Mrs. Violet S. Greenhill, 

Division of Child Welfare 

Chief 

State Department of Publia Welfare 

Austin, Texas 

Dear Madam: Opinion No. O-3379 

Re: Does Artiole 604, Penal Code, 

authorize the following procedure; filing a complaint h 

the justice oourt and immediately 

thereafter filing an application 

in the district oourt for the 

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 court make this order thereon, this prooeeding in the distriot court being taken without 

the issuance of a warrant from the 

justioeoourt, hearing in that court 

or aation by the grand jury. 

We acknowledge receipt of your request for the opinion 

of this department wherein you enolosa a letter peoeived by 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 following prooedurer filing a aomplaint in the 

justioe oourt, and immediately thereafter flllng an applioation 

in the diatriot court for the defendant to appear on a certain 

data and show oause why he should not be ordered to provide for 

the support of his wife and ohlldren, and hearing the application and the oourt maktng its order thereon, this prooeedlng in 

the distrdot oourt being taken without the ieeuanoe of a warrant 

from the justioe oourt, hearing in that oourt or aotlon by the 

grand jury? If suoh action is authorized by statute, is the 

statute oonstitutional? 

Artiole 604 of the Penal Code, whioh Is inquired about, 

provides as follows I 

UThe Court during ,Its term, or Judge thereof in 
Mrs. Violet S. Greenhill, page 2, O-3379 

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 may upon hearing thereof 

enter such temporary orders as may seem just, providing 

,for the support of deserted wives 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 this matter our careful consideration 

and you may 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 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, that thereafter, 

at any time before the trial, upon application of the complainant, after notice to the defendant, the court 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. 

It is the further opinion of this department that the 

actual issuance of a warrant for the arrest of the person 

against whom the oomplaint is instituted is not a prerequisite 

to the validity of the complainantrs application for support of 

deserted wives and chjldren or both. However, we are of the 

opinion that the Code of CrLminal Procedure contemplates that 

in the due order of proceeding upon the filing of a complaint 

that a warrarxt~ for~the arrest of tk8 person against whom the 

complaint is made shall be issued forthwith. 

The order of the court providing for the support of 

deserted wives and Children or both, pendente lite, is not a 

criminal proceeding, but same is an ancillary action to a 

criminal prosecution, See Gregory v. 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 interlocutory order from which no 

appeal will lie. 

However, Ff the person against whom suoh oomplaint 

has been instituted and who 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 comply with 

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 oould be reviewed 

in the Court of Criminal Appeals. 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 the person or party against whom 

a complaint has been filed or sn indictment returned contribute 

to the support of said wife and/or children. We find no cases 

holding this statute unconstitutional, nor do we know of any 

provisions of the Constitution which it violates. We are, 

therefore, of the opinion that the statute as above construed 

is valid and enforceable. 

Trusting that this satisfactorily answers your 

request, we remain 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

s/ Edgar W. Cale 

APPROVED MAY 8, 1941 

s/ Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

APPROVED opinion committee 

By BWB, Chairman 

BY Edgar W. Cale 

Assistant 

Ewc:EP/cg