. (I 

- . 

THEA~ORNEY GENERAL 

OFTEXAS 

WILL WILSON 

AITORNICY G*:NERAL 

June 4, 1957 

Honorable E. W. Patteson Opinion No. WW-145 

County Attorney 

Gonzales County Re: Whether or not a wife must 

Gonzales , Texas file a divorce suit before 

she ma 

cle 60 t 

proceed under Brti- 

, Penal Code of 

Dear Sir: Texas 

You recently requested an opinion from this office 

on the following question: 

“Is it necessary for a wife to file a divorce proceeding before she may take advantage 

of the provisions contained in Article 604, 

Penal Code of Texas?” 

It is our opinion that it is unnecessary for a divorce proceeding to precede the action contemplated by Uticle 

604, Penal Code. 

Article 604, Penal Code of Texas, is as follows: 

“The Court during its term, or Judge thereof 

in 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, pendente lite, and may punish for the violation or refusal to obey such order as for contempt *I’ 

We find the following statement in Ex Parte Tavlor 

137 Tex. 505, 155 S.W.2d 358 (1941): 

, 

“It was well settled by the decisions of this 

State, prior to the enactment of Article 4639a, 

Acts 1935, 44th Leg., p. 111, ch. 39, Vernon’s Annotated Texas Statutes, that the courts of this State, 

in an independent suit not involving a divorce or 
a . 

Honorable E. W. Patteson, page 2 (WW-145) 

the custody of a minor child were without authority to compel the paymen t of allowances by 

a parent for the support of his minor child. 

, 120 Tex. 491, 40 S.W. 

er v. BOWY~ 130 Tex. 

e above statiment we 

inal action such as 

is provided for in the Penal Code, Article 604, 

which is not here involved.” 

“It is very clear from a reading of the 

above Act that it does not attempt to enlarge the 

power of the court so as to authorize the compelling of such payments in suits not involving a 

suit ;for divorce or the custody of a minor child. 

9 e 0 

It will be noticed that Ex Parte Tavlpr and the cases 

cited therein as authorities for the holding have reference to 

child support actions. 

These decisions were written prior to the enactment 

of Article 4639b, Revised Civil Statutes of Texas, Acts 1955, 

54th Legislature. This new legislative enactment permits a suit 

independent of a divorce proceeding to compel child support payments. 

Certainly Article 604, Penal Code of Texas is an ancillary proceeding to a criminal action and is not conditional upon 

a divorce proceeding first being instituted. 

Article 604, Penal Code of Texas, provides ancillary relief to a criminal action, and it is not 

necessary for a wife to file a divorce proceeding in 

order to take advantage of the provision of said 

statute. 

Very truly yours, 

WILL WILSON 

JLS: jl:rh:wb Assistant 
Honorable E. U. Patteson, page 3 cm!-1451 

APPROVED: 

OPINION COMPfITTL&:: 

H. Grady Chandler, Chairman 

Robert 0. Smith 

Ed Cazares 

Will Davis 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Geo. P. Blackburn