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                             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 proceed under Brti-
                                                                 cle 60 t , 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 di-
                      vorce 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 di-
              vorce 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 vio-
                      lation    or refusal  to obey such order as for con-
                      tempt *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     Anno-
                      tated 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  au-
        thority  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 compel-
        ling 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 pay-
ments.

           Certainly   Article   604, Penal Code of Texas is an ancil-
lary proceeding    to a criminal   action  and is not conditional upon
a divorce  proceeding   first  being instituted.


                Article    604, Penal Code of Texas, provides       an-
        cillary     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

REVIEWEDFOR THE ATTORNEYGENERAL

BY:    Geo.   P. Blackburn
