                            AKlsTaN   111.TExaca

  WILL    wILsoN
Ax-rORNEY    GE:NElG%E                November 28, 1961

                             Opinion No. WW-1201
      Mr. W. Gail Walley                Re: Questions arising
      Acting Criminal District Attorney     under the Uniform
      Jefferson County                      Reciprocal Enforce-
      Beaumont, Texas                       ment.of.SupportAct
                                            (Art. 2328b, Vernon's
      Dear Mr. Walley:                      Civil Statutes)
            You have requested an opinion from this office re-
      garding the following questions. The questions and our
      opinions are set out below.
               "(1) Is the District Attorney comnelledby
               statute to act as petitioner'srepresentative
               in any case where petitioner resides in his
               district;but where circumstancesdo not
               warrant the filing of a criminal charge of
               non-support?
               "(2) Is the District Attorney compelled b
               statute to act as petitioner'srepresentat-3ve
               in any case where petitionerresides in his
               district, but where petitioner IS able to
               retain private counsel to file the reciprocal
               support action?"
             This office is unable to find any language in Article
      2328b of Vernon's Civil Statutes which compels the District
      Attorney to represent the petitionerwhen the petitioner
      resides in his district. Where circumstancesdo not warrant
      the filing of a criminal charge under Section.11 of the
      Uniform Reciprocal Enforcementof Support Act, the action
      is civil in nature and the District Attorney is not compelled
      to represent the petitioner. (See Attorney General's Opinion
      v-1409).
               "(3) Section 8 of the Act provides 'Where the
               action is broughtby or through the State or
               an agency thereof, there shall be no filing
               fee. It has been brought to the attention
               of this office that at least one District Attorney
               in this state refuses to file a reciprocal action
               without prepayment of filing fee,regardlessof
               the circumstancesof the petitioner,on the
               grounds that the District Clerk has the right,
               and exercises the right, to challengeany and all
Mr. w. G. Walley, page 2 (WW-1201)


      pauper's oaths. Does the District Clerk
      have the right to demand or challengea
      pauper's oath in any reciprocal case filed
      through the office of the District Attorney?"
      Section 8 of Article 2328b-3 is as follows:
      Vhenever the State or a political subdivision
      thereof has furnished support to an obligee it
      shall have the same right to invoke the pro-
      visions hereof as the obligee to whom\the
      support was furnished for the purpose of secur-
      ing reimbursementof expendituresso made.
      "When the Petition is filed in the District
      Court of this State, it shall be accompanied
      by a filing fee or a pauper's affidavit which
      the Court may in its discretion accept in.
      lieu of the filing fee; provided, however, that
      the Court of this State, acting either as an
      initiating or responding State, may in its
      discretion, direct that any part of or all
      of the fees or costs incurred in this State
      shall be paid by the county. Where the action
      is brought by or through the State or an
      agency thereof, there ,shallbe~no filing fees;"
      ;s2amended Acts 1953, 53rd Leg., p.907, ch. 374,
         .
       It is the opinion of this office in the event the
action is brought by or through the State or an agency thereof
that there shall be no filing fee, as provided in Section 8,
Article 2328b. If an action is filed by an individual,it is
within the discretion of the judge of the court to,,acceptthe
pauper's affidavit in lieu of the filing fee. The court may,
in its discretion,direct that any part of or all the fees
or costs incurred in this State shall be paid by the county.
       “(4)  Does the Criminal~DistrictCourt of
       Jefferson County, Texas, have jurisdictionin
       cases filed under the provisions of the
       Uniform Reciprocal Enforcementof Support
       Act?"
      Article 52-160a confers jurisdictionupon the Criminal
District Court of Jefferson County in civil suits, causes, and
matters involving:
       "(1) Divorce, 88 provided in Chapter 4,
       Title 75, of the Revised Civil Statutes of
       Texas of 1925, and any amendments thereof,
       heretofore or hereafter made thereto;
.   .



