in Re Stephanie Dunlap Hadsall ( 2023 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
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No. 02-22-00436-CV
___________________________
IN RE STEPHANIE DUNLAP HADSALL
Original Proceeding
158th District Court of Denton County, Texas
Trial Court No. 17-2904-158
Before Birdwell, Womack, and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
I. INTRODUCTION
Relator Stephanie Dunlap Hadsall (Mother), whom the trial court held in
contempt and confined to jail, filed a petition for writ of habeas corpus in our court in
which she asserted that the trial court had denied her due process and the right to
counsel. Real Party in Interest Mikel Ray Hadsall (Father) has not filed a response.
We agree that the trial court’s contempt and commitment orders are void and grant
Mother’s petition for writ of habeas corpus.
II. DISCUSSION
A. MOTHER’S CONTENTIONS
In her petition, Mother asserts that the trial court denied her due process
because it denied her the right to counsel.1 See Tex. Fam. Code Ann. § 157.163; In re
Rivas-Luna, 528 S.W.3d 167, 172 (Tex. App.—El Paso 2017, orig. proceeding). She
maintains that the trial court failed to advise her of her right to counsel, failed to
appoint counsel on the basis of indigence, and—even if she were not indigent—failed
to afford her the opportunity to retain counsel.
B. SECTION 157.163 OF THE TEXAS FAMILY CODE
Specifically, Mother contends that the trial court failed to comply with
Section 157.163 of the Texas Family Code, which addresses the steps that the trial
court is supposed to follow when a pro se party (such as Mother was in the trial court)
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Mother maintains that she never waived her right to counsel.
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appears in a contempt proceeding. See Tex. Fam. Code Ann. § 157.163; In re Pass,
No. 2-05-457-CV, 2006 WL 668744, at *1 (Tex. App.—Fort Worth Mar. 16, 2006,
orig. proceeding) (mem. op.). This statute requires the trial court to determine
whether incarceration of the respondent is a possible result of the enforcement
proceedings. Tex. Fam. Code Ann. § 157.163(a). If the court determines that the
respondent will not be incarcerated as a result of the proceedings, it may require a
respondent who is indigent to proceed without an attorney. Id. § 157.163(c); Pass,
2006 WL 668744, at *1. But if incarceration is a possible result, the trial court “shall
inform a respondent not represented by an attorney of the right to be represented by
an attorney and, if the respondent is indigent, of the right to the appointment of an
attorney.” Tex. Fam. Code Ann. § 157.163(b); Pass, 2006 WL 668744, at *1. If the
respondent claims indigency and requests the appointment of an attorney, the court
must require the respondent to file an affidavit of indigency. Tex. Fam. Code Ann.
§ 157.163(d). When determining indigency, the court may also hear evidence. Id. If
the court determines that the respondent is indigent, it must appoint an attorney to
represent the respondent. Id. § 157.163(e). Section 157.163 requires courts to
admonish pro se litigants of their right to counsel, regardless of whether they are
indigent. Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997) (orig. proceeding); Pass,
2006 WL 668744, at *1. Thus, a respondent facing incarceration must be informed of
her right to counsel and must either waive that right or be represented by counsel. See
Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (“We hold, therefore, that absent a
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knowing and intelligent waiver, no person may be imprisoned for any offense,
whether classified as petty, misdemeanor, or felony, unless he was represented by
counsel at his trial.”); Pass, 2006 WL 668744, at *1; see also In re Luebe, 983 S.W.2d 889,
890 (Tex. App.—Houston [1st Dist.] 1999, orig. proceeding) (“[C]ontempt cases are
considered quasi-criminal in nature, and their proceedings should conform as nearly
as practicable to those in criminal cases.”). Absent a knowing and intelligent waiver
of the right to counsel made on the record, an order holding a respondent in
contempt is void. Pass, 2006 WL 668744, at *1.
C. THE TRIAL COURT DID NOT COMPLY WITH SECTION 157.163
The reporter’s record shows that the trial court was aware that Father was
attempting to put Mother in jail for contempt. Tex. Fam. Code Ann. § 157.163(a).
The trial court was also aware that Mother was appearing pro se. This triggered the
trial court’s responsibility to inform Mother of her right to be represented by an
attorney and, if she was indigent, of the right to the appointment of an attorney. Id.§ 157.163(b). The trial court failed to do so.
