Untitled Texas Attorney General Opinion ( 1962 )

-- This OP;C~~ September 12, 1962 I Affirms Opinion #--M&y~.~j i Mr. Dan Brazil Opinion No. W-1437 County Attorney Angelina County Re: Whether the provisions Lufkin, Texas of Article 604 of the Penal Code can be applied to the offense of wife, or 0 r and&%&"~no%?fe Dear Mr. Brazil: Co&y Court. You have asked this office an opinion on the following question: "Can the provisions of Article 604 of the Penal Code be applied to the crime of~wife, or of child, or of wife and child desertion, in County Court? In other words, would the County Judge have the authority to apply the provisions of such article to such a criminal case pending in the county Court?" Article 602 of the Penal Code provides as follows: 'IAnyhusband who shall wilfully desert, neglect or refuse to provide for the support and maintenance of his wife who may be in necessitous circumstances, or any parent who shall wilfully desert, neglect or refuse to provide for the support and maintenance of his or her child or children under eighteen years of age, shall be guilty of a misdemeanor, and upon con- viction, shall be punished by confinement in the County Jail for not more than two years." As amended Acts 1959, 56th Leg., p. 504, ch.222, 3 1. Article 604 provides: "The Court during its term, or Judge thereof in vacation after the filing of complaint against or after the return of indictment of any person for the crime of wife, or of child, or of wife and child desertion shall upon application of the complainant give notice to the defendant of such application and Mr. Dan Brazil, page 2 (WW-1437) may upon hearing thereof enter such temporary orders as may seem just, providing for the support of deserted wives and children or both, pendente lite, and may punish for the violation or refusal to obey such order as for contempt." Acts 1913, p. 188; Acts 1931, 42nd Leg., p. 58, ch. 38, g 1. This office has held that the County Court does not have jurisdiction to enter an order for support, pendente lite, after the filing of a complaint against the defendant for the crime of child desertion when the complainant and defendant are divorced in a Texas District Court and that Court has entered an order for support, and that any order entered by a County Court under such circumstances are not valid. Attorney General's Opinion No. WW-1023, March 8, 1961, a copy of which is attached hereto. We hereby affirm that holding. In those cases where no support order has been entered by a District Court pursuant to a divorce proceeding, Article 604 applies. We therefore answer your question in the affirmative. The County Judge does have authority under Article 604 to enter the order therein provided, except where jurisdiction to enter such an order has been acquired by the District Court because of the entry of a support order in a divorce proceeding. Insofar as Attorney General's Opinion No. O-238 is inconsistent with this holding, we overrule that opinion. SUMMARY Under Article 604, Vernon's Penal Code, the County Judge has authority to enter temporary orders providing for the support of deserted wives and children, or both, pendente lite, except where jurisdiction to enter such orders has, because of a support order in a divorce decree, been acquired by the District Court. Very truly yours, NVS :sm Mr. Dan Brazil, page 3 (WW-1437) APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman L. P. Lollar Joe Osborn James Broadhurst REVIEWED FOR THE ATTORNEX GENERAL By Leonard Passmore