Honorable Don M.Nuaent Oainion No. C-733
District Attorney -
109th Judicial District Re: Additional explanation of
Kermit, Texas the holding in response to
Question #l, Attorney Gen-
eral's Opinion C-634 (1966),
relating to the enforcement
of an order by a respondent
court through contempt pro-
ceedings entered against a
defendant under a Uniform
Reciprocal Enforcement of
Dear Mr. Nugent : Support action.
You have requested an opinion providing additional
explanation of the holding in response to Question #l,
Attorney General's Opinion C-634 (1966), relating to the
enforcement of an order by a respondent court through con-
tempt proceedings entered against a defendant under a Uniform
Reciprocal Enforcement of Support action.
Your request reads, in part, as follows:
“Please refer to the Attorney General’s
Opinion #C-634 with regard to some
questions I asked about the Texas Uniform
Reciprocal Enforcement of Support Act. I
thought1 made my question clear but will
attempt to rephrase it so you will under-
stand exactly what I am asking. First of
all, let me assure you that I do know that
the Act gives the Court the power 'to subject
the defendant to such terms and conditions as
the ,$ourt may deem proper to assure compliance
with its orders. . .I
“My question again is exactly what procedure
do I use or does the Court use to get the
man back into the courthouse for enforcement
of its previous order?
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,
Hon. Don M. Nugent, Page 2 (c-733 1
"Hypothetically assume, if you will, that
the complaining ex-wife and children live
in Louisiana. She files her complaint under
the Act in Louisiana. It is sent to our
District Clerk here in Winkler County. It
is placed on the Court's docket, the respon-
dent or defendant husband is ordered to appear
and show cause why he should not pay child
support or why he should not be held in con-
tempt. He appears and the Court enters its
order requiring him to pay, say, $25.00 per
week through the District Clerk's office in
Winkler County. He pays $25.00 for the first
two or three weeks and again discontinues pay-
ment. We receive a letter from the proper
authorities in Louisiana informing us that he
has discontinued payments again and orders us
to proceed further. NOW, at this point, my
questions are these:
"1 . Is another complaint required to
get this man back into the courthouse?
"2 . If so, what is the form of that
complaint and who signs that complaint?
"If it is necessary for the complaining wife
to file the complaint, must it be filed in
Louisiana and come through our Clerk's office
aga$O:- or may she sign a complaint in Louisiana
in the form of an affidavit, send it directly
to our Clerk who files it and acts on it, or
may I personally file an affidavit in the form
of a complaint against him and then, assuming
that said complaint is finally filed, must we
give him additional notice to show cause?
"You can see that I am concerned about simply
the mechanics of how to enforce the Judge's
order in one of these cases and also T am con-
cerned about having to give him notice of the
second hearing because in all'llkelihood, he
will simply disappear before he will appear.
"I certainly appreciate your prior opinion No.
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Hon. Don M. Nugent, Page 3 (C-733)
C-634, but it did not tell me exactly what
I wanted to know. Thank you for your atten-
tion. . .'
That portion of your request for Opinion No. C-634
(1966) here pertinent reads as follows:
"I . Very often this office is called on by
another State to enforce the payment of child
support by our resident to the resident of
another state. This matter is set for hearing
and our District Judge orders that the indivi-
dual pay a certain amount through the registry
of the Court. The individual will then pay for
a while then cease paying. We will normally
receive a letter from the demanding State asking
us to take further action to enforce payment.
"1. My question is what specifically can we
do to cause our resident to comply with our
Court order?
"2 . May we orginate some sort of complaint
based on contempt of Court or must the com-
plaining State file a new complaint under the re-
ciprocal support act?"
These questions,as we then understood them, were
consolidated and restated in our Opinion No. C-634 (1966)
as follows:
"In the event that a local resident
defaults on the support payments which he
has been ordered by a local Texas court
to make in response to a petition present-
ed to the court, by an initiating state,
for enforcement of a support order under
Article 232%b-4, whether the Texas court
may punish the defaulting defendant by
contempt proceedings, without a new com-
plaint being filed by the initiating state."
The answer given to the question as we stated it is
as follows; Section 25, Article 232813-4provides in part:
IfI. . . (T)he court of this State when
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Hon. Bon M. Nugent, Page 4 ~(c-733)
acting as 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:
“f(c) To punish the defendant who shall
violate any order of the court to the same
extent as is provided by law for contempt of
the court in any other suit or proceeding
cognizable by the court. (Emphasis supplied)
“The above quoted portion of Article 232%b-4
reveals that the Legislature did not contem-
plate that a second petition from the initiat-
ing state would be necessary in order for the
Texas court to enforce its order by contempt
proceed1ngs .”
