Honorable Don M.Nuaent       Oainion No. C-733
District Attorney -
109th Judicial District      Re:   Additional explanation of
Kermit, Texas                      the holding in response to
                                   Question #l, Attorney Gen-
                                   eral's Opinion C-634 (1966),
                                   relating to the enforcement
                                   of an order by a respondent
                                   court through contempt pro-
                                   ceedings entered against a
                                   defendant under a Uniform
                                   Reciprocal Enforcement of
Dear Mr. Nugent :                  Support action.
       You have requested an opinion providing additional
explanation of the holding in response to Question #l,
Attorney General's Opinion C-634 (1966), relating to the
enforcement of an order by a respondent court through con-
tempt proceedings entered against a defendant under a Uniform
Reciprocal Enforcement of Support action.
       Your request reads, in part, as follows:
          “Please refer to the Attorney General’s
          Opinion #C-634 with regard to some
          questions I asked about the Texas Uniform
          Reciprocal Enforcement of Support Act. I
          thought1 made my question clear but will
          attempt to rephrase it so you will under-
          stand exactly what I am asking. First of
          all, let me assure you that I do know that
          the Act gives the Court the power 'to subject
          the defendant to such terms and conditions as
          the ,$ourt may deem proper to assure compliance
          with its orders. . .I
          “My question again is exactly what procedure
          do I use or does the Court use to get the
          man back into the courthouse for enforcement
          of its previous order?


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Hon. Don M. Nugent, Page 2   (c-733 1


         "Hypothetically assume, if you will, that
         the complaining ex-wife and children live
         in Louisiana. She files her complaint under
         the Act in Louisiana. It is sent to our
         District Clerk here in Winkler County. It
         is placed on the Court's docket, the respon-
         dent or defendant husband is ordered to appear
         and show cause why he should not pay child
         support or why he should not be held in con-
         tempt. He appears and the Court enters its
         order requiring him to pay, say, $25.00 per
         week through the District Clerk's office in
         Winkler County. He pays $25.00 for the first
         two or three weeks and again discontinues pay-
         ment. We receive a letter from the proper
         authorities in Louisiana informing us that he
         has discontinued payments again and orders us
         to proceed further. NOW, at this point, my
         questions are these:
           "1 . Is another complaint required to
           get this man back into the courthouse?
           "2 . If so, what is the form of that
           complaint and who signs that complaint?
         "If it is necessary for the complaining wife
         to file the complaint, must it be filed in
         Louisiana and come through our Clerk's office
         aga$O:- or may she sign a complaint in Louisiana
         in the form of an affidavit, send it directly
         to our Clerk who files it and acts on it, or
         may I personally file an affidavit in the form
         of a complaint against him and then, assuming
         that said complaint is finally filed, must we
         give him additional notice to show cause?
         "You can see that I am concerned about simply
         the mechanics of how to enforce the Judge's
         order in one of these cases and also T am con-
         cerned about having to give him notice of the
         second hearing because in all'llkelihood, he
         will simply disappear before he will appear.
         "I certainly appreciate your prior opinion No.




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Hon. Don M. Nugent, Page 3     (C-733)


          C-634, but it did not tell me exactly what
          I wanted to know. Thank you for your atten-
          tion. . .'
       That portion of your request for Opinion No. C-634
(1966) here pertinent reads as follows:
          "I . Very often this office is called on by
          another State to enforce the payment of child
          support by our resident to the resident of
          another state. This matter is set for hearing
          and our District Judge orders that the indivi-
          dual pay a certain amount through the registry
          of the Court. The individual will then pay for
          a while then cease paying. We will normally
          receive a letter from the demanding State asking
          us to take further action to enforce payment.
            "1. My question is what specifically can we
            do to cause our resident to comply with our
            Court order?
            "2 . May   we orginate some sort of complaint
            based on   contempt of Court or must the com-
            plaining   State file a new complaint under the re-
            ciprocal   support act?"
       These questions,as we then understood them, were
consolidated and restated in our Opinion No. C-634 (1966)
as follows:
         "In the event that a local resident
         defaults on the support payments which he
         has been ordered by a local Texas court
         to make in response to a petition present-
         ed to the court, by an initiating state,
         for enforcement of a support order under
         Article 232%b-4, whether the Texas court
         may punish the defaulting defendant by
         contempt proceedings, without a new com-
         plaint being filed by the initiating state."
       The answer given to the question as we stated it is
as follows; Section 25, Article 232813-4provides in part:
          IfI. . . (T)he court of this State when


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Hon. Bon M. Nugent, Page 4   ~(c-733)


          acting as responding state has the power
          to subject the defendant to such terms and
          conditions as the court may deem proper to
          assure compliance with its orders and in
          particular:


