Untitled Texas Attorney General Opinion ( 1984 )

The Attorney General of Texas
June 21, 1984
JIM MATTOX
Attorney General
Supreme Court Building Honorable Ron Felty Opinion No. JM-176
P. 0. BOX 12546
Austin. TX. 76711. 2546
District Attorney
5121475.2501 Hale and Swisher Counties Re: Procedures for revocation
Telex 9101674-1367 Hale County Courthouse of probation under section
Telecopier 5121475.0266 Plainview, Texas 79072 14.12(a) of the Family Code of
person in contempt of court for
714 Jackson. Suite 700
refusal to make child support
Dallas. TX. 75202.4506 payments
2141742.6944
Dear Mr. Felty:
4624 Alberta Ave., Suite 160
El Paso, TX. 79905.2793
You have requested this office's opinion regarding the procedures
9151533-3464 applicable to the revocation of probation imposed pursuant to section
14.12 of the Texas Family Code. Your inquiry concerns the proper role
of the state in the prosecution of violations of probation under this
~1 Texas, Suite 700 section, and the applicability of sections of the Code of Criminal
Houston, TX. 77002-3111
Procedure to "child support" probation. In particular, you seek
7131223.5666
answers to four questions:
606 Broadway, Suite 312 1. Are violations of section 14.12(a)
Lubbock. TX. 79401.3479 probation to be prosecuted by the state?
6061747.5236
2. If such violations are to be prosecuted by
4309 N. Tenth. Suite S the state, are they to be handled by the district
McAllen, TX. 76501-1665 or county attorney?
5121662.4547
3. Are section 14.12(d) probationers entitled
200 Main Plaza, Suite 400 to court appointed counsel at a revocation if they
San Antonio, TX. 76205.2797 are indigent?
512/2254191
4. Do the bail and notice provisions of
An Equal Opportunity/
article 42.13 of the Code of Criminal Procedure
Affirmative Action Employer apply to a section 14.12(d) probationer?
In the brief accompanying your request, you contend that the
dispositive question is whether contempt as provided in section 14.12
is civil or criminal in nature. You consider the relationship between
sections 14.09 and 14.12 of the Family Code and rule 308-A of the
Texas Rules of Civil Procedure, and conclude that section 14.12 is an
incident of civil contempt. You further conclude that the state is
not responsible for prosecuting violations of section 14.12 probation
p. 773
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Honorable Ron Felty - Page 2 (JM-176)
and that section 14.12 probationers are not entitled to
court-appointed counsel. We disagree with your final conclusion.
We observe at the outset that the procedures you inquire about
are those applicable to the revocation of probation, not to the
enforcement of a contempt order. However, in light of your
conclusions regarding the nature of the contempt provided by section
14.12, a discussion of contempt is warranted. Although not decisive
of the issues you raise, such a discussion is instructive in
approaching what we believe to be the determinative inquiry: the
legislature's objective in enacting section 14.12 of the Family Code.
Contempt may be characterized as either civil or criminal. Civil
contempt "consists in failing to do something which the contemnor is
required to do by order of the court for the benefit or advantage of a
party to the proceeding; while a criminal contempt is all these acts
of disrespect to the court or its process," i.e., instances in which
the state alone has an interest in enforcement. Ex parte Wolters, 144
S.W. 531, 587 (Tex. Crim. App. 1911). Despite this distinction, our
supreme court has declared that "a contempt proceeding is unlike a
civil suit, has some of the incidents of a trial for crime, and is
quasi-criminal in nature." Ex parte Cardwell, 416 S.W.2d 382, 384
(Tex. 1967); Ex parte Davis, 344 S.W.2d 153 (Tex. 1961). Accordingly,
proceedings in contempt cases should conform as nearly as practical to
those in criminal cases. Deramus v. Thornton, 333 S.W.2d 824 (Tex.
1960); Ex parte Stanford, 557 S.W.2d 346 (Tex. Civ. App. - Houston
[lst Dist.] 1977, no writ). Relying upon these distinctions, you
conclude that the contempt envisioned by sections 14.09 and 14.12 of
the Family Code is civil in nature. One Texas court, however, has
reached the opposite conclusion:
Because the order punishes relator for a completed
act which affronted the dignity and authority of
the district court, the contempt is classified as
criminal. Since relator violated the [court's]
order outside the presence of the court, the
contempt is a constructive contempt.
