Mrs. Violet S. Greenhill, Chief
Division of Child Welfare
State Department of Publia Welfare
Austin, Texas
Dear Madam:              Opinion No. O-3379
                         Re: Does Artiole 604, Penal Code,
                              authorize the following pro-
                              cedure; filing a complaint h
                              the justice oourt and immediately
                              thereafter filing an application
                              in the district oourt for the
                              defendant to appear on a certain
                              date and show oause why he should
                              not be ordered to provide for the
                              support of his wife and children,
                              and hearing the application and
                              the court make this order there-
                              on, this prooeeding in the dis-
                              triot court being taken without
                              the issuance of a warrant from the
                              justioeoourt, hearing in that court
                              or aation by the grand jury.
          We acknowledge receipt of your request for the opinion
of this department wherein you enolosa a letter peoeived by you
from Mr. Fred Ward, Chief Probation Officer, Juvenile Court, Hall
of Hsoords, Dallas, Texas, in which the following question is
raised: Does Artlole 604, Penal Code of the State of Texas,
authorize the following prooedurer filing a aomplaint in the
justioe oourt, and immediately thereafter flllng an applioation
in the diatriot court for the defendant to appear on a certain
data and show oause why he should not be ordered to provide for
the support of his wife and ohlldren, and hearing the applica-
tion and the oourt maktng its order thereon, this prooeedlng in
the distrdot oourt being taken without the ieeuanoe of a warrant
from the justioe oourt, hearing in that oourt or aotlon by the
grand jury? If suoh action is authorized by statute, is the
statute oonstitutional?
          Artiole 604 of the Penal Code, whioh Is inquired about,
provides as follows I
          UThe Court during ,Its term, or Judge thereof in
Mrs. Violet S. Greenhill, page 2, O-3379


     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
     ,forthe support of deserted wives and children or both,
     pende~ntelite, and may punish for the violation or refusal
     to obey such order as for aontempt."
            We have given this matter our careful consideration
and you may be advised that it is the opinion of thLs department
that Article 604 of the Penal Code of the State of Texas contem-
plates that after the filing of the 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, that thereafter,
at any time   before the trial, upon application of the complain-
ant, after notice to the defendant, the court may upon hearing
thereof enter such temporary orders as may seem just, providing
for the support of deserted wives and children or ~both, pen-
dente lite, and may punish for the violation or refusal to obey
such order as for contempt.
          It is the further opinion of this department that the
actual issuance of a warrant for the arrest of the person
against whom the oomplaint is instituted is not a prerequisite
to the validity of the complainantrs application for support of
deserted wives and chjldren or both. However, we are of the
opinion that the Code of CrLminal Procedure contemplates that
in the due order of proceeding upon the filing of a complaint
that a warrarxt~
               for~the arrest of tk8 person against whom the
complaint is made shall be issued forthwith.
          The order of the court providing for the support of
deserted wives and Children or both, pendente lite, is not a
criminal proceeding, but same is an ancillary action to a
criminal prosecution, See Gregory v. Sta;e, 41 S. W. (2d) 838,
Russell v. State, 37 Tex. Crim. Rep. 503. Suoh an action is
not appealable from the district court to the Court of Criminal
Appeals for same is only an interlocutory order from which no
appeal will lie.
          However, Ff the person against whom suoh oomplaint
has been instituted and who is ordered by the court to comply
with the order of said court and to contribute to the support
of a child or wife or both, refuses to abide and comply with
such order and is oomoitted to jail in contempt of the CoUrt’S
order, the courts have held that such person can seek relief
by habeas corpus prooeedings and in the event that relief is
denied that the aotion of the distriot court oould be reviewed
in the Court of Criminal Appeals. See 8x parts McWhorter, 45
5. W. (26) 977.
ma.   Violet S. Greenhill, page 3, O-3379


          Over a long period of time the courts of this State
have issued orders requiring in cases of child desertion or
wife desertion or both, that the person or party against whom
a complaint has been filed or sn indictment returned contribute
to the support of said wife and/or children. We find no cases
holding this statute unconstitutional, nor do we know of any
provisions of the Constitution which it violates. We are,
therefore, of the opinion that the statute as above construed
is valid and enforceable.
          Trusting that this satisfactorily answers your
request, we remain
                                     Yours very truly
                               ATTORNEY GENERAL OF TEXAS
                                s/ Edgar W. Cale

                                BY          Edgar W. Cale
APPROVED MAY 8, 1941                            Assistant
s/ Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL
APPROVED opinion committee
By BWB, Chairman

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