        Mr. W. G. Walley, page 3,   (WW-1201)



              "(2) Dependent and delinquent children,
              as provided in Title 43, Revised Civil
              Statutes of Texas of 1925, and any amend-
              ments thereof, heretofore or hereafter made
              thereto;"
               The above mentioned Title 43 and 75 are the pro-
        vision8 covering all matters of divorce and dependent and
        delinquent children. It la the opinion of this office that
        52-16Oa gives jurisdictionto the Criminal District Court
        of Jefferson County to act on cases filed under the pro-
        visions of the Uniform Reciprocal Enforcementand Support
        Act.
              Your letter further states:
              "As a result of the decisiou in Freeland vs.
              Freeland, 313.SW2d 943 (Tex. Civ.App.1958,no
              writ history), certain questions have arisen
              as to the jurisdictionof the district court
              and the duties of the district attorney as
              petitioner'srepresentativewhere petitioner
              no longer resides in the district where the
              divorce and support award were granted. These
              questions are as follows:
               "(5) Must a petitioner return to the county
              where divorce and support award were granted
              to file for support under the uniform support
               act? Or may petitioner file in any district
               court where such petitioner and children for
              .nhom support was awarded currently reside?
              "(6) If the answer to question number five (5)
              is that only the district court where divorbe
              and support were awarded has jurisdiction~as
              petitioning court, is the District Attorney in
              the district where the divorce ,andsupport
              were awarded comnelled& statute to represent
              a petitionerwho is not a resident of his
              district in the following circumstances:
              "(a) Where facts justify the filing of a
              criminal non-support charge in the county
              where the divorce was granted?
              l*(b) Where facts do not justify the filing
              of a criminal non-support charge in the county
              where the divorce was granted?
              "(c) Where the non-residentpetitioner is
              able to employ private counsel to file the
              support action?"
                                                               .




Mr. W. G. Walley, page 4, (WW-1201)


       In answer to your question number.5 we refer you.
to Attorney General's Opinion No. WW-784. This opinion,
which we reaffirm, holds that the petitionermust return
to the court where divorce and support award were.granted
to file for support under the Uniform Support Act. The
court which granted the original divorce and support award
has the sole jurisdictionto enforce its decrees, Therefore,
a criminal charge under the reciprocal support act must be
filed in that court; However, a criminal charge undoer
Articles 602, 602-A, and 603, V.P.C. must be filed in the
county where the abandonment occurred or in the county
where the wife or child resided forsix months next preceed-
ing the filing of the indictmentor information.
       In reference to your question number 6 Article 25
Code of Criminal Procedure, this reads as follows:
      "Each district attorney shall represent the
      State in all criminal cases in the district
      courts of his district, except in cases where
      he has been, before his election, em loyed
      adversely. When any.criminalprocee%ing is
      had before an examining court in his-district
      or before a judge upon habeas corpus, and he
      is not notified of the samsand :'IS'~'at the
      time within.the county where such proceeding-
      is had, he shall represent the State therein,
      unless prevented by other official duties."
      The duty of the District Attorney to file a criminal
non-support eharge is the same as his duty to file any other
criminal charge called to his attention.
      We answer your questions number 6(b) and 6(c) in the
negative because such proceedingsare ~1~11 in nature.
                   SUMMARY
      A district attorney is not compelled by statute
      to act as Petitioner'srepresentativein a civil
      action under the Uniform Reciprocal Enforcement
      of Support Act. The District Judge and not the
      District Clerk has the discretion to accept a
      pauper's affidavit in lieu of a filing,fee,but
      the District Clerk may challenge the oath.~~The
      Criminal District Court of Jefferson County has
      jurisdictionover ,casesfiled under the pro-
      visions of the Uniform Reciprocal Enforcementof
      Support Act. A Petitionermust return to the
      County where his divorce was granted to file
      for support under the Uniform Reciprocal Enforcement
Mr. W. G. Walley, page 5, (w-1201)


      of Support Act. The duty of the District Attorney
      to file a criminal non-support charge under the
      Uniform Reciprocal Enforcementof Support Act
      is the same as his duty to file any other criminal
      charge called to his attention.
                               Yours very truly,
                               WILL WILSON


                              BJ. T.$uLuL-
                                     Walker
                               Assistant Attorney General
JTW:bjh
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Gordon Cass
Jack Price
Norman Suares
Riley Eugene Fletcher
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
