Untitled Texas Attorney General Opinion ( 1961 )

AKlsTaN 111.TExaca WILL wILsoN Ax-rORNEY GE:NElG%E November 28, 1961 Opinion No. WW-1201 Mr. W. Gail Walley Re: Questions arising Acting Criminal District Attorney under the Uniform Jefferson County Reciprocal Enforce- Beaumont, Texas ment.of.SupportAct (Art. 2328b, Vernon's Dear Mr. Walley: Civil Statutes) You have requested an opinion from this office re- garding the following questions. The questions and our opinions are set out below. "(1) Is the District Attorney comnelledby statute to act as petitioner'srepresentative in any case where petitioner resides in his district;but where circumstancesdo not warrant the filing of a criminal charge of non-support? "(2) Is the District Attorney compelled b statute to act as petitioner'srepresentat-3ve in any case where petitionerresides in his district, but where petitioner IS able to retain private counsel to file the reciprocal support action?" This office is unable to find any language in Article 2328b of Vernon's Civil Statutes which compels the District Attorney to represent the petitionerwhen the petitioner resides in his district. Where circumstancesdo not warrant the filing of a criminal charge under Section.11 of the Uniform Reciprocal Enforcementof Support Act, the action is civil in nature and the District Attorney is not compelled to represent the petitioner. (See Attorney General's Opinion v-1409). "(3) Section 8 of the Act provides 'Where the action is broughtby or through the State or an agency thereof, there shall be no filing fee. It has been brought to the attention of this office that at least one District Attorney in this state refuses to file a reciprocal action without prepayment of filing fee,regardlessof the circumstancesof the petitioner,on the grounds that the District Clerk has the right, and exercises the right, to challengeany and all Mr. w. G. Walley, page 2 (WW-1201) pauper's oaths. Does the District Clerk have the right to demand or challengea pauper's oath in any reciprocal case filed through the office of the District Attorney?" Section 8 of Article 2328b-3 is as follows: Vhenever the State or a political subdivision thereof has furnished support to an obligee it shall have the same right to invoke the pro- visions hereof as the obligee to whom\the support was furnished for the purpose of secur- ing reimbursementof expendituresso made. "When the Petition is filed in the District Court of this State, it shall be accompanied by a filing fee or a pauper's affidavit which the Court may in its discretion accept in. lieu of the filing fee; provided, however, that the Court of this State, acting either as an initiating or responding State, may in its discretion, direct that any part of or all of the fees or costs incurred in this State shall be paid by the county. Where the action is brought by or through the State or an agency thereof, there ,shallbe~no filing fees;" ;s2amended Acts 1953, 53rd Leg., p.907, ch. 374, . It is the opinion of this office in the event the action is brought by or through the State or an agency thereof that there shall be no filing fee, as provided in Section 8, Article 2328b. If an action is filed by an individual,it is within the discretion of the judge of the court to,,acceptthe pauper's affidavit in lieu of the filing fee. The court may, in its discretion,direct that any part of or all the fees or costs incurred in this State shall be paid by the county. “(4) Does the Criminal~DistrictCourt of Jefferson County, Texas, have jurisdictionin cases filed under the provisions of the Uniform Reciprocal Enforcementof Support Act?" Article 52-160a confers jurisdictionupon the Criminal District Court of Jefferson County in civil suits, causes, and matters involving: "(1) Divorce, 88 provided in Chapter 4, Title 75, of the Revised Civil Statutes of Texas of 1925, and any amendments thereof, heretofore or hereafter made thereto; . . Mr. W. G. Walley, page 3, (WW-1201) "(2) Dependent and delinquent children, as provided in Title 43, Revised Civil Statutes of Texas of 1925, and any amend- ments thereof, heretofore or hereafter made thereto;" The above mentioned Title 43 and 75 are the pro- vision8 covering all matters of divorce and dependent and delinquent children. It la the opinion of this office that 52-16Oa gives jurisdictionto the Criminal District Court of Jefferson County to act on cases filed under the pro- visions of the Uniform Reciprocal Enforcementand Support Act. Your letter further states: "As a result of the decisiou in Freeland vs. Freeland, 313.SW2d 943 (Tex. Civ.App.1958,no writ history), certain questions have arisen as to the jurisdictionof the district court and the duties of the district attorney as petitioner'srepresentativewhere petitioner no longer resides in the district where the divorce and support award were granted. These questions are as follows: "(5) Must a petitioner return to the county where divorce and support award were granted to file for support under the uniform support act? Or may petitioner file in any district court where such petitioner and children for .nhom support was awarded currently reside? "(6) If the answer to question number five (5) is that only the district court where divorbe and support were awarded has jurisdiction~as petitioning court, is the District Attorney in the district where the divorce ,andsupport were awarded comnelled& statute to represent a petitionerwho is not a resident of his district in the following circumstances: "(a) Where facts justify the filing of a criminal non-support charge in the county where the divorce was granted? l*(b) Where facts do not justify the filing of a criminal non-support charge in the county where the divorce was granted? "(c) Where the non-residentpetitioner is able to employ private counsel to file the support action?" . Mr. W. G. Walley, page 4, (WW-1201) In answer to your question number.5 we refer you. to Attorney General's Opinion No. WW-784. This opinion, which we reaffirm, holds that the petitionermust return to the court where divorce and support award were.granted to file for support under the Uniform Support Act. The court which granted the original divorce and support award has the sole jurisdictionto enforce its decrees, Therefore, a criminal charge under the reciprocal support act must be filed in that court; However, a criminal charge undoer Articles 602, 602-A, and 603, V.P.C. must be filed in the county where the abandonment occurred or in the county where the wife or child resided forsix months next preceed- ing the filing of the indictmentor information. In reference to your question number 6 Article 25 Code of Criminal Procedure, this reads as follows: "Each district attorney shall represent the State in all criminal cases in the district courts of his district, except in cases where he has been, before his election, em loyed adversely. When any.criminalprocee%ing is had before an examining court in his-district or before a judge upon habeas corpus, and he is not notified of the samsand :'IS'~'at the time within.the county where such proceeding- is had, he shall represent the State therein, unless prevented by other official duties." The duty of the District Attorney to file a criminal non-support eharge is the same as his duty to file any other criminal charge called to his attention. We answer your questions number 6(b) and 6(c) in the negative because such proceedingsare ~1~11 in nature. SUMMARY A district attorney is not compelled by statute to act as Petitioner'srepresentativein a civil action under the Uniform Reciprocal Enforcement of Support Act. The District Judge and not the District Clerk has the discretion to accept a pauper's affidavit in lieu of a filing,fee,but the District Clerk may challenge the oath.``The Criminal District Court of Jefferson County has jurisdictionover ,casesfiled under the pro- visions of the Uniform Reciprocal Enforcementof Support Act. A Petitionermust return to the County where his divorce was granted to file for support under the Uniform Reciprocal Enforcement Mr. W. G. Walley, page 5, (w-1201) of Support Act. The duty of the District Attorney to file a criminal non-support charge under the Uniform Reciprocal Enforcementof Support Act is the same as his duty to file any other criminal charge called to his attention. Yours very truly, WILL WILSON BJ. T.$uLuL- Walker Assistant Attorney General JTW:bjh APPROVED: OPINION COMMITTEE: W. V. Geppert, Chairman Gordon Cass Jack Price Norman Suares Riley Eugene Fletcher REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.