AKlsTaN 111.TExaca
WILL wILsoN
Ax-rORNEY GE:NElG%E November 28, 1961
Opinion No. WW-1201
Mr. W. Gail Walley Re: Questions arising
Acting Criminal District Attorney under the Uniform
Jefferson County Reciprocal Enforce-
Beaumont, Texas ment.of.SupportAct
(Art. 2328b, Vernon's
Dear Mr. Walley: Civil Statutes)
You have requested an opinion from this office re-
garding the following questions. The questions and our
opinions are set out below.
"(1) Is the District Attorney comnelledby
statute to act as petitioner'srepresentative
in any case where petitioner resides in his
district;but where circumstancesdo not
warrant the filing of a criminal charge of
non-support?
"(2) Is the District Attorney compelled b
statute to act as petitioner'srepresentat-3ve
in any case where petitionerresides in his
district, but where petitioner IS able to
retain private counsel to file the reciprocal
support action?"
This office is unable to find any language in Article
2328b of Vernon's Civil Statutes which compels the District
Attorney to represent the petitionerwhen the petitioner
resides in his district. Where circumstancesdo not warrant
the filing of a criminal charge under Section.11 of the
Uniform Reciprocal Enforcementof Support Act, the action
is civil in nature and the District Attorney is not compelled
to represent the petitioner. (See Attorney General's Opinion
v-1409).
"(3) Section 8 of the Act provides 'Where the
action is broughtby or through the State or
an agency thereof, there shall be no filing
fee. It has been brought to the attention
of this office that at least one District Attorney
in this state refuses to file a reciprocal action
without prepayment of filing fee,regardlessof
the circumstancesof the petitioner,on the
grounds that the District Clerk has the right,
and exercises the right, to challengeany and all
Mr. w. G. Walley, page 2 (WW-1201)
pauper's oaths. Does the District Clerk
have the right to demand or challengea
pauper's oath in any reciprocal case filed
through the office of the District Attorney?"
Section 8 of Article 2328b-3 is as follows:
Vhenever the State or a political subdivision
thereof has furnished support to an obligee it
shall have the same right to invoke the pro-
visions hereof as the obligee to whom\the
support was furnished for the purpose of secur-
ing reimbursementof expendituresso made.
"When the Petition is filed in the District
Court of this State, it shall be accompanied
by a filing fee or a pauper's affidavit which
the Court may in its discretion accept in.
lieu of the filing fee; provided, however, that
the Court of this State, acting either as an
initiating or responding State, may in its
discretion, direct that any part of or all
of the fees or costs incurred in this State
shall be paid by the county. Where the action
is brought by or through the State or an
agency thereof, there ,shallbe~no filing fees;"
;s2amended Acts 1953, 53rd Leg., p.907, ch. 374,
.
It is the opinion of this office in the event the
action is brought by or through the State or an agency thereof
that there shall be no filing fee, as provided in Section 8,
Article 2328b. If an action is filed by an individual,it is
within the discretion of the judge of the court to,,acceptthe
pauper's affidavit in lieu of the filing fee. The court may,
in its discretion,direct that any part of or all the fees
or costs incurred in this State shall be paid by the county.
“(4) Does the Criminal~DistrictCourt of
Jefferson County, Texas, have jurisdictionin
cases filed under the provisions of the
Uniform Reciprocal Enforcementof Support
Act?"
Article 52-160a confers jurisdictionupon the Criminal
District Court of Jefferson County in civil suits, causes, and
matters involving:
"(1) Divorce, 88 provided in Chapter 4,
Title 75, of the Revised Civil Statutes of
Texas of 1925, and any amendments thereof,
heretofore or hereafter made thereto;
. .
