civil
cas’es, ‘including the power to punish the defendant
for contenipt as in the case of other orders for
payment of temporary alimony, maintenance or
support entered in this State. ”
Article 1, 5 15, of the Texas Constitution provides that “the right of
trial by jury shall remain inviolate” and Article 5, $ LO, of the Texas Con-
stitution provides that “in the trial of all causes in the District Courts, the
plaintiff or defendant shall, upon applicatidn made in open court, have the
right of trial by jury, . . . . ”
However, it has long been recognized that juries are not available
to respondents in contempt proceedings. In Ex Parte Howell, 488 S.W.
2d 123 (Tex. Grim. 1972), the court summed up a consistent history of
decisions by statis, “It is axiomatic that courts have the power to punish
for contempt without the intervention of a jury. ” 488 S.W. 2d at p. 127.
In Parte Winfree,,
Ex 263 S.W.2d 154 (Tex. 1953), the Supreme
Court applied this axiom to a child support case and denied habeas corpus
to a parent adjudged in contempt without a jury. See also Ex Par,te Allison,
90 S.W. 492 (Tex. Crim. 1905); Ex Parte Garner, 246 S.W. 371 (Tex. Grim.
1922); and Crow v. State, 24 Tex. 12 (1859).
p. 1017
i ;
The Honorable Tom Hanna, page 3 (H-218)
It is therefore our opinion that, although a respondent is entitled
to general due process in connection with a contempt proceeding brought
under Article 2328b-4, V. T. C. S. [see Ex Parte Hosken, 480 S.W.2d
18 (Tex. Civ. App., Beaumont, 1972, no writ hist.) and cases cited there-
inl, such a respondent is not entitled to a jury.
SUMMARY
A resppndent is not entitled to a jury in
connection with contempt proceedings brought
under Article 232813-4, V. T. C. S., the Uniform
Reciprocal Enforcement of Support Act.
Yours very truly,
Attaney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1018