Ex parte Wilson, 559 S.W.2d 698, 700 (Tex. Civ. App. - Austin 1977, no
writ). Other courts have reached the same conclusion. See Furtado v.
Furtado, 402 N.E.2d 1024 (Mass. 1980). Whether classifiFas civil or
criminal, contempt proceedings invariably invoke certain aspects of
the criminal process. Section 14.12 may be viewed as the
legislature's attempt to observe the courts' monition concerning the
quasi-criminal nature of contempt. The extent to which section 14.12
relies on the criminal process must be determined from the legislative
intent of that statute. The inquiry into legislative intent must
necessarily be prefaced by an investigation of the conditions
prompting the legislature to enact section 14.12.
p. 774
Honorable Ron Felty - Page 3 (JM-176)
Prior to 1981, there existed only two methods of enforcing child
support orders in Texas: (1) contempt and (2) reduction of the
arrearage to judgment. See Family Code 514.09. The purpose of
section 14.09 is to provide the courts with an efficient means of
enforcing payment of child support obligations. Harrison v. Cox, 524
S.W.2d 387, 392 (Tex. Civ. App. - Fort Worth 1975, writ ref'd n.r.e.).
The provisions of section 14,b9, coupled with the requirements of Rule
308-A of the Texas Rules of Civil Procedure, make enforcement of a
contempt order particularly arduous when the obligor parent is
unwilling or unable to comply withythe order. The notice requirements
of these provisions also allow the defaulting parent to escape his/her
obligation by secreting himself/herself from law enforcement
authorities. Testimony on House Bill No. 985, House Judiciary
Committee, public hearing, recorded May 20, 1981. Imprisonment of a
contemnor without providing that person with notice or a hearing
violates the requirements of due process. Ex parte Sauser. 554 S.W.2d
239, 240 (Tex. Civ. App. - Dallas 1977, no writ). Furthermore,
contempt orders arising from a failure to make court ordered child
support payments are often an empty remedy, rendered unenforceable
upon a showing of
(1) insufficiency of notice and/or absence of
a hearing, Ex parte Pena, 636 S.W.2d 741 (Tex.
APP. - Corpus Christ1 1982, no writ); Ex parte
Bush, 619 S.W.2d 298 (Tex. Civ. App. - Tyler 1981,
no writ); Bx parte Eureste, 614 S.W.2d 647 (Tex.
Civ. App. - Austin 1981, no writ); Ex parte
Hoover, 520 S.W.2d 483 (Tex. Civ. App. - El Paso
1975, no writ);
(2) contemnor's inability to purge self of
contempt (&, inability to make payments), E
Parte Englutt, 619 S.W.2d 279 (Tex. Civ. App. -
Texarkans 1981, no writ); Ex parte Sanders, 608
S.W.2d 343 (Tex. Civ. App. - Houston [14th Dist.]
1980, no writ); and
(3) vagueness, uncertainty, or lack of
specificity in contempt order, Ex parte White, 616
S.W.2d 340 (Tex. Civ. App. - San Antonio 1981, no
writ); Ex parte Finn, 615 S.W.2d 293 (Tex. Civ.
APP. - Dallas 1981, no writ); Ex parte Quevedo,
611 S.W.2d 711 (Tex. Civ. App. - Corpus Christ1
1981, no writ).
See Solender, Annual Survey of Texas Law: Family Law: Parent and
Child, 36 SW. L.J. 155, 178 (1982) and cases cited therein.
In addition to the procedural difficulties inherent in a contempt
action, a parent seeking to enforce a contempt order faces other
p. 775
Honorable Ron Felty - Page 4 (JM-176)
.
barriers. Even if successful, a dependent parent is often left with a
Pyrrhic victory:
The remedy of civil contempt puts an expensive and
onerous burden on the dependent parent who, even
as a result of such action, would receive nothing
from an obliger parent who is not in a position to
pay. A jail term following from criminal contempt
profits no one. Finally, reduction to judgment is
also not effective against an obliger parent who
disposes of non-exempt property and spends his
earnings as quickly as possible, or who moves out
of the county or state.
Bill Analysis to Senate Bill No. 105 (companion to House Bill No.
985), prepared for Senate Committee on Judiciary, filed in Bill File
to Senate Bill No. 105, 67th Leg., Legislative Reference Library. The
end result was summarized in a report to the Senate Committee on
Jurisprudence:
A recent study . . . contends that fully 75
percent of absent parents who were unwilling to
pay were able to escape their obligation. And of
all fathers under court-ordered child support
obligations, almost half paid less than ten
percent of the court-stipulated amount.
