State ex rel. Williams v. Green

746 S.W.2d 940, 1988 WL 28994

• Court: Court of Appeals of Texas
• Decided: March 9, 1988
• Docket: No. 3-87-003-CV
• Status: Published

Opinions

SHANNON, Chief Justice.

Appellant Elizabeth Green Williams seeks to set aside an order of the district court of Travis County that dismissed her motion to modify a pre-existing child support order. The district court signed the dismissal order pursuant to appellee Robert Lynn Green’s motion requesting that the court require the Attorney General of Texas to show his authority to prosecute Elizabeth's motion for modification. This Court will affirm the order dismissing the motion to modify.

By the payment of a minimal fee, Elizabeth Williams secured the services of the Attorney General of Texas to represent her in her effort to modify (increase) a pre-ex-isting child support order. She and Green were divorced by order signed on December 26, 1979. The parties had one child, a son born on April 4, 1974. The district court appointed Elizabeth managing conservator and the court ordered her former husband to pay $175.00 each month as child support until December 1, 1982, at which time the sum increased to $200.00 each month. Both parties were represented by private attorneys in the divorce proceeding.

On March 2,1982, Elizabeth, again represented by a private attorney, filed a motion to modify the pre-existing child support order. She was successful. The district court increased the child support to $875.00 each month beginning on May 1, 1982. That order, signed on April 23, 1982, also contained changes in visitation rights, provisions relating to the child’s health care, requirements for payment of insurance and uninsured medical and dental expenses and provisions for accountings. This modification order was expressly agreed upon by the parties.

In July 1986, Elizabeth, this time represented by the Attorney General of Texas, filed yet another motion to modify (increase) the pre-existing child support order by an unspecified sum. By her motion, Elizabeth did not contend that Green had failed to pay any court-ordered child support.

After hearing, the district court signed an order dismissing Elizabeth’s motion to modify. In its order, the district court found that there was no statutory authority for the Attorney General to represent Elizabeth. The district court ordered that the motion to modify be dismissed “without prejudice to the right of [Elizabeth] to refile the same by counsel other than the Attorney General of the State of Texas.”

By her single point of error, Elizabeth claims that the district court erred in dismissing the motion to modify for the reason that the Attorney General “has authority to initiate legal actions to increase child support.”¹

The claimed source of authority for the Attorney General’s representation of Elizabeth is found in Human Resources Code § 76.007 that provides:

“Attorneys employed by the attorney general may represent the state or other parties in a suit to establish a child support obligation, collect child support, or determine paternity brought under the authority of federal law or this chapter.” (Emphasis added.)

Tex.Hum.Res.Code Ann. § 76.007 (Supp. 1988).

Because § 76.007 empowers the Attorney General to represent a private person in a suit “to establish a child support obligation,” (emphasis supplied) Elizabeth reasons that the Attorney General is also authorized to represent her in her effort to modify (increase) a pre-existing child support order. This Court does not agree.

If the meaning of a statute is plain and unambiguous, there is no need to resort to the rules of construction. Ex parte Roloff, 510 S.W.2d 918 (Tex.1974); Fox v. Burgess, 157 Tex. 292, 302 S.W.2d 405 (1957). In such case, the Court will apply and enforce the statute as it reads. Gateley v. Humphrey, 151 Tex. 588, 254 S.W.2d 98 (1952).

Section 76.007 authorizes the Attorney General to represent private persons by filing suit in three specific situations:

(1) to establish a child support obligation

(2) to collect child support

(3) to determine paternity

By her motion, Elizabeth was obviously not attempting to collect past due child support nor was she attempting to determine paternity. Instead, it is plain that she sought the modification of a pre-existing child support order to increase Green’s child support obligation.

Because the meaning of the phrase “to establish a child support obligation” is not ambiguous, but instead is straight-forward and clear, it is unnecessary for this Court to indulge in conjecture as to the intentions of the legislature. Instead, the language, being 'plain and clear, should be given effect as written. Gateley v. Humphrey, supra. It is manifest that “to establish a child support obligation” is to create an obligation to pay child support when one did not before exist.

The legislature is no stranger to the motion for modification practice now set out in Texas Family Code § 14.08.² As a matter of fact, the legislature has amended § 14.08 more than a few times. Being entirely familiar with the concept of motions for modification, the legislature would have most certainly employed that term in § 76.007 had it, in fact, intended that the Attorney General have the authority to represent private persons in their efforts to increase pre-existing child support orders.

The order of the district court is in all things affirmed.

Affirmed.

1 . Elizabeth filed a notice of appeal pursuant to Tex.App.R. 40(a)(2). The notice of appeal contains the following statement: "As the appeal is made by the ATTORNEY GENERAL of the State of Texas on behalf of ELIZABETH (GREEN) WILLIAMS, no appeal bond is required."

Although not briefed by the parties, there seems to be doubt that Elizabeth has perfected an appeal from the district court’s order of dismissal. Rule 40(a)(2) provides in pertinent part:

When security for costs on appeal is not required by law, the appellant shall in lieu of a bond file a written notice of appeal with the clerk or judge which shall be filed within the time otherwise required for filing the bond, (emphasis supplied)

Presumably, the Attorney General takes the position that a bond is not required by reason of Tex.Civ.Prac. & Rem.Code § 6.001:

(a) A governmental entity or officer listed in Subsection (b) may not be required to file a bond for court costs incident to a suit filed by the entity or officer or for an appeal or writ of error taken out by the entity or officer and is not required to give a surety for the issuance of a bond to take out a writ of attachment, writ of sequestration, distress warrant, or writ of garnishment in a civil suit.

(b) The following are exempt from the bond requirements:

(1) this state;

(2) a department of this state;

(3) the head of a department of this state;

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Elizabeth Green Williams has taken this appeal, however, and not the (1) State, (2) a department of this state or (3) the head of a department of this state.

2 . The power of the district court to alter or change child support orders has long been recognized. Ex parte Roberts, 139 Tex. 644, 165 S.W.2d 83 (1942). After Title 2 of the Texas Family Code became effective in 1974, the proceeding to alter or change a pre-existing child support order became known as a “motion to modify." See Tex.Fam.Code Ann. § 14.08 (1986 & Supp. 1988).