Mr. W. G. Walley, page 3, (WW-1201)
"(2) Dependent and delinquent children,
as provided in Title 43, Revised Civil
Statutes of Texas of 1925, and any amend-
ments thereof, heretofore or hereafter made
thereto;"
The above mentioned Title 43 and 75 are the pro-
vision8 covering all matters of divorce and dependent and
delinquent children. It la the opinion of this office that
52-16Oa gives jurisdictionto the Criminal District Court
of Jefferson County to act on cases filed under the pro-
visions of the Uniform Reciprocal Enforcementand Support
Act.
Your letter further states:
"As a result of the decisiou in Freeland vs.
Freeland, 313.SW2d 943 (Tex. Civ.App.1958,no
writ history), certain questions have arisen
as to the jurisdictionof the district court
and the duties of the district attorney as
petitioner'srepresentativewhere petitioner
no longer resides in the district where the
divorce and support award were granted. These
questions are as follows:
"(5) Must a petitioner return to the county
where divorce and support award were granted
to file for support under the uniform support
act? Or may petitioner file in any district
court where such petitioner and children for
.nhom support was awarded currently reside?
"(6) If the answer to question number five (5)
is that only the district court where divorbe
and support were awarded has jurisdiction~as
petitioning court, is the District Attorney in
the district where the divorce ,andsupport
were awarded comnelled& statute to represent
a petitionerwho is not a resident of his
district in the following circumstances:
"(a) Where facts justify the filing of a
criminal non-support charge in the county
where the divorce was granted?
l*(b) Where facts do not justify the filing
of a criminal non-support charge in the county
where the divorce was granted?
"(c) Where the non-residentpetitioner is
able to employ private counsel to file the
support action?"
.
Mr. W. G. Walley, page 4, (WW-1201)
In answer to your question number.5 we refer you.
to Attorney General's Opinion No. WW-784. This opinion,
which we reaffirm, holds that the petitionermust return
to the court where divorce and support award were.granted
to file for support under the Uniform Support Act. The
court which granted the original divorce and support award
has the sole jurisdictionto enforce its decrees, Therefore,
a criminal charge under the reciprocal support act must be
filed in that court; However, a criminal charge undoer
Articles 602, 602-A, and 603, V.P.C. must be filed in the
county where the abandonment occurred or in the county
where the wife or child resided forsix months next preceed-
ing the filing of the indictmentor information.
In reference to your question number 6 Article 25
Code of Criminal Procedure, this reads as follows:
"Each district attorney shall represent the
State in all criminal cases in the district
courts of his district, except in cases where
he has been, before his election, em loyed
adversely. When any.criminalprocee%ing is
had before an examining court in his-district
or before a judge upon habeas corpus, and he
is not notified of the samsand :'IS'~'at the
time within.the county where such proceeding-
is had, he shall represent the State therein,
unless prevented by other official duties."
The duty of the District Attorney to file a criminal
non-support eharge is the same as his duty to file any other
criminal charge called to his attention.
We answer your questions number 6(b) and 6(c) in the
negative because such proceedingsare ~1~11 in nature.
SUMMARY
A district attorney is not compelled by statute
to act as Petitioner'srepresentativein a civil
action under the Uniform Reciprocal Enforcement
of Support Act. The District Judge and not the
District Clerk has the discretion to accept a
pauper's affidavit in lieu of a filing,fee,but
the District Clerk may challenge the oath.~~The
Criminal District Court of Jefferson County has
jurisdictionover ,casesfiled under the pro-
visions of the Uniform Reciprocal Enforcementof
Support Act. A Petitionermust return to the
County where his divorce was granted to file
for support under the Uniform Reciprocal Enforcement
Mr. W. G. Walley, page 5, (w-1201)
of Support Act. The duty of the District Attorney
to file a criminal non-support charge under the
Uniform Reciprocal Enforcementof Support Act
is the same as his duty to file any other criminal
charge called to his attention.
Yours very truly,
WILL WILSON
BJ. T.$uLuL-
Walker
Assistant Attorney General
JTW:bjh
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Gordon Cass
Jack Price
Norman Suares
Riley Eugene Fletcher
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.