. (I
- .
THEA~ORNEY GENERAL
OFTEXAS
WILL WILSON
AITORNICY G*:NERAL
June 4, 1957
Honorable E. W. Patteson Opinion No. WW-145
County Attorney
Gonzales County Re: Whether or not a wife must
Gonzales , Texas file a divorce suit before
she ma proceed under Brti-
cle 60 t , Penal Code of
Dear Sir: Texas
You recently requested an opinion from this office
on the following question:
“Is it necessary for a wife to file a di-
vorce proceeding before she may take advantage
of the provisions contained in Article 604,
Penal Code of Texas?”
It is our opinion that it is unnecessary for a di-
vorce proceeding to precede the action contemplated by Uticle
604, Penal Code.
Article 604, Penal Code of Texas, is as follows:
“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 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 vio-
lation or refusal to obey such order as for con-
tempt *I’
We find the following statement in Ex Parte Tavlor ,
137 Tex. 505, 155 S.W.2d 358 (1941):
“It was well settled by the decisions of this
State, prior to the enactment of Article 4639a,
Acts 1935, 44th Leg., p. 111, ch. 39, Vernon’s Anno-
tated Texas Statutes, that the courts of this State,
in an independent suit not involving a divorce or
a .
Honorable E. W. Patteson, page 2 (WW-145)
the custody of a minor child were without au-
thority to compel the paymen t of allowances by
a parent for the support of his minor child.
, 120 Tex. 491, 40 S.W.
er v. BOWY~ 130 Tex.
e above statiment we
inal action such as
is provided for in the Penal Code, Article 604,
which is not here involved.”
“It is very clear from a reading of the
above Act that it does not attempt to enlarge the
power of the court so as to authorize the compel-
ling of such payments in suits not involving a
suit ;for divorce or the custody of a minor child.
9 e 0
It will be noticed that Ex Parte Tavlpr and the cases
cited therein as authorities for the holding have reference to
child support actions.
These decisions were written prior to the enactment
of Article 4639b, Revised Civil Statutes of Texas, Acts 1955,
54th Legislature. This new legislative enactment permits a suit
independent of a divorce proceeding to compel child support pay-
ments.
Certainly Article 604, Penal Code of Texas is an ancil-
lary proceeding to a criminal action and is not conditional upon
a divorce proceeding first being instituted.
Article 604, Penal Code of Texas, provides an-
cillary relief to a criminal action, and it is not
necessary for a wife to file a divorce proceeding in
order to take advantage of the provision of said
statute.
Very truly yours,
WILL WILSON
JLS: jl:rh:wb Assistant
Honorable E. U. Patteson, page 3 cm!-1451
APPROVED:
OPINION COMPfITTL&::
H. Grady Chandler, Chairman
Robert 0. Smith
Ed Cazares
Will Davis
REVIEWEDFOR THE ATTORNEYGENERAL
BY: Geo. P. Blackburn