THEA~TORNEYGENERAL 

OF TEXAS 

FVILI. WILSON 

AlToRNEY GENESeptember 15, 1960 

Honorable L. T. Wilson 

District Attorney 

30th Judicial District 

Wichita County Courthouse 

Wichita Falls, Texas 

Opinion No. w-936 

RC3: Construction of Article 602, Penal 

Code of Texas, as amended in 1959, 

Article 602-A and Article 604, Penal 

Code of Texas, pertaining to Wife 

Dear Mr. Wilson: and Child Desertion. 

You have asked this office to construe the following articles of the 

Penal Code of Texas, Article 602 as amended in 1959; Article 602-A; and 

Article 602; all of which pertain to the offense of Wife and Child Desertion, 

and you have asked the following questions: 

1. 

2. 

3. 

4. 

50 

If a husband was living in another state at the 

time that such amendment became effective on August 

10, 1959, and at such time had been failing to 

support his wife and/or children, is he guilty of 

a felony? 

If after August 10, 1959, he goes to another state 

but supports his wife and/or children for a time 

and then fails to support them, is he guilty of a 

felony? 

If a husband and wife are non-residents and the wife 

and/or children come to Texas either as the result 

of a divorce or separation and the husband fails and 

refuses to support them, is he guilty of a feloni? 

Should the pendente lite hearings as authorized by 

Article 604, Penal Code of the State of Texas/ where 

the defendant has not been previously convicted of 

Child Desertion be heard by the County Attorney or 

the District Attorney? 

Should such pendente lite hearings in view of Article 

1970-166a and 166b he heard by the County Court or the 

District Court? 
Honorable L. T. Wilson, Page 2 (w-936) 

Prior to the 1959 amendment, Article 602, Penal Code, read as follows: 

"Any husband who shall willfully desert, neglect, or 

refuse to provide for the support and maintenance of his wife 

who my be in necessitous circumstances, or any parent who 

shall willfully desert, neglect or refuse to provide for the 

support and maintenance of his or her child or children under 

sixteen years of age, lbe 

not more than two years, or be confined in jail for not more 

than six months, or fined not less than Twenty-five ($25.007 

Dollars nor more than Five Hundred ($500.00) Dollars, or be 

punished by both such fine and imprisonment in jail. Acts 1913, 

pi 188, Acts 1929, 41st Leg., p. 427, ch. 195, Sec. 1; Acts 

1931, 42nd Leg., p. 479, ch. 276, Sec. 1." [Emphasis added] 

In 1959, the 56th Legislature amended Article 602, Penal Code, to read as 

follows: 

"Any husband who shall willfully desert, neglect or refuse to provide for the support and maintenance of his wife who 

may be in necessitous circumstances, or any parent who shall 

willfully desert, neglect or refuse to provide for the support 

and maintenance of his or her child or children under eighteen 

years of age, shall be guilty of a misdemeanor, and upon conviction, shall be punished by confinement in the County Jail 

for not more than two years. As amended Acts 1959, 56th Leg., 

p0 504, ch. 222, Sec. 1." [Emphasis added] 

As a part of the same 1959 Act, Article 602-A, Penal Code was also enacted, 

which reads as follows: 

"Any husband who has been convicted of the misdemeanor 

offense of deserting; neglecting or refusing to provide for the 

support and maintenance of his wife who may be in necessitous 

circumstances, or any parent who has been convicted of the misdemeanor offense of deserting, neglecting or refusing to provide 

for the support and maintenance of his or her child or children 

under eighteen years of age, and who shall thereafter willfully 

desert, neglect or refuse to provide for the support and maintenance of his or her child or children under eighteen years of age, 

shall for each and every subsequent such violation be guilty of a 

felony; any husband who shall willfully desert, neglect, or refuse 

to provide for support and maintenance of his wife who may be in 

necessitous circumstances, or any husband who shall willfully desert; 

neglect or refuse to provide for the support and maintenance of his 

child or children under eighteen years of age, and who shall desert 

said wife or children by going into some other state ,, shall be guilty 

of a felony; and upon conviction shall be punished by confinement in 
,. 

