Hon. Austin F. Anderson Criminal Dlstrfct Attorney SanAntonio j, Texas Opinion No, V-1409 Ret Responsibility of the Criminal District Attorney to represent the plaintiff in a child support proceeding under HouseBill 192, Acts 52ndLeg,.,, RISI 1951” (Articles 2328b-1 to DearMr. Anderson: 2328b-3, VcC,S~)

Your requeet for an opinion presents for determination the following questions:

1, Is the Criminal Metrict Attorney of Bexar County required to represent the plaintiff fn a child support case filed in a district court of Bexar County under, HouseBill 192, Acts 52ndLeg,, R,Ss 1951, ch. 377, ps 643? 2, It not, what procedure is the district court to follow in obtaining representation for the plaintiff In this State?
Your faetwl situation relates to ’s petltlon, forwarded to Rexar County from the State of Ohio, wherein support andmaintenance is sought pursuant to Sections 8007-1 to 8007-lp,, Qeneral Code of Ohio, referred to as the Reciprocal Act for Support of Dependent8l TheState of Texas has a slmllar lawknownas the Uniform Reciprocal Rnforcement of Support **Act,** which wasenacted into law by House R,,S, 1951, ch, 377, pw643 **'ih':t"stg32!~4;t** rz3%:5, V,C>S,), Section 12thereof provides 88follows:

“Whena court ‘of this State, acting as a responding state, receives from the court of aninitiating state the aforesaid copies,Hon. Austin F. Anderson, page 2 (V-1409)

it shall (1) docket the cause, (2) notify the District or County Attorney, (3) set atime andplace for ahearing, and (4) take such action as is necessary In accordance with the laws of this State to obtain jurisdiction.”
In the brief accompanying your opinion request, you have pointed out that this statute does not expressly state that the district or county attorney, uponnotification, shall represent the plaintiff in a civil proceeding In the district court of this State, but you reach the conclusion that the duty of representation Is necessarily Implied. Uponconsidering the background andprovisions of the statute, weagreirwith your conclusion.

TheTexas statute, aswell as the Ohiolaw Is patterned after the Uniform Reciprocal Enforcement of Support Act adopted by the National Conference of Commissioners onUniform State Lawsat its 1950 meeting. Theavallability of the remedies afforded by the statute depends uponthe enactment of a similar reciprocal statute In each of the interested states. The only change which the Legislature of Texas madein the text of the act as drafted by the National Conference (except for the omission of a.setitIon onuniformity of interpretation) wasthe exclusion of alimony for a former wife from the duty of support. Section 12 of the act drafted by the National Conference reads as follows:

“Whenthe court of this state, acting as aresponding state, receives from the court of aninitiating state the aforesaid copies, It shall (1) docket the cause, (2) notify the here insert the nameof the official charged with the duty of carrying on the proceeding&, (3) set atime and place for ahearing, and (4) take such action as is necessary In accordance with the laws of this state to obtain jurisdiction.V’ (Handbook of National Conference of Commissioners onUniform State Laws, 1950, p. 175.1
It Is clear from this provision that the legislature in each state enacting the Uniform Lawwas to designate anofficial to be “charged with the duty ofHon. Austin F. Anderson, page 3 (V-1409)

carrying on the proceedings.’ TheTexas Legislature-has designated the “District or CountyAttorney”; andwe

### are of the view that the legislative intent was to charge the official the duty of representing the obligee in the Te s court.. If the Legislature has the power to impose this duty upon the district or county attorney, it would follow that your first question should be answered in the affirmative.

Aproceeding filed under Part III of the Reciprocal’ Enforcement of Support Act is, wethink, clearly a civil proceeding and except with respect to claims **for** reimbursemen& under Section 8, it 1s anaction between private individuals in which neither the ixiitiating state nor the responding state is a party.

TheConstitution of this State imposes

‘upon the county or district attorney the **duty** to represent the State in all cases in the district andinferior courts. Tex, Const., 

### Art. V, Sec. 21, It Is established that this constitutional duty cannot be abridged by the Legislature. Thequestion confronting us, however, is whether the Legislature mayenlarge the duties of these officers beyond those expressIg imposed by the Constitution. Wehave been unable to find any case directly in point; but in Zucaline Medicine Co. v. Standard **Inv. Co.,**  **25 S.W.**  d 259 [Tex, Civ. App. 1930 f ) the court held that the Leaislature c&~rdr~&~~e’&on members of the iudiciary~duties other than-those- imposed by

;itution. Also see Jones v. Alexander, 122 hY, weare of the opinion that the Constitution does not prohibit the imposition of additional duties upon the district or oounty attorney.

Theenforcement of a duty to provide support has long been recognized as a matter of concern to the public as well as to the individual directly benefited thereby. Theinte,rest of the public la based not only on the criminal aspect of the failure to support but also on the attendant consequences to society and the likelihood of the dependent’s becoming a charge upon public charity. Anexample of the recognition of the public nature of the duty Is found in Section 13-A of Article 2338-1, V.C,S., which givesHon. Austin F. Anderson, page 4 (V-1409)

the,juvenile court the-authority to enter ajudgmentagainst a parent SOTtne support of adelinquent child. Indeed, the imposition upon the district or county attorney of duties incidentally involving the enforcement of a

## civil right of support is not novel in this State. Ourstatutes, while not authorizing the institution of an itiependant civil suit for maintenance andsupport, permit the enforcement of the civil obligation as an adjunct to a criminal prosecution instituted by the district or county attorney. Art. 604,

## v. P.C.; F,xD t Tavlor 137Tex. 505 155 S.W.2d 358 (19411. Sgci the enhorcement of tie duty of support is amatter of public aswell as private concern, and since the officers of this State will be performing services only in instances in which reciprocal services will be accorded to this State, weare unable to say that the expenditure of public funds in compensating these officers andtheir assistants for the services would not be for apublic purpose.

In view of the foregoing, weare of the opinion that Section 12of HouseBill 192validly imposes upon the Criminal District Attorney of Bexar County the duty of representing the obligee in the proceeding to which you have referred.

Since wehave answered your first question in the affirmative it becomes unnecessary to answer your second quescion or to discuss the propriety of the court’s proceeding with the case without representation for the obligee.

SUMMARY

TheCriminal. District Attorney of Bexar’ County is required~ to represent the obligee In a support, proceeding instituted in another state andfiled inRon. Austin F, Ando?so~~,

## page5 W-1409)

a district court o? Bexar County under Section 12of the Uniform Reciprocal Enforcement of Support Act (H.B. 192, Acts 52ndLeg. R,S. 1951 ch. 377, p: 643; Arts, 2328b-1 to 2328b-3, V.C.S.).
Yours very truly,
APPROVED: PRICEDAARIEL Attorney General
so C. Davis, Jr, County Affairs Wvision E, Jacobson Reviewing ASSistant Charles D, Mathews First Assistant
BW:MRW:mh 

# 2? 7 SW Mary pWall Assistants