S. v. D.

• Decision Date: 01 November 1971
• Docket Number: Civ. A. No. CA-3-4336-B.
• Citation: 335 F. Supp. 804
• Parties: Linda R. S. et al., Plaintiffs, v. Richard D. and The State of Texas et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

335 F. Supp. 804

Linda R. S. et al., Plaintiffs, v. Richard D. and The State of Texas et al., Defendants.

Civ. A. No. CA-3-4336-B.

United States District Court, N. D. Texas, Dallas Division.

November 1, 1971.

Windle Turley, Dallas, Tex., for plaintiffs.

John Tolle, Dallas, Tex., for Henry Wade.

Pat Bailey, Austin, Tex., for State of Tex.

Before THORNBERRY, Circuit Judge, and HUGHES and HILL, District Judges.

ROBERT M. HILL, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff Linda R. S. brings this suit "on behalf of herself, her minor daughter, and on behalf of all other women and minor children who have sought, are seeking, or in the future will seek to obtain support for socalled illegitimate children from said child's father." Named as defendants are Richard D., the alleged father of plaintiff's child; the State of Texas; Dallas County District Attorney, Henry Wade; Honorable Robert W. Calvert, Chief Justice of the Texas Supreme Court; and Honorable Crawford Martin, Attorney General for the State of Texas. The relief requested by plaintiff is a declaratory judgment that two Texas child support laws are unconstitutional in their exclusion of children of unwed parents, a permanent mandatory injunction requiring the State of Texas and its officers to cease their alleged discriminatory application of the child support laws in question, and an order requiring Richard D. to pay child support.

Plaintiff alleges that she lived with defendant Richard D. for several months, became pregnant by him, and gave birth to his baby girl in late 1970. Plaintiff contends that the father refuses either to marry her or to support the child. She has requested that this three-judge court be convened to consider her contention that two Texas statutes are unconstitutional. The statutes in effect require fathers to support their legitimate but not their illegitimate children. The Court is of the opinion that this is not a proper case for three judges and remands to the District Judge to whom the application for relief was originally presented.

Congress passed the first three-judge court statute in reaction to the United States Supreme Court's decision in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In Young a federal district court temporarily enjoined the Minnesota Attorney General from enforcing Minnesota's maximum rates for railroad operation. The Supreme Court upheld the district court's power to grant the injunction and a flood of litigation by utilities followed. Many district courts struck down state statutes with abandon, and in 1910 Congress required that three judges were necessary to enjoin a state official from enforcing a state statute. The present three-judge court statute, 28 U.S.C. § 2281, is quoted below.¹

Because of the burdensome aspects of three-judge courts, the Supreme Court has narrowly construed § 2281. The following conditions must be met for a three-judge court to be properly convened:

(1) An interlocutory or permanent injunction must be sought.

(2) The injunction must be sought to restrain the enforcement of a state statute.

(3) The injunction must be sought against a state official.

(4) The statute must be challenged on grounds of federal unconstitutionality.

Plaintiff has challenged the constitutionality of two Texas statutes.

Article 602

Article 602 of the Texas Penal Code provides:

Any husband 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 conviction shall be punished by confinement in the County Jail for not more than two years. (Emphasis added)

This three-judge court has been properly convened insofar as the challenge to Article 602 is concerned.

Article 602 provides that any "parent" who fails to support his "children" is subject to prosecution. However, Texas courts have held that only parents of legitimate children are amenable to prosecution under the statute. Beaver v. State, 96 Tex.Cr.R. 179, 256 S.W. 929 (1923). Therefore the proper party to challenge the constitutionality of Article 602 would be a parent of a legitimate child who has been prosecuted under the statute. Such a challenge would allege that because the parents of illegitimate children may not be prosecuted, the statute unfairly discriminates against the parents of legitimate children.

Linda R. S., plaintiff, cannot be prosecuted under the statute because the minor child involved in this case is illegitimate. Plaintiff therefore lacks standing to challenge the statute and this portion of her case must be dismissed.