Honorable L. T. Wilson, Page 3 (~~-936) 

the County Jail not less than tan days nor more than two 

years, or by confinement in the State Penitentiary for not 

more than five years. Added Acts 1959, 56th Leg., po 504, 

ch. 222, Sec. 1." [Emphasis added] 

On and after August 10, 1959, the offense of Wife and/or Child Desertion 

became a misdemeanor offense under Article 602, Penal Code. The felony offense 

of Wife and/or Child Desertion under Artiole 602-A, Penal Code, may be committed 

in two ways: 

1. A subsequent commission of the~offense of'ChUd 

Desertion by one, who, as a husband, prior to the commission 

of such subsequent offense, has been convicted of the misdemeanor offense of Wife Desertion; or, who, as a parent, 

prior to the commission of such subsequent offense, has been 

convicted of the misdemeanor offense of Child Desertion; 

2. The offense of Wife and/or Child Desertion by a 

husband, coupled with the aggravating circumstance of deserting said wife or children by leaving the State of Texas and 

by going into some other state. 

Bear in mind thatevely offense of Wife and/or Child Desertion will be a 

misdemeanor under Article 602, Penal Code, and will be tried as a first offense, 

regardless of the number of prior convictions of the same offense, unless the 

indictment charges a prior conviction, or charges the aggravating circumstances 

of leaving the State of Texas and going into some other state, so as to make the 

offense a felony and bring it within the provisions of Article 602-A, Penal Code. 

Article 13, Penal Code, reads as follows: 

"When the penalty for an offense is prescribed by one 

law and altered by a subsequent law, the penalty of such second 

law shall not be inflicted for an offense committed before the 

second shall have taken effect. In every ease the accused shall 

be tried under the law in force when the offense was committed, and 

if convicted punished under that law; except that when by the provisions of the second law the punishm.ent is ameliorated he shall be 

punished under the second unless he elect to receive the penalty 

prescribed by the law in'force when the,offense was committed." 

Article 14, Penal Code, reads as follows:, 

"When by the provisions of a repealing statute a new penalty 

is substituted for ah offense punishable under the law repealed, 

such repealing statute shall not exempt from punishment a person who 

has offended against the repealing law while it was in force, but in 

such cases the rule prescribed in Article 13 shall govern." 
Honorable L. T. Wilson, Page 4 (w-936) 

Note that the old law was applicable to desertion of a child or children 

under sixteen years of age, whereas under the 1959 amendment such offense is 

applicable to a child or children less than eighteen years of age. 

Under Article 602, Penal Cods, prior to the 1959 amendment, the offense 

was what is sometimes termed a "mixed felony," that is, it provided for a possible penitentiary sentence , or in the alternative a jail sentence or a fine, or 

a combination of fine and jaii sentence. Under Article 602, Penal Code, as 

amniied in 1959, the offense became a misdemeanor, punished by jail sentence 

0nIy. The minimum sentence under Article 602, P. C., as amended, is 10 days 

in the County Jail, whereas under Article 602, P. C., prior to the amendment, 

there was no minimum. However, the punishment under the 1959 amendment has 

been ameliorated, since neither a penitentiary sentence nor a fine is now prescribed, and Article 602-A, P. C., is a felony as compared to the present Article 

602, P. c., which is a misdemeanor. Hall v. State,lll Tex. Crim. 381, 12 S.W. 

2d 1024 (1928); Kendall v. State, 55 Tex. trim. 139, 114 S.W. 833 (1908); 

Sheppard v. State,, 145 ,Tex. Crim. 99, 166 S.W. 2d 346 (1942); Lee v. State, 115 

Tex. Grim. 429, 28 S.W.2d 559 (1930). 

The statement in your first question presumes that the Defendant will be 

charged with the offense of Wife and/or Child Desertion, with the date of the 

alleged offense fixed at some date prior to August 10, 1959. If the alleged 

offense is desertion of a child or children who has or have reached his or their 

16th birthday on the date of the alleged offense, and the date of the alleged 

offense is prior to August 10, 1959, then the defendant cannot be convicted 

under the old law because such law was applicable only to desertion of children 

under sixteen years of age, and he cannot be convicted under the new law since 

it was not effective until August 10, 1959. Article 10, Penal Code. 