         “f(c) To punish the defendant who shall
         violate any order of the court to the same
         extent as is provided by law for contempt of
         the court in any other suit or proceeding
         cognizable by the court. (Emphasis supplied)
          “The above quoted portion of Article 232%b-4
          reveals that the Legislature did not contem-
          plate that a second petition from the initiat-
          ing state would be necessary in order for the
          Texas court to enforce its order by contempt
          proceed1ngs .”
       Both our restatement of your original questions and
our answer to the questions as combined and restated assume
the power in the court in a child support case to enforce
its orders through contempt proceedings without a formal
complaint being filed. Ex Parte Winfree, 153 Tex. 12, 263
S.W.2d 154 (1953).
       Confusion may arise through the fact that there is a
conflict between the Texas Supreme Court and the Texas Court
of Criminal Appeals and the answer to the question as to what
is necessary to initiate contempt proceedings thus varies
within the State depending upon whether the contempt order en-
tered is in a civil or criminal suit. In 20 Tex.Bar Jour. 74
(1957) it is stated:
          “Although Winfree is now authority for the
          proposition that verification of the com-
          plaint Is not essential, the rule is in-
          applicable to cases arising on the criminal
          side of the docket. There the complaint
          must be verified. Ex Pa&e Sturrock, 80
          Tex.Crim.Rep. 307, 189 S.W. 487 (1916). . .'




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Hon. Don M. Nugent, Page 5    (C-733)


      The Supreme Court in Ex Parte Winfree, supra, stated:
          1,. . . The thesis that verification is
          essential includes, of course, the pro-
          position thatthere mustbe a complaint
          to verify; Ex parte White, supra. The
          latter decision, as well as those in the
          Duncan and Landry~cases, stand for the fur-
          ther point of present interest, that a
          show cause order or rule nisi followed by
          due service and proper hearing, while
          obviously sufficient to apprise the con-
          tempt defendant of the charge against
          him and afford him an opportunity to
          present his defense, is yet no substi-
          tute for an affidavit of accusation. . .
          II. . .
          ,I
           . .   . While evidently a substantial number
          of courts of other jurisdictions consider
          the rule nisi or show cause procedure no
          substitute for a formal complaint, several
          take the view we now take that it is.
          Haumaartner v. Jounhin. 107 Fla. 85%. 143
          So. i/36; Hunter V.-State, $51 Ala..li, 37
          So.2d 276; ,Inre Fletcher, 71 App.D.C. 108,
          107 F.2d 666.    In the Baumgartner case (107
          Fla. 858, 143 So. 437), it was said:
         "'The gist of the offense was stated in
         the rule nisi, which operates as the
         charge. How the circuit judge arrived
         at the basis of this charge, whether by
         testimony taken in chambers, personal
         view, or hearsay report, is utterly im-
         material to the validity of a subsequent
         commitment for contempt which the record
         shows was duly heard and determined against
         contemnor after a "full" hearing, with
         opportunity to him to defend.'"
       The Texas Supreme Court views the requirements for
a valid contempt confinement in a child support case in
the light of due process--



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Hon. Don M. Nugent, Page 6    (C-733)



          “It is our view that the question before
          us is to be resolved not on a concept of
          jurisdiction judicially borrowed from the
          detailed requirements of our written law for
          criminal prosecutions, but on the broader
          ground of due process. In Ex parte Ratliff,
          117 Tex. 325, 3 S.W.2d 406, 57 A.L.R. 541 (in
          which notice of a hearing of a motion to dis-
          solve a restraining order directed against
          Ratliff was held not to be notice adequate to
          sustain a contempt judgment against him for
          violation of the order) Justice Greenwood,
          though citing some of the above-mentioned deci-
          sions of the Court of Criminal Appeals, spoke
          altogether in terms of due process based on
          proper notice and hearing of the contempt
          charge . That no complaint had been filed was
          evidently considered important only for its
          bearing on the broader matter of notice.
          “Prior to Ex parte White we had evidently
          decided that due process did not require a
          complaint in cases where the court.itself
          should in effect make the charge by issuing a
          show cause order, give notice by timely ser-
          vice of the latter and in due course afford a
          proper hearing. Rule 30%A, Tex.R.Civ.Proc.,
          reaffirmed in Ex parte Nix, 149 Tex. 267, 231
          S.W.2d 411, certiorari denied, 340 U.S. 840,
          71 S.Ct. 28, 95 L.Ed. 616, expressly provides
          for such a procedure in cases of contempt for
          failure to comply with child support orders, and
          our action in adopting this provision of the
          rule is clearly inconsistent with a contrary
          view of due process. . .’ Ex Parte Winfree, 263
          S.W.2d 154, Page 157.
       Your question No. 1 is answered in the negative.
       Your other question is predicated upon an affirmative
answer to your first question.




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Hon. Don M. Nugent, Page 7     (c-733   1


                     SUMMARY
                     ----_-_

            Section 25, Article 232%b-4, authorizes
            a court acting as respondent court under
            Article 232%b-4 to punish contempts as in
            other child support cases. Ex Parte Win-
            free, 153 Tex. 12, 263 S.W.2d 154 (lg5j)
            authorizes the court to acquire jurisdici
            tion in contempt proceedings in child
            support cases on the basis of a rule nisi
            or show cause order, without an additional
            complaint.

                                  Yours very truly,
                                 WAGGONER CARR
                                 Attorney General




                                                 orney General
LJC:cf
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Sam Kelley
Charles Swanner
John Reeves
Charles Bardwell
APPROVED FOR THE ATTORNEY GENERAL
BY:   T. B. Wright




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