Hon. Don Nugetit

Dlstrlct~~Attornel 109th Judi&el' Diatrlct~: P:O. BOX 1076 ~.' Kermit, Texas OpinionNo. c-634
Re: Questions relating to the ~clvlland criminal enforcement of support orders, and to Article 2328b-4,Vernon's Civil Statutes, Acts 59th Legislature, 1965, Chi 679, 'page1561, ,thenew Texas 'UniformReciprocal Enforcement of Subport'Act. 

### war Mr.Nug&t’:.’ ,~ :.I I:.’ You:-hatiti.tiei@etited our oplnlon as to the answers to questions'-rel%ting,to;,fne. civll~'iand~criminal enforcement of support order&'andj.to.Artlcle 2328b-4,‘Vernon'.s 'CivilStatutes, Acts. 59th Legislature, 1965, Ch. 679, page~l561, the new Texas Unlf+r@'Reciprocal &$orcemen$ of Support Act.

,~, ., Your"'firiet'j..q~estlon'may be stated as follows:

to,subjeot the defendant to~.suchterms ,and 'ccdn'd~tiona~sas'~he~ cotitmay deem proper to ~aiih.i~~~cc&i@f.afio'e wth its 

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-3078-. ,

Hon. Don Nugent. page 2 (C-634)


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extent as is provided by law for contempt of the court In any other suit or proceeding cognizableby the court." (Emphasis supplikd) The above quoted portion of Article 2328b-4 reveals that the Legislature did not contemplate that a secondpetltlon from the 'lnltiatlngstatewould be necessary In order for the Texas court ,toenforce Its order by contemptproceedings.

Your remaining questions are set out In the body of your request as Sbllows:

"II. The new law suggestedperhaps that before a criminal complaint is fll.ed and extradition a.pplied for that there shouldhave been resort to the civil portion of thlB act at least ninety days before the criminal action is initiated. "1. My question is shouldwe as a matttirof form resort to the civil action first, then wait ninety days before filing the criminal complaint and asking for extradition?

‘l.2. My next question 1s FS, In fact, we make application for extraditionwl.thout the prior civil actionbeing Inaugurated and the extraditionpapers are approved and signedby the Governor, Is It safe to assume that the ninety day compliancewill not be required? There is no ninety day period mentioned In Article 2328b-4 in the connection which you Buggest. However, Section 5 of Article 2328b-4 does allow the Governor to seek extradition to enforce supportpar ents due Texas resldenta, and Section 6 of Article 2328b- provides as follows:

"sec. 6. (a) Before making the demand on the Governoi.of any other state for the surrender of a person charged In this State with the crime of falling to provide for the support of any person, the Governoti of thls Statemay require any prosecuting attorney of this State to satisfyhim that at least

-3079-Ron. Don Nugent, page 3 (c-634)

sixty (60) daysprior thereto the obligee brought an action Sdr'thesupport under this Act, or that thebringing of an action would be of no avail. '(b) When under this or a substantially similarAct, a~demand Ismade upon the Governor of this State by the~Governorof another state for the surrenderof a person charged in the other 8tat.e

wl.ththe crime of falling to brovlde support, the Governormay call upon any prosecuting attorney to Investigate or assist in Investigatingthe demand, and to report to him whether any action for support has been brought under this Act or would be effective. "(c) IS any action for the supportwould be effectiveand no action has been brought, the Governor may delay honoring the demand for a reasonable time to permit prosecution of an action for support. "(d) If an actions for support has been brought and the person demanded has prevailed in that action, the Governormay decline to honor the demand. "(e) If an action for supporthas been brought and pursuant thereto the person demanded **Is** subject to a support order, the Governor may decline to honor the demand 80 longas the person demanded,ls~complylngwith the support order." Criminal and extraditionproceedings proved highly unsatisfactory as a method of enforcing child support against a defendantwho crossed state lines; hence the enactment of the uniform reciprocal enforcement of support legislation by the states. It was primarily for this reason that theNational Conference of Commissionerson Uniform State Laws and the American Bar Association recommended to the states the adoption of said Act. Commissioners' PrefatoryNote to the Uniform Reciprocal Enforcement of Su port Act, Handbook of Commissioners :onUniform State Laws, (19507,page 171. The purpose of Article 232tlb-4

and analogous legislation adopted by other states, as shownby the Commissioner's Prefatory Note to the Model Act, supra,was not to punish a defendant, but to force him tomeet his legal obligations to supporthis dependants. Jailing the Defendant or extraditinghim does not directly

-3080-Hon. Don Nugent, page 4~ (C-634)

serve thepurpose of supporting the dependants or of relieving the states from a burden on their welfare rolls. Therefore, the criminal sectionsof Article 23?8b-4'were Intendedonly to be used If the bringing of a o1vll action would be of no avail, or after civil action has felled to produce results.

It Is our opinion that, Inmost Instances, It wouldbe advisable to bring a civll'actlonbefore crlmlnal extradition proceedingsare brought - not as a matter of form, but because by a civilproceeding the purpose of Article 2328b-4 18more directly served.

The Governor In his discretionneed not reaulreprior resort to the civil courts as a conditionprecedent to his honoring the demand for extradition. However, If a civil action Isnot brought you may not safely assume'that extraditionwill be honored, since the Governor of a responding state,acting under legislative enactments similar to Article 2328b-4 may require an attempt to be made tc secure relief througha civilactionbefore he will honor the demand for extradition.

1.

2. SUMMARY Having entered an order under Article 2328b-4,V.C.S., aga1nst.a looal resident to enforce a support order of an out-of-state court, theT!eXaSCourt may.enSorce that order - through contempt proceedings if necessary - on its own motion and without a new complaint being filed by the initiating state. Smooth processing of an action upon extraditionpapers filed under Artlole 2328b-4,V.C.S.,,canbest be obtained if a bona fide attempt to collectback payments by civil processunder the olvll sections of Article 2328b-4 has proceeded the filing of extradition papers by a period of at least sixty days. Very truly yours,

WAGGCNFR CARR Attorney General of Texas

-3081-Ron. Bon Nugent, page 5 (C-634)

B orney General
LJC:om APPROVED: OPINION COMMITTEE
W. V. Geppert, Chairman Sam Kelley Douglas Chllton JohnBanks Charles Bardwell APPROVED FOR THE ATTORNEY GENERAL By: T. B. Wright

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