Instead, the trial court—ignoring the requirements of Section 157.163—
informed Mother that she was neither indigent nor entitled to appointed counsel.
When Mother informed the trial court that she was not an attorney and could not
afford to retain one, the trial court asked Mother how much she made per month.
Mother answered that she made $4,000 per month, and the court ruled, “That’s
beyond that amount at which I can grant a court-appointed attorney. And so you’d
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be representing yourself.” Mother queried, “So I’m not entitled to counsel?” The
court responded, “No. You make too much money.”
Although the trial court made an inquiry into whether Mother was indigent, it
did not follow the procedure set out in Section 157.163. Once Mother communicated
to the trial court that she was indigent and wanted an attorney, the trial court was
required to have her fill out and file an affidavit of indigency. Id. at § 157.163(d). The
trial court skipped this requirement.
Furthermore, the fact that Mother was employed—although certainly a relevant
factor—was not necessarily dispositive of whether she was indigent for purposes of
having counsel appointed. See Rivas-Luna, 528 S.W.3d at 172 n.2 (“It is worth noting
. . . that a finding of indigence is not precluded by evidence that the party claiming
indigence is employed. The proper inquiry is whether the party’s income is exceeded
by her expenses.”); Luebe, 983 S.W.2d at 890 (noting that Section 157.163 gives no
guidelines for determining indigency and that “[n]o rigid standard exists for
determining indigency for the purpose of appointing counsel”).
Mother then asked, “Okay. Am I entitled to time to retain counsel?” The
court responded, “Yes, but that will cause [Father’s] fees to go up, which is something
that most likely I’d hold you responsible for.” Father opposed giving Mother more
time to retain counsel, and Mother again asserted that she was indigent, “Currently, I
don’t have counsel. I mean, I can either make rent or I can make child support. And
I’m making rent.” Mother did not waive her right to counsel merely by stating on the
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record that she could not afford an attorney. See, e.g., Rivas-Luna, 528 S.W.3d at 171(“Relator stated on the record that she could not afford an attorney and she would
have to do the best she could. This does not constitute a waiver of the right to
counsel or an agreement to proceed pro se.”). But cf. In re Marks, 365 S.W.3d 843, 846
(Tex. App.—Fort Worth 2012, orig. proceeding) (holding that the relator knowingly
and intelligently waived his right to counsel after (1) the trial court informed him that
he had the right to have counsel present and that if he could not afford one, one
would be provided for him, (2) the relator acknowledged to the trial court that he
understood those rights, (3) the relator never asserted that he was indigent, and (4) the
hearing proceeded after the relator expressly waived his right to remain silent).
Indeed, as discussed above, Section 157.163 is designed to ensure that a respondent’s
right to counsel is protected regardless of her ability to pay. See Tex. Fam. Code Ann.
§ 15.163(d)–(e). Nevertheless, the hearing proceeded with Mother unrepresented by
counsel.
Mother relies on Rivas-Luna in which the El Paso Court of Appeals wrote,
The record before the Court reflects that incarceration was certainly a
possible result of the enforcement hearing. Consequently, the trial court
was required to admonish Relator of her right to counsel, and based on
her assertion that she could not afford an attorney, the trial court should
have determined whether she was entitled to appointed counsel. [The
real party in interest] contends that Relator is not indigent because she
mentioned at the hearing that she has a job. It is unnecessary to address
this argument because the trial court’s failure to admonish Relator of her
right to counsel renders the contempt order void.
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Id. at 172. We agree with Mother that the trial court’s failure to comply with Section
157.163 renders the contempt and commitment orders void. “[S]ection 157.163
requires courts to admonish pro se litigants of their right to counsel, regardless of
whether they are indigent or not.” Acker, 949 S.W.2d at 316; Rivas-Luna, 528 S.W.3d
at 172. Because we hold that the trial court did not properly admonish Mother of her
right to counsel and of her right to appointed counsel if she was indigent, we need not
address Mother’s other contentions.
III. CONCLUSION
Accordingly, we grant Mother’s petition for writ of habeas corpus. The trial
court’s contempt and commitment orders are void.
Because we previously ordered Mother released from the Denton County Jail
pending final determination of her petition for writ of habeas corpus, no further
action regarding her confinement is required.
/s/ Brian Walker
Brian Walker
Justice
Delivered: February 6, 2023
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