# THEA~TORNEYGENERAL

OF TEXAS

FVILI. WILSON AlToRNEY GENESeptember 

### 15,1960

Honorable L. T. Wilson DistrictAttorney 30th Judicial District Wichita County Courthouse Wichita Falls, Texas OpinionNo. w-936

RC3: Constructionof 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 

### 602as 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 onAugust 10, 1959, and at such time had been failing to supporthis wife and/or children, is he guilty of
a felony?

If afterAugust 10, 1959, he goes to another state but supportshis 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-residentsand the wife and/or children come to Texas either as the result of a divorce or separationand the husband fails and refuses to support them, is he guilty of a feloni?

Should the pendente lite hearings as authorizedby Article 604, Penal Code of the State of Texas/ where the defendanthas not been previously convicted of Child Desertion be heard by the CountyAttorney or the DistrictAttorney?

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 husbandwho shallwillfully desert, neglect, or refuse to provide for the supportand maintenance of his wife who my be in necessitous circumstances,or any parent who shallwillfully desert, neglect or refuse to provide for the supportand maintenance of his or her child or childrenunder sixteenyears of age, lbe not more than two years, or be confined in jail for not more than sixmonths, or finednot less than Twenty-five ($25.007 Dollars nor more than Five Hundred ($500.00)Dollars, or be punished by both such fine and imprisonmentin 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." [Emphasisadded]

In 1959, the 56th LegislatureamendedArticle 

### 602,Penal Code, to read as follows:
"Any husbandwho shallwillfully desert,neglect or refuse to provide for the supportand 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 childrenunder eighteen years of age, shallbe guilty of a misdemeanor,and upon conviction, shall be punishedby confinement in the County Jail for not more than two years. As amendedActs 1959, 56th Leg., p0 504, ch. 222, Sec. 1." [Emphasisadded]

As a part of the same 1959Act, 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 supportand maintenance of his or her child or children under eighteenyears of age, and who shall thereafterwillfully desert,neglect or refuse to provide for the supportand maintenance of his or her child or childrenunder eighteenyears of age, shall for each and every subsequent suchviolation be guilty of a felony; any husband who shallwillfully desert,neglect, or refuse to provide for supportand maintenance of his wife who may be in necessitous circumstances,or any husbandwho shall **willfully** desert; neglect or refuse to provide for the supportand maintenance of his child or childrenunder eighteenyears of age, and who shall desert saidwife or childrenby going into some other state,,shallbe guilty of a felony; and upon conviction shallbe 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, 

### 56thLeg.,po 

### 504, ch. 222, Sec. 1." [Emphasisadded]

On and afterAugust 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 underArtiole 602-A, Penal Code, may be committed in two ways:

1. A subsequentcommission of the~offenseof'ChUd Desertion by one, who, as a husband,prior to the commission of such subsequentoffense,has been convicted of the misdemeanor offense of Wife Desertion; or, who, as a parent, prior to the commission of such subsequentoffense, has been convicted of the misdemeanor offense of Child Desertion;

2. The offense of Wife and/or Child Desertionby a husband, coupledwith the aggravating circumstanceof deserting saidwife or childrenby leaving the State of Texas and by going into some other state.

Bear in mind thatevely offense of Wife and/or Child Desertionwill be a misdemeanor under Article 

### 602,Penal Code, and will be tried as a first offense, regardless of the number of prior convictionsof 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 prescribedby one law and altered by a subsequent law, the penalty of such second law shall not be inflicted for an offense committedbefore the second shall have taken effect. In every ease the accused shall be tried under the law in force when the offensewas committed,and if convictedpunished under that law; except that when by the provisions of the second law the punishm.ent is amelioratedhe shallbe punishedunder the second unless he elect to receive the penalty prescribedby the law in'forcewhen the,offensewas committed."

Article 14, Penal Code, reads as follows:,

"Whenby the provisions of a repealing statute a new penalty is substituted for ah offense punishableunder the law repealed, such repealing statute shallnot 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 sixteenyears of age,whereas under the 1959 amendment such offense is applicable to a child or children less than eighteenyears of age.
Under Article 602, Penal Cods, prior to the 1959 amendment, the offense
was what is sometimestermed a "mixed felony," that is, it provided for a possible penitentiary sentence, or in the alternativea jail sentence or a fine, or a combinationof fine and jaii sentence. UnderArticle 

### 602,Penal Code, as amniiedin 1959, the offensebecame a misdemeanor,punished by jail sentence 0nIy. The minimum sentenceunderArticle 

### 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 punishmentunder the 1959 amendmenthas been ameliorated, sinceneither a penitentiary sentencenor a fine is now prescribed, and Article 602-A, P. C.,is a felony as compared to the presentArticle 

