Ex Parte Bernie Joel Finnegan, Jr. ( 1996 )

Finnegan, Ex Parte

IN THE

TENTH COURT OF APPEALS

No. 10-95-292-CV

EX PARTE BERNIE JOEL FINNEGAN, JR.,

                                                                                               Relator

Original Proceeding

O P I N I O N

          This is an original habeas corpus petition brought by Bernie Joel Finnegan, Jr., relator. He contends that the civil contempt order issued against him in the 66th District Court of Hill County is void. We agree and grant the writ.

          On June 13, 1995, the Honorable F.B. McGregor, Jr., signed a warrant authorizing the search of Finnegan's home. Sought to be seized by law enforcement officials were (1) pit bulldogs allegedly owned by Finnegan and his wife, Melissa, for the purpose of dog fighting and (2) any other articles related to the dogs or dog fighting. See Tex. Penal Code Ann. § 42.10 (Vernon 1994). Incorporated in the search warrant was an order issued by the trial court to the Finnegans "to not sell, release or in any other manner dispose of or relinquish control [over] said pit bulldogs or any other property subject to seizure under this warrant from the jurisdiction of this court until otherwise authorized by this court."

          On June 15, law enforcement officials searched the Finnegans' home and found 47 pit bulldogs on their property. The officials inventoried each one of them by name, age, weight, and color. They also found several items of property related to the dogs, such as veterinary medicines, photographs of the dogs, and dog magazines.

          On August 17 the State filed a motion for contempt, alleging the Finnegans had violated the above-quoted order by "removing and disposing of the pit bulldogs in their custody." The trial court issued a show cause order that same day and scheduled a hearing on the State's motion for September 8.

          Following the hearing on September 8, the trial court found both Bernie and Melissa Finnegan to be in civil contempt. The court ordered each party to pay a fine of $490. It also ordered Bernie incarcerated in the Hill County Jail for either five months or until he (1) provided access to his property so law enforcement officials could perform another inventory of the contents of the premises and (2) demonstrated to law enforcement officials that the dogs and other items seized by these officers during their execution of the June 13 search warrant had been maintained pursuant to the court's June 13 order. The June 13 order was not included in either the trial court's contempt or commitment orders. Reference was made, however, to exhibits entered into evidence at the contempt hearing which contained the order. Bernie then brought this habeas corpus petition.

          To confine a contemner to jail in accordance with the requirements of due process, the trial court's commitment order must be supported by a written order of contempt. Ex parte Hernandez, 827 S.W.2d 858 (Tex. 1992) (per curiam) ("It is well established that both a written judgment of contempt and a written order of commitment are required by due process to imprison a person for civil constructive contempt."); Ex Parte Herrera, 820 S.W.2d 54, 56 (Tex. App.—Houston [14th Dist.] 1991, orig. proceeding). A petition for a writ of habeas corpus may be granted if the order of contempt is void on its face or is so completely without evidentiary support as to render it void. Ex Parte Herrera, 820 S.W.2d at 56. An order of contempt is void on its face if it does not "clearly state in what respect the court's order has been violated and that the party is committed to jail until the court's order is complied with to the extent required by the court." Ex Parte Proctor, 398 S.W.2d 917, 918 (Tex. 1966) (orig. proceeding).

          Here, the order of contempt does not state with any specificity the manner in which Bernie Finnegan violated the court's June 13 order. Ex Parte Aguilera, 768 S.W.2d 425, 427 (Tex. App.—El Paso 1989, orig. proceeding); Ex parte Davis, 450 S.W.2d 97, 98 (Tex. Civ. App.—San Antonio 1970, orig. proceeding). The June 13 order charged Bernie with the duty not to sell, release, or in any other manner dispose of or relinquish control over the dogs. It also charged him with the responsibility not to sell, release, or in any other manner dispose of or relinquish control over any other property subject to seizure under the June 13 search warrant. The contempt order does not indicate which, if any, of these two provisions were violated. It does not indicate whether Bernie had allegedly violated the order by disposing of the dogs or by disposing of "other property subject to seizure." If Bernie had allegedly disposed of the dogs, the contempt order does not state which ones or even how many. If Bernie was in violation of the June 13 order in disposing the property subject to seizure, the contempt order does not indicate which, if any, of the items that were allegedly disposed. This lack of specificity renders the contempt order void. See Ex Parte Sinclair, 746 S.W.2d 956, 958 (Tex. App.—Houston [14th Dist.] 1988, orig. proceeding) (Under the statute governing child support enforcement orders, failure of trial court to specify which of two orders were grounds for contempt rendered the contempt order void. See Tex. Fam. Code Ann. § 157.166 (Vernon Pamph. 1996)). Relator's petition for a writ of habeas corpus is granted.

                                                                                 PER CURIAM

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

          (Chief Justice Thomas not participating)

Petition for writ of habeas corpus granted

Opinion delivered and filed February 14, 1996

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