Divorce Decree is from 1988 in County A. Wife and 2 children moved out of County A at some point and now live in 3 different counties (B, C, & D). Art. 13.16 CCP is a specific statute that states criminal nonsupport may be prosecuted in the county where the offended spouse or child is residing at the time the information or indictment is presented.
I told the investigator that the statute provides for venue in counties (B, C, or D) but he has his heart set on County A. He sited State v. Paiz, 817 S.W.2d 84 (Tex. Crim. App. 1991).
Do you think the divorce decree is enough to establish venue in County A? Or a few missed payments at the beginning is enough to establish venue in County A.
Secondly, what about statute of limitations. Child 1 turned 18 years old on 7/10/03 and child 2 turned 18 years old on 6/16/04. The statute of limitations is 3 years. Regardless of which county has venue the state can only prosecute for child 2 at this point. Right?
I don't see really how Paiz is particularly applicable, since it's just concerned with non-resident defendants.
If the only thing connecting you to County A is the divorce decree, I don't think that's enough. But as long as the offense started there, as in he was actually not supporting the kids then, I'd think that would be okay. Your better bet would be to go for the county the kids lived in the majority of the time.
And yes, I think you can only go with Child 2 on SOL grounds. What was the reason for the delay?
With regard to the older child, check the divorce decree to be certain that the support order actually ended upon the child's 18th birthday. Some parents are ordered to pay support past that date, usually if the child is still enrolled in high school, but occasionally beyond that for college as well, if the parties agreed to it. Sometimes older children with disabilities are supported even into adulthood by that order. You might not be lucky enough to have one of these as your situation, but if you do, your limitations period may not be expired on the oldest child.
Are you stating that if the defendant missed a few payments in County A, then that county may have continuing venue even after the mother and children moved to another county? (Similar to theft offenses State v. Weaver, 982 S.W.2d 892 (Tex. Crim. App. 1998)).
Criminal nonsupport is a continuing offense. Belcher v. State, 962 S.W.3d 653, 656 (Austin 1998). So I don't see why not. One element of your offense occurred in County A, after all. I still don't think it's the best idea, but I think it would work.
Thank you for your help.
This probably too late, but there is a special venue rule for criminal nonsupport. Criminal nonsupport "may be prosecuted" in the count where the offended spouse or child is residing at the time the indictment or information is presented. Does this mean that is the only county where the case can be prosecuted? CCP 13.16
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