                THEA            ORNEY          GENERAL
                               OFTEXAS



                                  March 21, 1961


Miss Edna Cisneros                   Opinion NO. IN-1023
county Attorney
Willacy County                       Re:   Jurisdiction of County Court to enter
Raymondville, Texas                        order for support, Pendente Lite,
                                           pursuant to Art. 604 V.P.C., when
                                           there is a District Court order for
                                           support.
Dear Miss Cisneros:

       You have asked the following questions:

       "1.   Does the County Court have jurisdiction to enter an
             order for support, pendente lite, after the filing
             of a complaint against a defendant for the crime of
             child desertion when the complainant and defendant
             are divorced in a Texas District Court and the Court
             has entered an order for support?

       "2.   Is an order of the County Court for support, pendente
             lite, still valid and subject to enforcement by con-
             tempt proceedings in the criminal case when the parties,
             after the filing of the criminal complaint, have been
             divorced and an order for support entered (whether for
             the same or a different amount) in a Texas District
             court?"

Article 604 of the Penal Code provide5 for an allowance for support pend-
ing the trial of a case for thecrime of wife or child desertion:

             "The Court during its terms, or Judge thereof in va-
             cation 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 hear-
             ing 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."

       When a person is charged with violation of Art. 602 or 602-A of the
Penal Code, the trial for such offense of desertion will someti'mesnot be
held for several months and questions have arisen as to whether the Court
in which the criminal case has been filed has jurisdiction, pursuant to
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Miss Edna Cisneros, Page 2     (WW-1023)



Art. 604 to enter an order for the support of such children, pendente lite,
when there is already an order for support in a sum certain in a Texas
District Court where the complainant and the defendant in the criminal
case were divorced, or whether an order issued pursuant to Art. 604 will
deny the divorce court jurisdiction to enter an order for support pursuant
to Article 463ya of Vernon's Civil Statutes, as amended.

       By enactment of Article 463ga the District Courts, in conjunction with
a divorce decree, were authorized to enter an order requiring a parent to
make monthly payments for the support of minor children sixteen (16) years
flater
.      changed to eighteen (18)
                           .  ._ years by the 1953 amendment) and to enforce
obedience of such support orders by civil contempt proceedings. Johns v.
Johns, 172 S.W.2d 770 (Civ. App. 1942).

        Where a support order has been entered in conjunction withya divorce
decree and the parent who is ordered thereby to make support payments has
defaulted in making such payments, the only remedy available to enforce the
order is a civil contempt nroceedinn against the defaulting oarent. there
being no other remedy provided by the civil statutes. Bur&G v. Birger,
156 Tex. 584, 298 S.W.2d 119 (1957); McDonald v. Mercantile National Bank,
162 s.w.2a ggl (civ. App. 1942); Youngblood V. Youngblood, 163 S.W.2d 731
(Civ. App. 1942); Crubbs v. Grubbs, 164 S.W.2d 216 (Civ. App. 1942). Any
contemnt oroceeding for the enforcement of a support order is ancillarv to
the original order and exclusive jurisdiction to-enforce it remains with the
Court that entered the original order, one Court being without authority
to punish contempt6 of another Court. Ex parte Gonzalez, Ul Tex. 399, 238
S.W. 635 (1922); Putty v. Faulkner, 214 S.W.2d 831 (Civ. App. 1948); Hunt
Y. ~oyd, 193 S.W.2d 970 (Civ. App. 1946); Johns v. Johns, supra.       -

       The Courts:are in complete agreement in stating that since a support
order is of an interlocutory nature, only the original District Court has
jurisdiction to amend, change or modify it. Ex parte Goldsmith, 155 Tex.
605, 290 S.W.2d 502 (1956); Ex parte Roberta, 139 Tex. 644, 165 S.w.2a 83
(1942); Armstrong v. Armstrong, 295 S.W.2d 542 (Civ. App. 1956); Johns v.
Johns, supra   .


       Art. 604 was last amended in 1931. Article 4639a was enacted in
almost its present form in 1935. Section 2 of said Article, as,,passedin
1935, reads as follows:

                 "Sec. 2. This Act shall be cumulative of all other
               laws upon the same subject, and is not intended to re-
               peal any other laws upon the subject of the care or
               support of such minors."

       This would tend to indicate that the legislature did not'wish to
repeal conflicting laws. However, in 1953, Section 1 of Article 4639a,
was amended by Acts 1953, R.S. 53rd Leg. ch. 127, p. 439. Section 2 of
the amends.toryAct of 1953 repealed conflicting laws or parts of laws to
the exter$ of any conflict.
Miss Edna cisneros, Page 3   (w-1023)



       In 1953 the Legislature showed its intent to repeal all laws in con-
flict with Art. 4639a. As a result of the repealing clause in the 1953
amendment of Art. 463ya, Article 604 was repealed in so far as it conflicted
with Art. 463ya in granting jurisdiction to enter support orders where a
divorce suit is pending and the divorce court has taken jurisdiction and
entered an order for support under Art. 463ya.

        We answer both of your questions in the negative.


                                SUMMARY

            1. The County Court does not have jurisdiction to
            enter an order for support, pendente lite, after
            the filing of a complaint against a 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.

            2. An order of the County Court for support, pendente
            lite, is not valid and subject to enforcement by con-
            tempt proceedings in the criminal case when the parties,
            after the filing of the criminal complaint, have been
            divorced and an order for support entered (whether for
            the same or a different amount) in a Texas District
            Court.

                                           Yours very truly,

                                           WILL WILSON
                                           Attorney General of Texas


                                           By&J.               &‘,,-&&$q
                                              Cecil Cammack, Jr.
CC:br                                         Assistant Attorney General
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman

John Reeves
Sack Price
Sam Ray Wilson

REVIEWED FOR THE ADORE    G-L
By: Morgan Nesbitt