With the above explanation of special conditions, we answer your First 

Question by saying that such an offense should be charged as a misdemeanor, 

since the defendant is entitled to the benefits of the lesser possible punishment, as provided in Article 13, Penal Code. The case can only be raised to a 

felony by the defendant electing to be tried under the old law, and the defendant 

cannot make an election until he has been charged and arrested. As a matter of 

convenience, it is recommended that in this special type situation, that the 

matter be handled through the grand jury by way of indictment, even though ire 

hold the offense to be a misdemeanor. This is for the reason that if the defendant be charged by complaint and information he may elect to be tried under 

the old law (which is EL felony), for the purpose of delay or for other reasons, 

leaving the state without an indictment upon which to proceed. If returned 

into the district court as a misdemeanor indictment, such indictment would of 

course be transferred from the district court to the county court; and if the 

defendant thereafter elected to be tried under the old felony law~(Article 

602, P. c., prior to the 1959 amendment), the case would be retransferred back 

to the district court. 

Your Second Question raises the issue of whether or not the offense could 

be raised to a fEocy by deserting said wife and/or children by leaving the state, 
Honorabk L. T Wilson, Page 5 (w-936) 

so as to bring the offense within the provisions of Article 602-A, Penal 

Code. The intent to desert must concur with the act of leaving the state 

in order to bring the case within the provisions of Article 602-A, Penal 

Code. 12 Tex. Jur. Section 31, and cases cited therein. Under the facts 

set forth in your letter, we hold, in answer to your Second Question, that 

the offense would be a misdemeanor under Article 602, Penal Code. 

In answer to your Third Question, we hold that the offense would be a 

misdemeanor,.since under the facts set forth in your letter, the husband has 

never left the State of Texas; in fact, he has never been in Texas so as tom' 

be able to leave it. 

At the time Article 604, Penal Code was enacted, there was only one 

offense of Wife and/or Child Desertion, Article 60k, Penal Code, before the 

1959 amendment. Such an offense was then a felony. Article 604, Penal Code, 

which was not changed by the 56th Legislature, reads as follows: 

"The Court during its term, or Judge thereof in vacation 

after the filing of complaint 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'gtve 

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, pendente 

lite, and may punish for the violation or refusal to obey such 

order as for contempt. Acts 1913, p. 188; Acts 1931, 42nd Leg., 

p. 58, ch, 38, Sec. 1." 

In 1939, the Attorney General's Department in Opinion No. o-238 held 

that the District Court had exclusive jurisdiction to hear an application of 

complainant for support pendente lite under Article 604, P. C., and that since 

the action was civil in nature, although ancillary to criminal prosecution, 

there was no authority to require the District Attorney to file such application for the complainant. Opinion No. o-238, cited Gregory v. State, 120 Tex. 

Crim. 499, 47 S.W.2d 838 (1932). At the time such opinion was written, the 

offense of Wife and/or Child Desertion (Art. 602, P. C., prior to the 1959 

amendment) was a felony, and could only be tried in the district court. Wife 

and/or Child Desertion is now a misdemeanor, and under certain circumstances, 

as discussed above, is a felony. The District Court has exclusive jurisdiction 

in all felony cases. Section 8, Article V., Constitution of Texas. Except in 

those counties where the original criminal jurisdiction of the County Court has 

been by statute vested in some other court, this type of misdemeanor would fall 

within the jurisdiction of the County Court. Section 16, Article V., Constitution of Texas. In Gregory v. State, m, it was held that the order for support 

pendente lite was only interlocutory in nature, and ancillary to the criminal 

prosecution. Only the court in which the main case is pending can issue an 

ancillary, interlocutory order. We hold, therefore, in answer to your Fourth 
Honorable L. T. Wilson, Page 6 (w-936) 

Question, that under the facts stated in your letter, the case would be a misdemeanor; and as such, the main case would be pending in the County Court (vexcept where the original criminal jurisdiction of the County Court had been 

changed by statute, and vested in some other court). The County Attorney, where 

such office exists in a county, is charged by law with prosecuting all misdemeanor cases in the County Court. However, we have examined the Constitution 

of Texas, the civil statutes and the Code of Criminal Procedure, with respect to 

the duties of the County Attorney, and do not find any duty imposed on the County 

Attorney to represent the complainant at the pendente lite hearing provided for 

in Article 604, P. C., since such hearing is civil in nature. 

