Mrs. Violet S. Greenhill,

Division of Child Welfare Chief

State Department of Publia Welfare Austin, Texas

Dear Madam: OpinionNo. O-3379 Re: Does Artiole 604, Penal Code, authorize the followingprocedure; filing a complaint h the justiceoourt and immediately thereafter filing an application in the district oourt forthe defendant to appear on a certain date and show oause why he should not be ordered to provide for the support of his wife and children, and hearing the application and the courtmake this order thereon, thisprooeeding **in** the distriot court being takenwithout the issuance of a warrant from the justioeoourt,hearing **in** that court
or aationby the grand jury.

We acknowledge receipt of yourrequest for the opinion of this departmentwherein you enolosa a letterpeoeivedby you from Mr. Fred Ward, Chief Probation Officer, Juvenile Court,Hall of Hsoords, Dallas, Texas, in which the following question is raised: Does Artlole 604, Penal Code of the State of Texas, authorize the followingprooedurer filing a aomplaint in the justioeoourt, and immediately thereafter flllng an applioation in the diatriot court for the defendant to appear on a certain data and show oause why he shouldnot be ordered to provide for the support of his wife and ohlldren, and hearing the application and the oourtmaktng its order thereon, this prooeedlng in the distrdot oourt being takenwithout the ieeuanoe of a warrant from the justioeoourt,hearing in that oourt or aotlon by the grand jury? If suoh action is authorizedby statute, is the statute oonstitutional?

Artiole 604 of the Penal Code,whioh Is inquired about, provides as followsI

UThe Court during ,Itsterm, or Judge thereof inMrs. Violet S. Greenhill,page 2, O-3379

vacation after the filing of complaint against or after the return of indictmentof any person for the crime of wife, or of child, or of wife and child desertion shall upon application of the complainantgivenotice to the defendant of such application andmay uponhearing thereof enter such temporary orders as may seem just,providing ,forthe support of desertedwives and children or both, pende~nte

lite, and may punish for the violation or refusal to obey such order as for aontempt."

We have given thismatter our careful consideration and youmay be advised that it is the opinion of thLs department that Article 604 of the Penal Code of the State of Texas contemplates that after the filing of the complaintagainst or after the return of indictment of any person for the crime of wife,
or of child, or of wife and child desertion, that thereafter, at any time before the trial, upon application of the complainant, afternotice to the defendant, the courtmay upon hearing thereof enter such temporary orders as may seem just,providing for the support of desertedwives and children or~both,pendente lite, and may punish for the violation or refusal to obey such order as for contempt.

It is the further opinion of this department that the actual issuance of a warrant for the arrest of the person againstwhom the oomplaint is instituted is not a prerequisite to the validity of the complainantrsapplication for support of desertedwives and chjldren or both. However, we are of the opinion that the Code of CrLminalProcedure contemplatesthat in the due order of proceeding upon the filing of a complaint that a warrarxt~

for~the arrest of tk8 person againstwhom the complaint ismade shall be issued forthwith.

The order of the courtproviding for the support of desertedwives and Children or both, pendente lite, isnot a criminalproceeding,but same is an ancillary action to a criminalprosecution, See Gregoryv. Sta;e, 41 S. W. (2d) 838, Russell v. State, 37 Tex. Crim.Rep. 503. Suoh an action is not appealable from the district court to the Court of Criminal Appeals for same is only an interlocutoryorder fromwhich no appealwill lie.

However, Ff the person against whom suoh oomplaint has been institutedandwho is ordered by the court to comply with the order of said court and to contribute to the support of a child or wife or both, refuses to abide and complywith such order and is oomoitted to jail in contempt of the **CoUrt ’** **S** order, the courts have held that such person can seek relief by habeas corpus prooeedings and in the event that relief is denied that the aotion of the distriot court oouldbe reviewed in the Court of CriminalAppeals. See 8x parts McWhorter, 45 5. W. (26) 977.ma. Violet S. Greenhill,page 3, O-3379

Over a long period of time the courts of this State have issued orders requiring in cases of child desertion or wife desertion or both, that theperson or party againstwhom
a complainthas been filed or sn indictmentreturned contribute to the support of saidwife and/or children. We findno cases holding this statute unconstitutional,nor do we know of any provisions of the Constitutionwhich itviolates. We are, therefore, of the opinion that the statute as above construed is valid and enforceable.

Trusting that this satisfactorilyanswers your request,we remain

Yours very truly

ATTORNEY GENERAL OF TEXAS

s/ Edgar W. Cale

APPROVED MAY 8, 1941 s/ Grover Sellers FIRSTASSISTANT ATTORNEY GENERAL

APPROVED opinion committee By BWB, Chairman BY Edgar W. Cale Assistant



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