Article 4.02

Article 4.02 of the Texas Family Code provides:

Each spouse has the duty to support his or her minor children. The husband has the duty to support the wife and the wife has the duty to support the husband when he is unable to support himself. A spouse who fails to discharge the duty of support is liable to any person who provides necessaries to those to whom support is owed.

This statute is enforceable through a civil suit for damages against a defaulting spouse. There is no state official involved in the enforcement of Article 4.02. Since § 2281 provides that a three-judge court is proper only to enjoin a state official from enforcing a state statute, a three-judge court may not consider the challenge to Article 4.02. This portion of the case must be remanded to the judge to whom the application for injunction was originally presented.

We note in passing a further difficulty with this case. Plaintiff is requesting that a mandatory injunction issue against Henry Wade, the Dallas County District Attorney, ordering him to prosecute Richard D. and, apparently, all other fathers of illegitimate children who have refused to support them. Richard D. has never appeared in this case. Moreover, Linda R. S. and the State of Texas, without Richard's participation, stipulated that Richard is the father of Linda's child.

The portion of the case challenging Article 602 has been properly brought before this three-judge court. The Court dismisses the challenge to Article 602 for lack of standing.

The portion of this case challenging Article 4.02 is improper for the consideration of three judges. This three-judge court disbands as to the challenge to Article 4.02 and remands this portion of the case to the judge to whom the application for injunction was originally presented for further proceedings.

It is so ordered.

HUGHES, District Judge (dissenting):

I concur in the majority opinion that plaintiffs' challenge to the constitutionality of Article 602 of the Texas Penal Code has been properly brought before a three-judge court. I likewise concur in the majority opinion that the portion of the case in which the plaintiffs challenge Article 4.02 of the Texas Family Code is improper for the consideration of three judges and should be remanded to the initiating judge for further proceedings.

I dissent from the majority opinion that Linda R. S., plaintiff, for herself and her child and the class she represents, has no standing to challenge the constitutionality of Article 602 of the Texas Penal Code.

Article 602 provides in part that "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 * * *."

The statute has been construed by Texas courts to apply to the support of legitimate children but not to the support of illegitimate children. It is this application of the statute which is being challenged by Linda R. S.

The majority seeks to dismiss for lack of standing the question of the constitutional application of Article 602. This position is clearly dubious when considered in the light of recent opinions of the Supreme Court which have significantly altered the focus of the standing test. The Court in Baker v. Carr announced that standing exists when the complainant has "such a personal stake in the outcome of the controversy as to assure * * * concrete adverseness * * *." 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). In Flast v. Cohen the retreat from requiring a "recognized legal interest" continued when the Court declared that if the required "nexus" exists between the claimant's status and "the nature of the * * unconstitutional action" then "the issues will be contested with the necessary adverseness * * * to assure that the constitutional challenge will be made in a form * * * capable of judicial resolution." 392 U.S. 83, 106, 88 S.Ct. 1942, 1955, 20 L.Ed.2d 947 (1968). The question of whether a litigant has standing does not rest on some artificial determination of whether there is a "recognized legal interest" but rather whether the Court should grant judicial review in order that justice may be done.

Since 1968 the Supreme Court has redefined the test for standing to mean that it arises when there is "injury in fact, economic or otherwise," within the "zone of interests to be protected" by the law in question. Association of Data Processing Serv. Organizations v. Camp, 397 U.S. 150, 152-153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed. 2d 192 (1970). In Hardin v. Kentucky Utilities Co., 390 U.S. 1, 6, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968), the Court stated that when a particular statutory provision indicates a legislative intent to protect a specific interest or to prohibit certain conduct, the party injured by nonfeasance or misfeasance of the governmental agency in the enforcement of the provision has standing to require compliance with that provision. A person for whom the statute was designed to protect would have standing to bring a suit to enjoin an alleged...