### 602,P. c., which is a misdemeanor. Hall v. State,lllTex. Crim. 

### 381,12 S.W. 2d 1024 (1928);Kendall v. State, 

### 55Tex. 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 questionpresumes that the Defendantwill be chargedwith the offense of Wife and/or Child Desertion,with the date of the allegedoffense fixed at some date prior to August 10, 1959. If the alleged offense is desertion of a child or childrenwho 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 cannotbe convicted under the old law because such law was applicable only to desertion of children under sixteen years of age, and he cannot be convictedunder the new law since it was not effectiveuntil 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 shouldbe 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 cannotmake an electionuntil he has been chargedand 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 chargedby complaintand informationhe may elect to be tried under the old law (which is ELfelony), for the purpose of delay or for other reasons, leaving the statewithout an indictmentupon which to proceed. If returned into the district court as a misdemeanor indictment, such indictmentwould 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 retransferredback 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 childrenby 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 desertmust concurwith 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 misdemeanorunder Article 602, Penal Code.

In answer to your Third Question,we hold that the offensewould be a misdemeanor,.sinceunder the facts set forth in your letter, the husband has
never left the State of Texas; in fact, he has never been inTexas 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 offensewas then a felony. Article 604, Penal Code, which was not changedby the 56th Legislature,reads as follows:

"The Court during its term, or Judge thereof in vacation after the filing of complaintor after the return of indictment of any person for the crime of wife, or of child, or of wife and child desertion shallupon application of the complainant'gtve notice to the defendant of such applicationand may 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. Acts 1913, p. 188; Acts 1931, 42nd Leg., p. 

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

In 1939, the Attorney General'sDepartment in OpinionNo. o-238 held that the District Court had exclusive jurisdictionto hear an application of complainant for supportpendente lite under Article 604, P. C., and that since the action was civil in nature, although ancillary to criminalprosecution, there was no authority to require the DistrictAttorney 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 opinionwas 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 discussedabove, is a felony. The District Court has exclusive jurisdiction in all felony cases. Section 

### 8,Article V., Constitution of Texas. Except in those countieswhere the original criminal jurisdictionof the County Court has been by statutevested in some other court, this type of misdemeanorwould fall within the jurisdictionof 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, interlocutoryorder. We hold, therefore, in answer to your FourthHonorable L. T. Wilson, Page 

### 6 (w-936)

Question, that under the facts stated in your letter, the casewould be a misdemeanor; and as such, the main casewould be pending in the County Court (vexcept where the original criminal jurisdictionof the County Court had been changedby statute,and vested in some other court). The CountyAttorney, where such office exists in a county, is chargedby law with prosecutingall misdemeanor cases in the County Court. However, we have examined the Constitution of Texas, the civil statutes and the Code of CriminalProcedure,with respect to the duties of the CountyAttorney, and do not find any duty imposed on the County Attorney to represent the complainantat the pendente lite hearingprovided 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 ofWichita 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 jurisdictionof Probate Courts, but was deprived of its civil jurisdiction; The jurisdiction "in all matters and cases of a civilnature" formerly conferredupon the County Court of Wichita County was by this Act conferred on the District Courts of Wichita County. While it is true that GregoryV. State, supra,holds that a hearing underArticle 

### 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, 113Tex.198,252S.W.1022. In Simman@; Company et al, 102 Tex. 

### 39, 112 S.W. 1044, the plaintiff Simmang recovered a S.tl ~OUIlt within the concurrent judgment against on-e~Geise for about $600.00, jurisdictionof the district court. The insurancecomuany owed Geise on a fire &cy the sum of 

### $31,4 20. Simmang then sued out a writ bf garnishmentagainst the insurance company in the same district courtwhere he had cbtained the judgment for $314.20, an amount within the exclusive jurisdictionof the county court. The Supreme Court of Texas in the Simmang case statedat page 

### 1045:

"The garnishmentproceeding is not an original suit,but ancillary to the judgment of the district court,

. . . Therefore, the garnishment couldnot have been sued out from any other court than that ;n which the judgmentwas rendered."

Article 

### 604;Penal Code, was enacted so that the courtwhere the case is pending shallhave the power to hold the hearing for supportpendente‘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 contemplatedby 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 supporthis wife and/or childrenprior to the amendment shouldbe chargedwith a misdemeanor, since he is entitled to the benefits of the lower penalty prescribedby the amendment.

2. A husband,who, afterArticle 602-A, P. C., became effective in 1959, goes to another state,but supportshis wife and/or children for a'time and subsequentlyfails to support them, shouldbe chargedwith a misdemeanorunderArticle 602, P. C., since he did not desert his wife and/or childrenby leaving the state, in order to make his offense a felony underArticle 6024, p. c.


### 3. A husband,who fails to supporthis wife and/or children,but who is a non-resident,but whose wife and/or childrenmove to Texas after a divorce or separation,and which husband continues to fail to support suchwife and/or children, should be chargedwith a misdemeanorunderArticle 602, P. C., since he did not desert his wife and/or childrenby 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 authorizedby 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 authorizedby Article 604, P. C., is civil in nature, and although the civil jurisdictionof the County Court of Wichita County has been transferredby 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 AssistantHonorable 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