You Can Only Make the OAG do so Much…

Recently , the Fourteenth Court of Appeals confirmed limits on what you can force the Office of the Attorney General (OAG) to do. In in-re-h-g-j  No. 14-15-00551-CV, 2016 WL 6561468 (Tex. App.–Houston [14th Dist.] 2016, no pet. h.) (11-03-16), the Court used Texas Government Code 22.002(c) to bar the lower court from ordering the OAG to disburse funds to a party other than the custodial parent.

Texas Government Code 22.002(c) states:

Only the supreme court has the authority to issue a writ of mandamus or injunction, or any other mandatory or compulsory writ or process, against any of the officers of the executive departments of the government of this state to order or compel the performance of a judicial, ministerial, or discretionary act or duty that, by state law, the officer or officers are authorized to perform.

An injunction includes an order mandating particular conduct, such as making a disbursement to the amicus in this case.

Since the Attorney General himself is an officer of the executive department, his agency falls under this statute, and only the Supreme Court of Texas could compel the disbursement of funds.

While the holding is correct, this limits the ability of a non-custodial parent to recover funds that should not have been paid or were taken. For example, sometimes there is a delay between a new final order terminating child support and an employer implementing that order, and wages are improperly withheld. Or a tax check for over payment of taxes is withheld by the OAG because the order terminating child support has not been processed. Both situations result in monies going to the custodial parent and now, without the option to force the OAG to put a hold on those funds for disbursement back to the noncustodial parent, the noncustodial parent must sue the custodial parent. Many times they can end up with a judgment but the money is long gone.

NOTE: This court chose to sidestep an analysis of executive director as outlined in Texas Gov’t Code 22.002(c), such as the Attorney General, and an executive agency, like the Office of the Attorney General, but I would believe that the general thought of separation of powers should hold true to both.

 

About CJ.Harding
Chris believes one of the most important aspects of family law is seeing the 'big picture.' This means understanding the law, the facts of your case and the range of possible outcomes. Only after knowing each of those can an attorney convey the risks and potential results and guide you to make the right decision for your case, your life and your family. He understands every person and every case is unique. Chris will advocate for the very best possible result in your case. He has worked on a variety of family law cases, including tracing of assets, property division of estates worth more than one million dollars, international and interstate child custody issues, enforcement actions as well as pre-marital and post-marital agreements. Chris continues to be a student of the Law and helps to educate others by maintaining the "Hot Topics" section of the Firm web site, which features current issues in Texas family law. Topics have included how a bankruptcy can affect child support and the differences between alimony and court ordered spousal maintenance. Chris joined the firm after graduating cum laude from Southern Methodist University Dedman School of Law. During his time at SMU, Chris competed in numerous mock and moot competitions and placed nationally. Chris is a native Texan, growing up in the Houston area and completing his undergraduate studies at the University of Texas at Austin.

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