(Footnotes omitted).
Report to the Senate Committee on Jurisprudence, Issues in Child
Support Enforcement, January 1981, at 1.
In view of the inadequacies of enforcement proceedings initiated
by private individuals, the Sixty-seventh Legislature undertook to
provide an alternative scheme that not only enhances the chances of
collecting child support payments, but also preserves constitutionally
guaranteed rights and privileges of all parties. The product of that
undertaking, section 14.12 of the Family Code, is reproduced in
germane part:
(a) If the court finds that a person who has
been ordered to make payments for the support of a
child is in contempt of the court for the failure
or refusal to make a payment, the court may
suspend the imposition of the court's order of
commitment and place the person on probation on
the condition that the person shall continue the
court-ordered child support payments with court
costs and on other reasonable conditions that the
court requires.
p. 776
Honorable Ron Felty - Page 5 (JM-176)
The terms and conditions of probation may
include but shall not be limited to the conditions
that the probationer shall:
1. report to the probation officer as
directed;
2. permit the probation officer to visit him
at his home or elsewhere;
3. obtain counseling on financial planning,
budgeting management, alcohol or drug abuse, or
other matters causing the defendant to fail to pay
the child support payments;
4. pay all court costs.
. . . .
(c) A court granting probation may fix a fee
not exceeding $10 per month to be paid to the
court by the probationer during the probationary
period. The court may make payment of the fee a
condition of granting or continuing the probation.
The court shall deposit the fees received under
this section in the special fund of the county
treasury provided by Subsection (b) of Section
4.05 of Article 42.121, Code of Criminal
Procedure, 1965, to be used for the provision of
adult probation or community-based adult
corrections services or facilities other than a
jail or prison. (Emphasis added).
Reports and testimony prior to the enactment of section 14.12
indicate that this statute was intended to codify the practice of many
courts to suspend or defer enforcement of contempt orders to allow the
willing parent to comply with his/her obligation. See Report to the
Senate Committee on Jurisprudence, supra, at 20; Testimony on House
Bill No. 985, supra. See generally, Anderson v. Burleson, 583 S.W.2d
467 (Tex. Civ. App. - Houston [lst Dist.] 1979, no writ); Ex parte
Hart, 520 S.W.2d 952 (Tex. Civ. App. - Dallas 1975, no writ). The
underscored language above affirms this inference. We also note the
similarity between the quoted language of section 14.12 and article
42.13, section 3d of the Code of Criminal Procedure, the Misdemeanor
Adult Probation and Supervision Law.
The "probation" imposed pursuant to this subsection and article
42.12, section 3d(a) (for felonies) is not probation in the strict
sense. Rather, Texas courts have referred to this procedure as
p. 777
..-
Honorable Ron Felty - Page 6 (JM-176)
"deferred adjudication," permissible under the terms of article III,
section 1 of the Texas Constitution. McNew v. State, 608 S.W.2d 166,
176 (Tex. Crim. App. 1980). Because of these similarities, we
conclude that "probation" as contemplated by section 14.12 of the
Family Code is an analogue to deferred adjudication as provided in
article 42.13, section 3d of the Code of Criminal Procedure. We note,
however, that section 14.12 does not incorporate every provision of
article 42.13 -- we cannot, therefore, unequivocally declare that the
legislature intended every provision of article 42.13 to apply to
section 14.12 probationers. The answers to your questions are
dependent upon the extent to which these statutes interact.
Upon the enactment of section 14.12, Texas became the first state
to authorize statutorily probated contempt in child support cases.
One may reasonably question the use of criminal proceedings in what
are essentially civil matters; other states, however, regularly
employ the practice of probating contempt orders in non-criminal
settings, especially in cases affecting minors (a, child support,
custody, truancy). -See generally, 2 re G.B., 430 N.E.2d 1096 (Ill.
1981); Furtado v. Furtado, supra; Andterson v. Anderson, 109 N.W.Zd 571
(Minn. 1961); Hill v. Hill, 33 N.W.Zd 678 (M:ich. 1948). Given the
criminal and punitive connotations of the word "probation" and the
potential for adverse stigmatisation of persons placed on probation,
courts have utilized this remedy sparingly. Interim Report on Child
Support Enforcement in Texas, Senate Subcommittee on Public Health and
Welfare, Sixty-seventh Legislature, December 1982, at 15. The
hesitancy of the courts to use section 14.12 comports with what we
construe to have been the legislature's Intent -- that the benefits of
probation inure to the collection of child support obligations. Among
these benefits are the protections accorded persons granted probation.
