Honorable Don M.Nuaent 

District Attorney - 

109th Judicial District 

Kermit, Texas 

Oainion No. C-733 

Re: 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 contempt proceedings 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 contempt 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 understand 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? 

-3530- 
, 

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 respondent 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 contempt. 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 payment. 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 concerned 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. 

-3531- 
Hon. Don M. Nugent, Page 3 (C-733) 

C-634, but it did not tell me exactly what 

I wanted to know. 

tion. . .' 

Thank you for your attenThat 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 individual 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 complaining State file a new complaint under the reciprocal support 

These questions,as we 

consolidated and restated in 

as follows: 

"In the event that 

act?" 

then understood them, were 

our Opinion No. C-634 (1966) 

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 presented 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 complaint being 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)he court of this State when 

-3532- 
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 contemplate that a second petition from the initiating state would be necessary in order for the 

Texas court to enforce its order by contempt 

proceed1 ngs . ” 

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 entered 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 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). . .' 

-3533- 
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 proposition 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 further 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 contempt defendant of the charge against 

him and afford him an opportunity to 

present his defense, is yet no substitute 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; ,In re 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 immaterial 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-- 

-3534- 
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 dissolve 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 decisions 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 service 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. 

-3535- 
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 Winfree, 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 

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 

-3536-