By the Acts 1933, 43rd Legislature, Special Laws, p. 86, ch. 65, Section 

l-A, now found 3.n Vernon's Annotated Civil Statutes of Texas as Article 1970- 

166a, the County Court of Wichita County at Law was abolished, and all matters 

and causes, civil and criminal, original and appellate, were transferred to the 

County Court of Wichita County. 

By the Acts 1935,, 44th Legislature, p. 113, ch. 40, now known as Article 

197o-166b, V.A.C.S. of Texas, the County Court of Wichita County was left with 

its general criminal jurisdiction, both original and appellate, and the general 

jurisdiction of Probate Courts, but was deprived of its civil jurisdiction; The 

jurisdiction "in all matters and cases of a civil nature" formerly conferred upon 

the County Court of Wichita County was by this Act conferred on the District 

Courts of Wichita County. While it is true that Gregory V. State, supra, holds 

that a hearing under Article 604, P. C., is civil in nature, it also holds that 

the remedy thereunder is ancillary to the main case. King & King et al Y. Porter 

et, 113 Tex. 198, 252 S.W. 1022. In Simman@; 

Company et al, 102 Tex. 39, 112 S.W. 1044, the plaintiff Simmang recovered a 

judgment against on-e~Geise for about $600.00, S.tl ~OUIlt within the concurrent 

jurisdiction of the district court. The insurance comuany owed Geise on a fire 

&cy the sum of $31,4 20. Simmang then sued out a writ bf garnishment against 

the insurance company in the same district court where he had cbtained the judgment for $314.20, an amount within the exclusive jurisdiction of the county court. 

The Supreme Court of Texas in the Simmang case stated at page 1045: 

"The garnishment proceeding is not an original suit, but 

ancillary to the judgment of the district court, . . . Therefore, 

the garnishment could not have been sued out from any other court 

than that ;n which the judgment was rendered." 

Article 604; Penal Code, was enacted so that the court where the case is 

pending shall have the power to hold the hearing for support pendente‘lite; and 

such hearing is an ancillary proceeding. We hold, therefore, in answer to your 

Fifth Question, that where the case is a misdemeanor pending in the County Court 

of Wichfta County, only that court has the power to hold the hearing and issue 

the orders for temporary support contemplated by Article 604, Penal Code. 
. . 

. _ 

Honorable L. T. Wilson, Page 7 (w-9%) 

SUMMARY 

1. A husband living in another state at the time of the 1959 

amendment to Article 602, P. C., and who had been failing 

to support his wife and/or children prior to the amendment 

should be charged with a misdemeanor, since he is entitled 

to the benefits of the lower penalty prescribed by the 

amendment. 

2. A husband, who, after Article 602-A, P. C., became effective 

in 1959, goes to another state, but supports his wife and/or 

children for a'time and subsequently fails to support them, 

should be charged with a misdemeanor under Article 602, P. C., 

since he did not desert his wife and/or children by leaving 

the state, in order to make his offense a felony under Article 

6024, p. c. 

3. A husband, who fails to support his wife and/or children, but 

who is a non-resident, but whose wife and/or children move to 

Texas after a divorce or separation, and which husband continues to fail to support such wife and/or children, should 

be charged with a misdemeanor under Article 602, P. C., since 

he did not desert his wife and/or children by leaving the state, 

in order to make the offense a felony under Article 602-A, P. C. 

4. Where the Wife and/or Child Desertion case is pending in the 

County Court, the pendente lite hearing authorized by Article 

604, P. c., will be heard by such County Court, but the County 

Attorney has no duty to represent the claimant. 

5. The pendente lite hearing authorized by Article 604, P. C., is 

civil in nature, and although the civil jurisdiction of the County 

Court of Wichita County has been transferred by Article 1970-166b 

V.A.C.S.T. to the District Court of Wichita County; nevertheless, 

if the main case is pending as a misdemeanor in the County Court 

of Wichita County, such county court has exclusive jurisdiction 

to conduct such hearing, since the hearing is ancillary to the 

main case. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

RILEY FUG&E FL&HER 

Assistant 
Honorable L. T. Wilson, Page 8 (WW-936) 

APPROVED: 

OPINION COMMIX'TEE 

W. V. Geppert, Chairman 

C. Dean Davis 

Robert G. Scofield 

Elmer McVey 

Gordon Cass 

REVIEWED FORTHEATTORNEY GENERAL 

BY: Leonard Passmore