Honorable Don Nugent Opinion No. C-710
District Attorney
Winkler County Courthouse Re: Where a husband fails
Kermit, Texas to pay child support
pursuant to a divorce
decree, is it the duty
of the District Clerk
to prepare and file
papers citing the hus-
band for contempt of
Court, and is it the
duty of the County or
District Attorney to
represent the wife at
Dear Mr. Nugent: such hearing?
By your recent letter you request an opinion of
this office concerning the following facts:
(1) Two parties are divorced in this county.
Both continue to live here with the wife
having custody of the children and the
husband having been ordered to pay child
support. The husband discontinues the
payment of such support. A practice in
this judicial district has developed which
allows the wife to have the forms, citing
the husband for contempt, prepared by the
District Clerk. The District Judge then
sets the contempt motion for hearing and
requires either the District or County
Attorney to represent the wife at such
hearing.
Concerning the above, you have asked the follow-
ing questions:
(1) Is it the duty of the District Clerk to
accept, prepare, and file the complaint
on behalf of the wife in a case of this
nature?
(2) Is it the duty of the County or District
Attorney to represent the wife in a case
such as this?
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Honorable Don Nugent, page 2 (C-710 )
Article 463ga, Vernon's Civil Statutes, pro-
vides in part as follows:
"The court may by judgment order either
parent to make periodical payments for the
benefit of such child or children, until
same have reached the age of eighteen
(18) years, or, said court may enter a
judgment in a fixed amount for the support
of such child or children, and such court
shall have full power and authority to en-
force said judgments by civil contempt
proceedings after ten (10) days notice to
such parent of his or her failure or re-
'fusal to carry out the terms thereof, and
for the purpose of ascertaining the ability
of the parents of such child or children
to contribute to the support of same,
they may be compelled to testify fully in
regard thereto, under penalty of con-
tempt of court, as in other cases."
Under the above cited,statute, the remedy for
the husband's failure to pay child support is civil in
nature, and no authority can be found which obligates
the District Clerk to prepare petitions, motions or
citations for contempt for individual parties in civil
cases. The District Clerk, of course, must accept and
file petitions and motions of this nature as part of
his duties. Neither can any authority be found that
obligates the District or County Attorney to represent
individual parties in a civil action. However, in
contempt proceedings in child support cases, if the
Judge of the Court appoints either the District or
County Attorney to advise with and represent the claim-
ant, under the provisions of Rule 308-A, Vernon's Texas
Rules of Civil Procedure, it then becomes their duty
to advise with and represent the clamiant.
Your letter specifically excluded any questions
relating to the Uniform Reciprocal Child Support Act.
SUMMARY
(1) It is not the duty of the District
Clerk to prepare petitions, motions, or
complaints of a civil nature for indi-
vidual parties.
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Honorable Don Nugent, page 3 (C-710 )
(2) It is not the duty of the County or
District Attorney to represent individual
parties in a civil action. However, in
contempt proceedings in child support cases,
if the Judge of the Court appoints either
the District or County Attorney to advise
with and represent the ciaimant, under the
provisions of Rule 308-A, Vernon's Texas
Rules of Civil Procedure, it then becomes
their duty to advise with and represent
the claimant.
Very truly yours,
WAGGONER CARR
Attorney General
By:
TWM/er Assistant Attorney General
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Sam Kelley
Robert E. Owen
Lonny F. Zwiener
John Banks
APPROVED FOR THE ATTORNEY GENERAL
By: T. B. Wright
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