Persons granted orobation are nrovided an arrav of constitutional
protections. -See Gagion v. Scarpeili, 411 U.S. 778 (1973); Ruedas v.
w, 586 S.Wm 520 (Tex. Crim. App. 1979). But see Frazier v.
State, 600 S.W.2d 271 (Tex. Crim. App. 1979); Bowen v. State, 649
S.W.2d 384 (Tex. App. - Fort Worth 1983, no writ). The court of
criminal appeals has declared that "[tlhe proceeding to revoke
probation, although not the same as a criminal trial, requires
substantially all the same procedure." Whisenant v. State, 557 S.W.2d
102, 104 (Tex. Grim. App. 1977). The Texas procedures for revocation
of probation afford probationers greater protection than the minimum
required by Gagnon V. Scarpelli. Ruedas v. State, m; Whisenant v.
State, supra. Among these protections is the representation of
probationers by counsel in a proceeding to revoke probation. Parker
v. State, 545 S.W.2d 151 (Tex. Crim. App. 1977). Persons subject to
probation by deferred adjudication are entitled to similar
representation. Thompson v. State, 626 S.W.2d 750, 753 (Tex. Crim.
APP. 1981). See also Fuller v. State, 653 S.W.2d 65 (Tex. App. -
Tyler 1983, no writ). An indigent probationer may request
representation and is entitled to receive-court appointed counsel.
p. 778
Honorable Ron Felty - Page 7 (JM-176)
C
See Code Crim. Proc. arts. 26.04 and 42.13, §3b; Ex parte Jentsch, 510
=.2d 320 (Tex. Grim. App. 1974); Ex parte Shivers, 501 S.W.2d 898
(Tex. Crim. App. 1973). Consequently, we answer your third question
affirmatively and conclude that section 14.12 probationers who are
indigent are entitled to appointed counsel.
Our analysis of this question has recently met with the approval
of two courts considering similar questions. The Fort Worth Court of
Appeals, after agreeing that contempt proceedings are quasi-criminal,
held the procedure to be followed in contempt cases before civil
courts is the same as that observed in criminal cases. Ex parte
Byram, No. 2-83-181-CV (Tex. App. - Fort Worth, Dec. 1, 1983, no writ)
(not yet reported). The United States Court of Appeals for the Fifth
Circuit reached a comparable conclusion, holding that due process
requires that an indigent person held in contempt for failure to make
court-ordered child support payments receive the assistance of
court-appointed counsel in such proceedings. Ridgway v. Baker, 720
F.2d 1409 (5th Cir. 1983). The court declared that the right to
counsel turns not on the characterization of a proceeding as -either
"criminal" or "civil," but upon whether a deprivation of liberty may
' result. Id. at 1413. Bearing this point in mind, the court concluded
that in child support proceedings in this state, defaulting parents
face the possibility of receiving both civil and criminal sanctions.
Id. at 1414. Finally, the court considered the suggestion that
imposing the responsibility of providing counsel on the state would
prove too expensive and administratively difficult a burden:
To some degree, the concern appears to be
paradoxical. If the contemnor is so lacking in
means that he cannot afford counsel, he is not
likely to be able to pay child support. Under
Texas law, if the accused contemnor does not have
the means to pay the arrearage. he cannot be
committed to jail for the purpose of coercing him
to make such payments. A contemnor can be
incarcerated only for failure to pay with his
present funds, in which case he is not indigent,
or for what the state classifies as criminal
contempt, in punishment for his past contemptuous
behavior, and then only if it is determined that
he could have made those payments when they became
due. If the parent is indeed indigent the state
ma~~obviate the need for counsel by announcing
imprisonment will not result from the
proceeding. Scott V. Illinois, 440 U.S. 367, 99
s.ct. 1158. 59 L. Ed. 2d 383 (1979). If it holds
the threat of jail over the defendant, however, it
must accord the defendant facing it due process,
including the right to counsel.
p. 779
Honorable Ron Felty - Page 8 (JM-176)
Ridgway v. Baker, supra, at 1415. Thus, when a proceeding harbors the
threat of imprisonment, as it certainly does in probation revocation,
the right to counsel, retained or appointed, cannot be denied.
