Untitled Texas Attorney General Opinion ( 1952 )

Hon. Austin F. Anderson
Criminal Dlstrfct Attorney
San Antonio j, Texas Opinion No, V-1409
Ret Responsibility of the
Criminal District At-
torney to represent the
plaintiff in a child
support proceeding un-
der House Bill 192, Acts
52nd Leg,.,, RISI 1951”
(Articles 2328b-1 to
Dear Mr. Anderson: 2328b-3, VcC,S~)
Your requeet for an opinion presents for
determination the following questions:
1, Is the Criminal Metrict Attorney
of Bexar County required to represent the
plaintiff fn a child support case filed in
a district court of Bexar County under,
House Bill 192, Acts 52nd Leg,, R,Ss 1951,
ch. 377, ps 643?
2, It not, what procedure is the dis-
trict court to follow in obtaining repre-
sentation for the plaintiff In this State?
Your faetwl situation relates to’s petl-
tlon, forwarded to Rexar County from the State of
Ohio, wherein support and maintenance is sought pur-
suant to Sections 8007-1 to 8007-lp,, Qeneral Code of
Ohio, referred to as the Reciprocal Act for Support
of Dependent 8 l The State of Texas has a slmllar
law known as the Uniform Reciprocal Rnforcement of
Support Act, which was enacted into law by House
R,,S, 1951, ch, 377, pw 643
'ih':t"stg32!~4;t rz3%:5, V,C>S,), Section 12 there-
of provides 88 follows:
“When a court ‘of this State, acting as
a responding state, receives from the court
of an initiating state the aforesaid copies,
Hon. Austin F. Anderson, page 2 (V-1409)
it shall (1) docket the cause, (2) notify
the District or County Attorney, (3) set
a time and place for a hearing, and (4)
take such action as is necessary In accord-
ance with the laws of this State to obtain
jurisdiction.”
In the brief accompanying your opinion re-
quest, you have pointed out that this statute does
not expressly state that the district or county at-
torney, upon notification, shall represent the plain-
tiff in a civil proceeding In the district court of
this State, but you reach the conclusion that the duty
of representation Is necessarily Implied. Upon consid-
ering the background and provisions of the statute,
we agreir with your conclusion.
The Texas statute, as well as the Ohio law
Is patterned after the Uniform Reciprocal Enforcemen t
of Support Act adopted by the National Conference of
Commissioners on Uniform State Laws at its 1950 meet-
ing. The avallability of the remedies afforded by the
statute depends upon the enactment of a similar recip-
rocal statute In each of the interested states. The
only change which the Legislature of Texas made in the
text of the act as drafted by the National Conference
(except for the omission of a.setitIon on uniformity of
interpretation) was the exclusion of alimony for a
former wife from the duty of support. Section 12 of
the act drafted by the National Conference reads as
follows:
“When the court of this state, acting
as a responding state, receives from the
court of an initiating state the aforesaid
copies, It shall (1) docket the cause, (2)
notify the here insert the name of the of-
ficial charged with the duty of carrying
on the proceeding&, (3) set a time and
place for a hearing, and (4) take such ac-
tion as is necessary In accordance with the
laws of this state to obtain jurisdiction.V’
(Handbook of National Conference of Commis-
sioners on Uniform State Laws, 1950, p. 175.1
It Is clear from this provision that the legis-
lature in each state enacting the Uniform Law was to
designate an official to be “charged with the duty of
Hon. Austin F. Anderson, page 3 (V-1409)
carrying on the proceedings.’ The Texas Legisla-
ture-has designated the “District or County Attor-
ney”; and we are of the view that the legislative
intent was to charge the official the duty of
representing the obligee in the Te s court.. If
the Legislature has the power to impose this duty
upon the district or county attorney, it would fol-
low that your first question should be answered in
the affirmative.
A proceeding filed under Part III of the
Reciprocal’ Enforcement of Support Act is, we think,
clearly a civil proceeding and except with respect
to claims for reimbursemen& under Section 8, it 1s
an action between private individuals in which
neither the ixiitiating state nor the responding
state is a party.
The Constitution of this State imposes
‘upon the county or district attorney the duty to
represent the State in all cases in the district
and inferior courts. Tex, Const., Art. V, Sec. 21,
It Is established that this constitutional duty can-
not be abridged by the Legislature. The question
confronting us, however, is whether the Legislature
may enlarge the duties of these officers beyond those
expressIg imposed by the Constitution. We have been
unable to find any case directly in point; but in
Zucaline Medicine Co. v. Standard Inv. Co., 25 S.W.
d 259 [Tex, Civ. App. 1930 f ) the court
held that the Leaislature c&~rdr~&``e’&on members
of the iudiciary~duties other than- those- imposed by
;itution. Also see Jones v. Alexander, 122
hY,
we are of the opinion that the Constitution does not
prohibit the imposition of additional duties upon
the district or oounty attorney.
The enforcement of a duty to provide sup-
port has long been recognized as a matter of concern
to the public as well as to the individual directly
benefited thereby. The inte,rest of the public la
based not only on the criminal aspect of the failure
to support but also on the attendant consequences to
society and the likelihood of the dependent’s becom-
ing a charge upon public charity. An example of the
recognition of the public nature of the duty Is found
in Section 13-A of Article 2338-1, V.C,S., which gives
Hon. Austin F. Anderson, page 4 (V-1409)
the, juvenile court the-authority to enter a judg-
ment against a parent SOT tne support of a delin-
quent child. Indeed, the imposition upon the dis-
trict or county attorney of duties incidentally
involving the enforcement of a civil right of sup-
port is not novel in this State. Our statutes,
while not authorizing the institution of an itie-
pendant civil suit for maintenance and support,
permit the enforcement of the civil obligation as
an adjunct to a criminal prosecution instituted
by the district or county attorney. Art. 604, v.
P.C.; F,x D t Tavlor 137 Tex. 505 155 S.W.2d 358
(19411. Sgci the enhorcement of tie duty of sup-
port is a matter of public as well as private con-
cern, and since the officers of this State will be
performing services only in instances in which re-
ciprocal services will be accorded to this State,
we are unable to say that the expenditure of public
funds in compensating these officers and their
assistants for the services would not be for a pub-
lic purpose.
In view of the foregoing, we are of the
opinion that Section 12 of House Bill 192 validly
imposes upon the Criminal District Attorney of
Bexar County the duty of representing the obligee
in the proceeding to which you have referred.
Since we have answered your first ques-
tion in the affirmative it becomes unnecessary to
answer your second ques c ion or to discuss the pro-
priety of the court’s proceeding with the case with-
out representation for the obligee.
SUMMARY
The Criminal. District Attorney of
Bexar’ County is required~ to represent
the obligee In a support, proceeding in-
stituted in another state and filed in
Ron. Austin F, Ando?so``, page5 W-1409)
a district court o? Bexar County under
Section 12 of the Uniform Reciprocal
Enforcement of Support Act (H.B. 192,
Acts 52nd Leg. R,S. 1951 ch. 377, p:
643; Arts, 2328b-1 to 2328b-3, V.C.S.).
Yours very truly,
APPROVED: PRICE DAARIEL
Attorney General
so C. Davis, Jr,
County Affairs Wvision
E, Jacobson
Reviewing ASSistant
Charles D, Mathews
First Assistant 2? SW
7 p Wall
Mary
BW:MRW:mh Assistants