Ex Parte Stringer , 1976 Tex. App. LEXIS 3383 ( 1976 )

COLEMAN, Chief Justice.

MAJORITY OPINION

This is a petition for writ of habeas corpus, an original action filed in this court. The Relator will be ordered discharged from the custody of the Sheriff of Harris County, Texas.

On July 12, 1976, Patsy and Robert Stringer were divorced. In the divorce decree the trial court found that the defendant had fraudulently deposited the sum of $11,000.00 in a savings and loan association in his mother’s name. The decree ordered Robert Stringer to “obtain said $11,000.00 and put it in Patsy Ray Stringer’s name in lieu of child support . . . ”

Patsy Stringer instituted a contempt proceeding and on October 28, 1976, Robert G. Stringer was found to be in contempt of court “by reason of his failure and refusal to place the aforementioned sum of $11,-000.00 in the name of Patsy Ray Stringer” and his punishment for such contempt was fixed at confinement in the county jail of Harris County, Texas, for a period of 150 days.

A petition for writ of habeas corpus was filed with this court wherein the Relator, Robert G. Stringer, complains that the order committing him to jail is void because (1) “the order under which the hearing was conducted and the commitment issued is vague and nonspecific . . . ” (2) “the Relator, over objection, was compelled to answer questions relative to his behavior which made the basis for his commitment, when said testimony was obtained in disregard of his constitutional privilege against self-incrimination.”

A transcript of the proceedings in the trial court at the contempt hearing reveals that the first witness called to testify was Robert G. Stringer. His attorney promptly objected to his being called as a witness and to his being sworn in as a witness on the ground that the testimony which he would be required to give might tend to incriminate him in violation of his rights under the 5th Amendment to the Constitution of the United States of America. This objection was overruled and petitioner was sworn as a witness. Thereafter the same objection was made to various questions put to Mr. Stringer. On each occasion the objection was overruled and the Relator was compelled to answer.

The principal questions arising in this case were considered by the Supreme Court of Texas in Ex Parte Werblud, 536 S.W.2d 542 (1976). In Ex Parte Werblud the court stated:

“The purpose of civil contempt is remedial and coercive in nature. A judgment of civil contempt exerts the judicial authority of the court to persuade the con-temnor to obey some order of the court where such obedience will benefit an opposing litigant. Imprisonment is conditional upon obedience and therefore the civil contemnor ‘carries the keys of [his] prison in [his] own pocket.’ ... In other words, it is civil contempt when one ‘may procure his release by compliance with the provisions of the order of the court.’ Ex Parte Hosken, 480 S.W.2d 18 (Tex.Civ.App. — Beaumont 1972). This is the settled rule in Texas. Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145, 147 (1948).

“Criminal contempt on the other hand is punitive in nature. The sentence is not conditioned upon some promise of future performance because the contemnor is being punished for some completed act which affronted the dignity and authority of the court . . . This rule was well expressed in Ex Parte Hosken at 23: “ ‘Where the primary purpose of the proceeding is to vindicate public authority, the proceeding is usually denominated criminal. The action is punitive in nature. . . . Ordinarily, the punishment is fixed and definite and no subsequent voluntary compliance on the part of the defendant can enable him to avoid punishment for his past acts.’ ”

In our case the testimony of Robert G. Stringer at the trial was that he had spent the $11,000.00 and was no longer able to comply with the order of the court. The penalty assessed against Mr. Stringer was imprisonment for a term of 150 days. No procedure was set out in the judgment by which Mr. Stringer could purge himself. The penalty is punitive rather than coercive.

In Ex Parte Werblud the court said:

“The state called Werblud as its first witness and Werblud’s attorney objected to this procedure on the ground that it violated his client’s privilege against self-incrimination. The court of civil appeals overruled the objection and Werblud was questioned extensively by the state concerning his knowledge of and control over the rendering plant operations. Many constitutional rights are accorded criminal contemnors, including the privilege against self-incrimination.”

Thereafter the court held that the defendant in a criminal case has the privilege of refusing to give any testimony in the case and that it is universally held that the defendant may refuse to be sworn at all. The majority opinion concludes:

“Werblud was charged with criminal contempt and his attorney correctly asserted his client’s privilege against self-incrimination as a reason that he should not have been sworn and compelled to testify at all.”

Here we have a defendant who is charged with criminal contempt of court and has objected to being called and sworn as a witness, and thereafter, to being required to answer specific questions. In each instance Mr. Stringer’s attorney correctly asserted his client’s privilege against self-incrimination. Mr. Stringer should not have been sworn and compelled to testify once he had asserted his privilege against self-incrimination. The order of commitment is void and Relator must be discharged from custody.

We call attention to a quotation from Ex Parte Hosken, 480 S.W.2d 18 (Tex.Civ.App. —Beaumont 1972), reading:

“The guilt or innocence of Relator is not brought into question by this habeas corpus proceeding — only the legality of his detention is relevant. Gilbert v. State, 437 S.W.2d 444, 447 (Tex.Civ.App. —Houston, 14th Dist. 1969, error ref. n. r. e.). Consequently, our action discharging Relator from custody under the order herein mentioned is without prejudice to the right of the court to try the issue of contempt in a proceeding conducted in accordance with law.”

The Relator is discharged from custody under the order of commitment dated the 28th day of October, 1976, in Cause No. 1,057,687, styled Patsy Ray Stringer v. Robert Gerald Stringer, in the Court of Domestic Relations No. 5, Harris County, Texas, Associate Justice Peden dissenting.