-- 

September 12, I 

This OP;C~~ 

1962 

Affirms Opinion 

i 

Mr. Dan Brazil 

#--M&y~.~j 

Opinion No. W-1437 

County Attorney 

Angelina County Re: Whether the provisions 

Lufkin, Texas of Article 604 of the 

Penal Code can be applied 

to the offense of wife, 

or 0 r 

and&%&"~no%?fe 

Dear Mr. Brazil: Co&y Court. 

You have asked this office an opinion on the following 

question: 

"Can the provisions of Article 604 of the 

Penal Code be applied to the crime of~wife, or of 

child, or of wife and child desertion, in County 

Court? In other words, would the County Judge 

have the authority to apply the provisions of such 

article to such a criminal case pending in the 

county Court?" 

Article 602 of the Penal Code provides as follows: 

'IAny husband who shall wilfully desert, neglect 

or refuse to provide for the support and maintenance 

of his wife who may be in necessitous circumstances, 

or any parent who shall wilfully desert, neglect or 

refuse to provide for the support and maintenance of 

his or her child or children under eighteen years of 

age, shall be guilty of a misdemeanor, and upon conviction, shall be punished by confinement in the 

County Jail for not more than two years." As amended 

Acts 1959, 56th Leg., p. 504, ch.222, 3 1. 

Article 604 provides: 

"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 
Mr. Dan Brazil, page 2 (WW-1437) 

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 violation or refusal to obey such order 

as for contempt." 

Leg., p. 58, ch. 

Acts 1913, p. 188; Acts 1931, 42nd 

38, g 1. 

This office has held that the County Court does not have 

jurisdiction to enter an order for support, pendente lite, after 

the filing of a complaint against the defendant for the crime of 

child desertion when the complainant and defendant are divorced 

in a Texas District Court and that Court has entered an order 

for support, and that any order entered by a County Court under 

such circumstances are not valid. Attorney General's Opinion 

No. WW-1023, March 8, 1961, a copy of which is attached hereto. 

We hereby affirm that holding. 

In those cases where no support order has been entered by 

a District Court pursuant to a divorce proceeding, Article 604 

applies. We therefore answer your question in the affirmative. 

The County Judge does have authority under Article 604 to enter 

the order therein provided, except where jurisdiction to enter 

such an order has been acquired by the District Court because of 

the entry of a support order in a divorce proceeding. Insofar as 

Attorney General's Opinion No. O-238 is inconsistent with this 

holding, we overrule that opinion. 

SUMMARY 

Under Article 604, Vernon's Penal Code, the 

County Judge has authority to enter temporary orders 

providing for the support of deserted wives and 

children, or both, pendente lite, except where 

jurisdiction to enter such orders has, because of a 

support order in a divorce decree, been acquired by 

the District Court. 

Very truly yours, 

NVS : sm 
Mr. Dan Brazil, page 3 (WW-1437) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

L. P. Lollar 

Joe Osborn 

James Broadhurst 

REVIEWED FOR THE ATTORNEX GENERAL 

By Leonard Passmore