**AKlsTaN 111.**  **TExaca**
**WILL wILsoN**  **Ax-rORNEY GE:NElG%E**  November 28, 1961
Opinion No. WW-1201 Mr. W. Gail Walley Re: Questionsarising Acting CriminalDistrictAttorney under the Uniform Jefferson County ReciprocalEnforceBeaumont,Texas ment.of.Support Act (Art. 2328b, Vernon's Dear Mr. Walley: Civil Statutes)
You have requestedan opinion from this office regarding the following questions. The questionsand our opinions are set out below. "(1) Is the DistrictAttorney comnelledby statute to act as petitioner's representative in any case where petitionerresides in his district;but where circumstances do not warrant the filing of a criminal charge of non-support? "(2) Is the DistrictAttorney compelledb statute to act as petitioner'srepresentat ve -3 in any case where petitionerresides in his district,but where petitioner **IS** able to retain private counsel to file the reciprocal support action?" This office is unable to find any language in Article 2328b of Vernon's Civil Statuteswhich compels the District Attorney to represent the petitionerwhen the petitioner resides in his district. Where circumstances do not warrant the filing of a criminal charge under Section.11of the Uniform ReciprocalEnforcementof Support Act, the action is civil in nature and the DistrictAttorney is not compelled to represent the petitioner. (SeeAttorney General'sOpinion v-1409).

"(3) Section 8 of the Act provides 'Where the action is broughtby or through the State or an agency thereof, there shall be no filing fee. It has been brought to the attention of this office that at least one DistrictAttorney in this state refuses to file a reciprocalaction without prepaymentof filing fee,regardless of the circumstances

of the petitioner,on the grounds that the District Clerk has the right, and exercises the right, to challengeany and all

### Mr. w. G. Walley, page 2 (WW-1201)

pauper's oaths. Does the District Clerk have the right to demand or challengea pauper's oath in any reciprocalcase filed through the office of the DistrictAttorney?" Section 8 of Article 2328b-3 is as follows: Vhenever the State or a political subdivision thereof has furnished support to an obligeeit shall have the same right to invoke the provisions hereof as the obligee to whom\the support was furnished for the purpose of securing reimbursement

of expenditures

so made. "When the Petition is filed in the District Court of this State, it shall be accompanied by a filing fee or a pauper'saffidavitwhich the Court may in its discretionaccept in. lieu of the filing fee; provided,however, that the Court of this State, acting either as an initiatingor respondingState, may in its discretion,direct that any part of or all of the fees or costs incurred in this State shall be paid by the county. Where the action is brought by or through the State or an agency thereof, there ,shall be~no filing fees;" ;s2amendedActs 1953, 53rd Leg., p.907, ch. 374,

. It is the opinion of this office in the event the action is brought by or through the State or an agency thereof that there shall be no filing fee, as provided in Section 8, Article 2328b. If an action is filed by an individual,it is within the discretionof the judge of the court to,,accept the pauper's affidavit in lieu of the filing fee. The court may, in its discretion,direct that any part of or all the fees or costs incurred in this State shall be paid by the county.

“(4) Does the Criminal~District Court of Jefferson County, Texas, have jurisdictionin cases filed under the provisionsof the Uniform ReciprocalEnforcementof Support Act?" Article 52-160a confers jurisdiction upon the Criminal District Court of Jefferson County in civil suits, causes, and matters involving:

"(1) Divorce, 88 provided in Chapter 4, Title 75, of the Revised Civil Statutes of Texas of 1925, and any amendmentsthereof, heretoforeor hereaftermade thereto;. .

Mr. W. G. Walley, page 3, (WW-1201)

"(2) Dependentand delinquent children, as provided in Title 43, Revised Civil Statutes of Texas of 1925, and any amendments thereof,heretofore or hereaftermade thereto;" The above mentionedTitle 43 and 75 are the provision8 covering all matters of divorce and dependentand delinquentchildren. It la the opinion of this office that 52-16Oagives jurisdiction to the CriminalDistrict Court of Jefferson County to act on cases filed under the provisions of the Uniform ReciprocalEnforcementand Support Act.
Your letter further states:

"As a result of the decisiou in Freeland vs. Freeland, 313.SW2d 943 (Tex. Civ.App.1958, no writ history), certain questionshave arisen as to the jurisdiction of the district court and the duties of the district attorney as petitioner's

representative

where petitioner no longer resides in the districtwhere the divorce and support award were granted. These questionsare as follows: "(5) Must a petitionerreturn to the county where divorce and support award were granted to file for support under the uniform support act? Or may petitionerfile in any district court where such petitionerand children for .nhomsupportwas awarded currentlyreside? "(6) If the answer to questionnumber five (5) is that only the district court where divorbe and supportwere awarded has jurisdiction~as petitioningcourt, is the DistrictAttorney in the districtwhere the divorce ,andsupport were awarded comnelled& statute to represent a petitionerwho is not a resident of his district in the following circumstances: "(a) Where facts justify the filing of a criminalnon-supportcharge in the county where the divorce was granted? l*(b) Where facts do not justify the filing of a criminalnon-supportcharge in the county where the divorce was granted? "(c) Where the non-residentpetitioneris able to employ private counsel to file the support action?".

Mr. W. G. Walley, page 4, (WW-1201)

In answer to your questionnumber.5we refer you. to Attorney General'sOpinion No. WW-784. This opinion, which we reaffirm,holds that the petitioner must return to the court where divorce and support award were.granted to file for support under the Uniform SupportAct. The court which granted the original divorce and support award has the sole jurisdictionto enforce its decrees, Therefore, a criminal charge under the reciprocal support act must be filed in that court; However, a criminal charge undoer Articles 602, 602-A, and 603, V.P.C. must be filed in the county where the abandonmentoccurred or in the county where the wife or child resided forsix months next preceeding the filing of the indictmentor information.
In reference to your questionnumber 6 Article 25 Code of CriminalProcedure,this reads as follows:

"Each district attorney shall represent the State in all criminal cases in the district courts of his district, except in cases where he has been, before his election,em loyed adversely. When any.criminal procee %ing is had before an examiningcourt in his-district or before a judge upon habeas corpus, and he is not notified of the samsand : 'IS' ~' at the time within.the county where such proceedingis had, he shall represent the State therein, unless preventedby other official duties." The duty of the DistrictAttorney to file a criminal non-supporteharge is the same as his duty to file any other criminal charge called to his attention.
We answer your questionsnumber 6(b) and 6(c) in the negative because such proceedingsare ~1~11 in nature.
SUMMARY
A district attorney is not compelledby statute to act as Petitioner's representative

in a civil action under the Uniform ReciprocalEnforcement of SupportAct. The District Judge and not the District Clerk has the discretionto accept a pauper'saffidavit in lieu of a filing,fee, but the District Clerk may challengethe oath.~~ The Criminal District Court of Jefferson County has jurisdiction

over ,cases

filed under the provisions of the Uniform ReciprocalEnforcementof Support Act. A Petitionermust return to the County where his divorce was granted to file for support under the Uniform ReciprocalEnforcementMr. W. G. Walley, page 5, (w-1201)

of Support Act. The duty of the DistrictAttorney to file a criminalnon-supportcharge under the Uniform ReciprocalEnforcementof Support Act is the same as his duty to file any other criminal charge called to his attention.
Yours very truly,
WILL WILSON 

# B $uLuLJ. T. Walker AssistantAttorney General JTW:bjh
APPROVED:
OPINION COMMITTEE: W. V. Geppert, Chairman Gordon Cass Jack Price Norman Suares Riley Eugene Fletcher
REVIEWED FOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr.