Honorable Don M.Nuaent

DistrictAttorney - 109th Judicial District Kermit,Texas OainionNo. C-733 Re: Additional explanationof 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 contempt proceedings entered against a defendant under a Uniform ReciprocalEnforcement of Support action. Dear Mr. Nugent:

You have requested an opinion providing additional explanationof the holding in response to Question#l, Attorney General's Opinion C-634 (1966),relating to the enforcementof an order by a respondentcourt through contempt proceedingsentered 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 ReciprocalEnforcement of SupportAct. I thought1made my question clear but will attempt to rephrase it so you will understand exactly what I am asking. First of all, letme 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 ,$ourtmay 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 previousorder?

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Hon. Don M. Nugent, Page 2 (c-7331

"Hypotheticallyassume, if you will, that the complainingex-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 respondent or defendanthusband is ordered to appear and show cause why he should not pay child support or whyhe should not be held in contempt. He appears and the Court enters its order requiringhim to pay, say, $25.00 per week through the District Clerk's office in Winkler County. He pays $25.00 for the first two or three weeks and again discontinuespayment. We receive a letter from the proper authorities in Louisiana informingus that he has discontinuedpayments again and orders us to proceed further. NOW, at this point,my questions are these: "1
. Is another complaint required to get thisman back into the courthouse? "2
. If so, what is the form of that complaintand who signs that complaint? "If it is necessary for the complainingwife to file the complaint,must it be filed in Louisianaand come through our Clerk's office aga$O:-ormay 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 againsthim and then, assuming that said complaint is finally filed,must we give him additional notice to show cause? "You can see that I am concernedabout simply themechanics of how to enforce the Judge's order in one of these cases and also T am concerned about having to give him notice of the second hearing because in all'llkelihood,he will simply disappearbefore he will appear. "I certainly appreciateyour prior opinion No.

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C-634, but it did not tellme exactly what I wanted to know. tion.

. .' Thank you for your attenThat portion of your request for OpinionNo. C-634 (1966)here pertinentreads as follows:

"I
. Very often this office is called on by another State to enforce the payment of child supportby our resident to the resident of another state. Thismatter is set for hearing and our DistrictJudge orders that the individual pay a certain amount through the registry of the Court. The individualwill 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 specificallycan we do to cause our resident to comply with our Court order? "2
. May we orginate some sort of complaint based on contemptof Court ormust the complaining State file a new complaintunder the reciprocal support These questions,aswe consolidatedand restated in as follows:

"In the event that act?" then understood them, were our OpinionNo. C-634 (1966)

a local resident defaults on the support paymentswhich he has been ordered by a localTexas court tomake in response to a petitionpresented to the court,by an initiating state, for enforcementof a support order under Article 232%b-4,whether the Texas court may punish the defaultingdefendantby contempt proceedings,without a new complaintbeing filed by the initiating state." The answer given to the question as we stated it is as follows; Section 25, Article 232813-4 provides in part: If I

. . . (T)hecourt of this State when

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acting as responding statehas the power to subject the defendant to such terms and conditionsas the courtmay deem proper to assure compliancewith its orders and in particular:

“f(c) To punish the defendantwho shall violate any order of the court to the same extent as is providedby law for contemptof the court in any other suit or proceeding cognizableby the court. (Emphasissupplied) “The above quoted portion of Article 232%b-4 reveals that the Legislaturedid not contemplate that a secondpetition from the initiating state wouldbe necessary in order for the Texas court to enforce its order by contempt proceed1

ngs.” Both our restatementof your originalquestions and our answer to the questions as combined and restatedassume the power in the court in a child support case to enforce its orders through contemptproceedingswithout a formal complaintbeing filed. Ex ParteWinfree, 153 Tex. 12, 263 S.W.2d 154 (1953).

Confusionmay arise through the fact that there is a conflictbetween the Texas Supreme Court and the Texas Court of CriminalAppeals and the answer to the question as to what is necessary to initiate contemptproceedingsthus varies within the State depending upon whether the contempt order enteredisin a civil or criminal suit. In 20 Tex.Bar Jour. 74 (1957) it is stated:

“AlthoughWinfree is now authority for the propositionthat verificationof the complaint Is not essential, the rule is inapplicable 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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The Supreme Court in Ex ParteWinfree, supra, stated: 1,

. . .The thesis that verification is essential includes,of course, the proposition thatthere mustbe a complaint to verify; Ex parteWhite, supra. The latter decision, as well as those in the Duncan and Landry~cases, stand for the further point of present interest,that a show cause order or rule nisi followed by due service and properhearing,while obviously sufficient to apprise the contempt defendant of the charge against him and afford him an opportunityto present his defense, is yet no substitute for an affidavit of accusation.

. . II

. . .
,I

. . . While evidently a substantialnumber of courts of other jurisdictionsconsider the rule nisi or show cause procedure no substitute for a formal complaint, several take the view we now take that it is. Haumaartnerv. 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: "'Thegist of the offensewas 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 immaterial to the validity of a subsequent commitment for contemptwhich 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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“It is our view that the questionbefore us is to be resolved not on a concept of jurisdiction judiciallyborrowed from the detailed requirementsof our written law for criminalprosecutions,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 amotion to dissolve a restrainingorder 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-mentioneddecisions of the Court of CriminalAppeals, spoke altogether in terms of due processbased on proper notice and hearing of the contempt charge
. That no complainthad been filed was evidently considered importantonly for its bearing on the broadermatter of notice. “Prior to Ex parteWhite we had evidently decided that due process did not require a complaint in cases where the court.itself should in effectmake the chargeby issuing a show cause order, give noticeby timely service of the latter and in due course afford a properhearing. Rule 30%A,Tex.R.Civ.Proc., reaffirmed in Ex parte Nix, 149 Tex. 267, 231 S.W.2d 411, certioraridenied, 340 U.S. 840, 71 S.Ct. 28, 95 L.Ed. 616, expresslyprovides for such a procedure in cases of contempt for failure to complywith child support orders, and our action in adopting this provisionof the rule is clearly inconsistentwith a contrary view of due process. . .’ Ex ParteWinfree, 263 S.W.2d 154, Page 157. Your question No. 1 is answered in the negative.
Your other question is predicatedupon an affirmative answer to your first question.

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SUMMARY ----_-_ Section 25, Article 232%b-4, authorizes a court acting as respondentcourt under Article 232%b-4 to punish contempts as in other child support cases. Ex Parte Winfree, 153 Tex. 12, 263 S.W.2d 154 (lg5j) authorizes the court to acquire jurisdici tion in contemptproceedings in child support cases on the basis of a rule nisi or show cause order, without an additional complaint.

Yoursvery truly, WAGGONER CARR Attorney General

LJC:cf APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Sam Kelley Charles Swanner John Reeves Charles Bardwell orney General

APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright

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