Regarding your fourth question, we observe that although bail may
be authorized pending probation revocation proceedings within the
discretion of the court, Ex parte Ainsworth, 532 S.W.2d 640 (Tex.
Crim. App. 1976), a person subject to a deferred adjudication is
entitled to bail under article I, section 11 of the Texas
Constitution. Ex parte Laday, 594 S.W.2d 102, 104 (Tex. Crim. App.
1980) (en bane). In consonance with the decisions of the court of
criminal appeals and our foregoing determinations, we conclude that
section 14.12 probationers are entitled to bail pending revocation
proceedings. The provisions of section 8(a) of article 42.13 to which
you direct our attention are applicable in the event that bail is
denied. Given the legislature's intention that willing obliger
parents be afforded every opportunity to comply with his/her child
support obligation and the prohibition against imprisonment of section
14.09 contemnors who are unable to make support payments, Ex parte
Englutt, supra, it follows that section 8(a) of article 42.13 of the
Code of Criminal Procedure applies in the highly unlikely event that a
section 14.12 probationer is detained pending revocation proceedings.
We answer your fourth question, therefore, in the affirmative.
You ask about the role of the state in proceedings to revoke
probation imposed pursuant to section 14.12 of the Family Code. The
discussion thus far makes it clear that section 14.12 probation
requires significant involvement of the state. The legislature's
manifest purpose in enacting section 14.12 was to invoke the resources
of the state to relieve the dependent parent of the financial strain
attendant to the private system of enforcement, to ensure compliance
with child support obligations, and to allow willing parents another
opportunity to meet such obligations. We, therefore, believe it is
also within the contemplation of the legislature that the state bear
the burden of prosecuting violations of section 14.12 probation.
Your second question asks whether the district or county attorney
is responsible for prosecuting section 14.12 violations. We note that
jurisdiction over family matters is vested in district courts, family
district courts, and certain statutory courts having concurrent
jurisdiction with the district courts in family law matters. _See Tex.
Const. art. V. rct)(divorce cases); V.T.C.S. art. 1926a (Family
District Court ; Family Code §§11.01(2) (suits affecting
parent-child relationship, including child support) and 21.03(4)
(suits under Uniform Reciprocal Enforcement of Support Act); V.T.C.S.
art. 1970-358, 52(e) (county court of Hays county -- concurrent
jurisdiction over family law matters with district court in Hays
County); V.T.C.S. art. 1970-360, 53(b) (county court of Webb County);
V.T.C.S. art. 1970-367, 53(b) (county court of Walker County);
Armstrong v. Reiter, 628 S.W.2d 439 (Tex. 1982) (jurisdiction over
p. 780
Honorable Ron Felty - Page 9 (~~-176)
family matters rests exclusively in district courts and such other
courts as have concurrent jurisdiction by statute). Article V,
section 21 of the Texas Constitution provides that in counties with
both a county attorney and a district attorney, the legislature shall
regulate their respective duties. This office has previously observed
that the courts of this state construe this provision to confer no
authority on the county attorney to act in respect to a duty which the
legislature has not granted to the office. Attorney General Opinion
H-343 (1974) and cases cited therein. In view of the forum involved
in section 14.12 actions, we conclude that violations of that section
are to be prosecuted by the district attorney or the prosecuting
attorney who performs the functions of district attorney in that
county. We remind you that section 14.12 of the Family Code is an
extraordinary remedy rarely invoked by the courts and that the
legislature intended this section to facilitate, rather than stifle,
the collection of child support payments. Hence, we expressly limit
this opinion to apply in the improbable event that the obliger parent
refuses to satisfy the conditions of section 14.12.
SUMMARY
In proceedings to revoke probation imposed
pursuant to section 14.12 of the Family Code, the
state is to be represented by the district
attorney or the prosecuting attorney who performs
those functions of the district attorney in
certain counties. Under this section, indigent
probationers are entitled to court appointed
counsel at revocation hearings. The bail and
notice provisions of article 42.13(8)(a) of the
Code of Criminal Procedure apply in the unlikely
event that a section 14.12 probationer is detained
pending revocation proceedings.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
p. 781
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Honorable Ron Felty - Page 10 (JM-176)
APPROVED:
OPINION COMMITTEE
Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 782