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September 12, 

# I This OP;C~~ 1962 Affirms Opinion i

Mr. Dan Brazil #--M&y~.~j OpinionNo. W-1437 CountyAttorney 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 otherwords, 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 shallwilfully desert,neglect or refuse to provide for the support andmaintenance of his wife who may be in necessitous circumstances, or any parent who shallwilfully desert,neglect or refuse to provide for the support and maintenance of his or her child or childrenunder eighteenyears of age, shallbe guilty of a misdemeanor, and upon conviction, shallbe punishedby 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 complaintagainst 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 applicationandMr. 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, andmay 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 jurisdictionto enter an order for support,pendente lite, after the filing of a complaint against the defendant for the crime of child desertionwhen the complainantand defendant are divorced in a Texas District Court and that Courthas entered an order for support, and that any order enteredby a County Court under such circumstancesare not valid. Attorney General'sOpinion No. WW-1023, March 8, 

### 1961,a copy of which is attachedhereto. We hereby affirm that holding.
In those caseswhere no support orderhas been enteredby a District Court pursuant to a divorce proceeding,Article 604 applies. We therefore answeryour question in the affirmative. The County Judge does have authorityunder Article 604 to enter the order therein provided, exceptwhere jurisdictionto enter such an order has been acquiredby the District Courtbecause of the entry of a support order in a divorce proceeding. Insofar as Attorney General's OpinionNo. O-238 is inconsistentwith 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 desertedwives and children,or both, pendente lite, exceptwhere jurisdictionto enter such ordershas, because of a support order in a divorce decree,been acquiredby the District Court. Very truly yours,

NVS:smMr. 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