                                             -- This     OP;C~~

                        September 12, 1962
                                             I    Affirms Opinion

                                                #--M&y~.~j
                                                                    i


Mr. Dan Brazil                   Opinion No. W-1437
County Attorney
Angelina County                  Re:   Whether the provisions
Lufkin, Texas                          of Article 604 of the
                                       Penal Code can be applied
                                       to the offense of wife,
                                       or 0 r
                                       and&%&"~no%?fe
Dear Mr. Brazil:                       Co&y   Court.
    You have asked this office an opinion on the following
question:
        "Can the provisions of Article 604 of the
   Penal Code be applied to the crime of~wife, or of
   child, or of wife and child desertion, in County
   Court? In other words, would the County Judge
   have the authority to apply the provisions of such
   article to such a criminal case pending in the
   county Court?"
   Article 602 of the Penal Code provides as follows:
        'IAnyhusband who shall wilfully desert, neglect
   or refuse to provide for the support and maintenance
   of his wife who may be in necessitous circumstances,
   or any parent who shall wilfully desert, neglect or
   refuse to provide for the support and maintenance of
   his or her child or children under eighteen years of
   age, shall be guilty of a misdemeanor, and upon con-
   viction, shall be punished by confinement in the
   County Jail for not more than two years." As amended
   Acts 1959, 56th Leg., p. 504, ch.222, 3 1.
   Article 604 provides:
         "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
Mr. Dan Brazil, page 2 (WW-1437)

    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." Acts 1913, p. 188; Acts 1931, 42nd
    Leg., p. 58, ch. 38, g 1.
    This office has held that the County Court does not have
jurisdiction to enter an order for support, pendente lite, after
the filing of a complaint against the defendant for the crime of
child desertion when the complainant and defendant are divorced
in a Texas District Court and that Court has entered an order
for support, and that any order entered by a County Court under
such circumstances are not valid. Attorney General's Opinion
No. WW-1023, March 8, 1961, a copy of which is attached hereto.
We hereby affirm that holding.
    In those cases where no support order has been entered by
a District Court pursuant to a divorce proceeding, Article 604
applies. We therefore answer your question in the affirmative.
The County Judge does have authority under Article 604 to enter
the order therein provided, except where jurisdiction to enter
such an order has been acquired by the District Court because of
the entry of a support order in a divorce proceeding. Insofar as
Attorney General's Opinion No. O-238 is inconsistent with this
holding, we overrule that opinion.
                       SUMMARY
         Under Article 604, Vernon's Penal Code, the
    County Judge has authority to enter temporary orders
    providing for the support of deserted wives and
    children, or both, pendente lite, except where
    jurisdiction to enter such orders has, because of a
    support order in a divorce decree, been acquired by
    the District Court.
                             Very truly yours,




NVS :sm
Mr. Dan Brazil, page 3 (WW-1437)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
L. P. Lollar
Joe Osborn
James Broadhurst
REVIEWED FOR THE ATTORNEX GENERAL
By Leonard Passmore