Both our restatement of your original questions and
our answer to the questions as combined and restated assume
the power in the court in a child support case to enforce
its orders through contempt proceedings without a formal
complaint being filed. Ex Parte Winfree, 153 Tex. 12, 263
S.W.2d 154 (1953).
Confusion may arise through the fact that there is a
conflict between the Texas Supreme Court and the Texas Court
of Criminal Appeals and the answer to the question as to what
is necessary to initiate contempt proceedings thus varies
within the State depending upon whether the contempt order en-
tered is in a civil or criminal suit. In 20 Tex.Bar Jour. 74
(1957) it is stated:
“Although Winfree is now authority for the
proposition that verification of the com-
plaint Is not essential, the rule is in-
applicable to cases arising on the criminal
side of the docket. There the complaint
must be verified. Ex Pa&e Sturrock, 80
Tex.Crim.Rep. 307, 189 S.W. 487 (1916). . .'
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Hon. Don M. Nugent, Page 5 (C-733)
The Supreme Court in Ex Parte Winfree, supra, stated:
1,. . . The thesis that verification is
essential includes, of course, the pro-
position thatthere mustbe a complaint
to verify; Ex parte White, supra. The
latter decision, as well as those in the
Duncan and Landry~cases, stand for the fur-
ther point of present interest, that a
show cause order or rule nisi followed by
due service and proper hearing, while
obviously sufficient to apprise the con-
tempt defendant of the charge against
him and afford him an opportunity to
present his defense, is yet no substi-
tute for an affidavit of accusation. . .
II. . .
,I
. . . While evidently a substantial number
of courts of other jurisdictions consider
the rule nisi or show cause procedure no
substitute for a formal complaint, several
take the view we now take that it is.
Haumaartner v. Jounhin. 107 Fla. 85%. 143
So. i/36; Hunter V.-State, $51 Ala..li, 37
So.2d 276; ,Inre Fletcher, 71 App.D.C. 108,
107 F.2d 666. In the Baumgartner case (107
Fla. 858, 143 So. 437), it was said:
"'The gist of the offense was stated in
the rule nisi, which operates as the
charge. How the circuit judge arrived
at the basis of this charge, whether by
testimony taken in chambers, personal
view, or hearsay report, is utterly im-
material to the validity of a subsequent
commitment for contempt which the record
shows was duly heard and determined against
contemnor after a "full" hearing, with
opportunity to him to defend.'"
The Texas Supreme Court views the requirements for
a valid contempt confinement in a child support case in
the light of due process--
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Hon. Don M. Nugent, Page 6 (C-733)
“It is our view that the question before
us is to be resolved not on a concept of
jurisdiction judicially borrowed from the
detailed requirements of our written law for
criminal prosecutions, but on the broader
ground of due process. In Ex parte Ratliff,
117 Tex. 325, 3 S.W.2d 406, 57 A.L.R. 541 (in
which notice of a hearing of a motion to dis-
solve a restraining order directed against
Ratliff was held not to be notice adequate to
sustain a contempt judgment against him for
violation of the order) Justice Greenwood,
though citing some of the above-mentioned deci-
sions of the Court of Criminal Appeals, spoke
altogether in terms of due process based on
proper notice and hearing of the contempt
charge . That no complaint had been filed was
evidently considered important only for its
bearing on the broader matter of notice.
“Prior to Ex parte White we had evidently
decided that due process did not require a
complaint in cases where the court.itself
should in effect make the charge by issuing a
show cause order, give notice by timely ser-
vice of the latter and in due course afford a
proper hearing. Rule 30%A, Tex.R.Civ.Proc.,
reaffirmed in Ex parte Nix, 149 Tex. 267, 231
S.W.2d 411, certiorari denied, 340 U.S. 840,
71 S.Ct. 28, 95 L.Ed. 616, expressly provides
for such a procedure in cases of contempt for
failure to comply with child support orders, and
our action in adopting this provision of the
rule is clearly inconsistent with a contrary
view of due process. . .’ Ex Parte Winfree, 263
S.W.2d 154, Page 157.
Your question No. 1 is answered in the negative.
Your other question is predicated upon an affirmative
answer to your first question.
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Hon. Don M. Nugent, Page 7 (c-733 1
SUMMARY
----_-_
Section 25, Article 232%b-4, authorizes
a court acting as respondent court under
Article 232%b-4 to punish contempts as in
other child support cases. Ex Parte Win-
free, 153 Tex. 12, 263 S.W.2d 154 (lg5j)
authorizes the court to acquire jurisdici
tion in contempt proceedings in child
support cases on the basis of a rule nisi
or show cause order, without an additional
complaint.
Yours very truly,
WAGGONER CARR
Attorney General
orney General
LJC:cf
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Sam Kelley
Charles Swanner
John Reeves
Charles Bardwell
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright
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