Roger Gerdes, Jr. v. John Kennamer ( 2005 )

  NUMBER 13-05-198-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

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ROGER GERDES, JR.,                                                        Appellant,

v.

JOHN KENNAMER,                                                            Appellee.

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On appeal from the 23rd District Court

of Matagorda County, Texas

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MEMORANDUM OPINION

Before Justices Rodriguez, Castillo, and Garza

Memorandum Opinion Per Curiam

         On February 10, 2003, Roger Gerdes was held in contempt and jailed for failing to comply with two turnover orders. By subsequent order, Gerdes was again held in contempt for violating an injunction pertaining to the preservation of property subject to final judgment. The court’s order provides, in part:

Gerdes is already incarcerated in the Matagorda County Jail, having been held in contempt by this Court’s order of February 10, 2003. Because he may be held on that contempt finding until March 16, 2005 (which is 18 months after he was first confined), it is this Court’s order that Gerdes continue to be confined for so long after March 16, 2005 until the earlier of (a) Gerdes’ compliance with all of this Court’s turnover orders, including the orders dated October 14, 2002, December 2, 2002, and January 8, 2003, or (b) the expiration of 18 months after March 16, 2005.

Gerdes attempts to appeal this order.

         On March 28, 2005, the Clerk of this Court notified appellant that it did not appear that the order subject to appeal was an appealable order, and requested correction of the defect, if it could be done. Appellant was advised that, if the defect were not corrected within ten days from the date of receipt of this notice, the appeal would be dismissed for want of jurisdiction. See Tex. R. App. P. 42.3. To date, appellant has failed to respond to this Court's notice. We dismiss this appeal for want of jurisdiction.

         The validity of a contempt order cannot be attacked by direct appeal. See Norman v. Norman, 692 S.W.2d 655, 655 (Tex. 1985); Ex parte Williams, 690 S.W.2d 243, 243 n.1 (Tex. 1985). Contempt orders must be reviewed by an application for writ of habeas corpus, if the contemnor has been confined, or by a petition for writ of mandamus, if the contemnor has not been confined. Rosser v. Squier, 902 S.W.2d 962, 962 (Tex. 1995); Ex parte Casillas, 25 S.W.3d 296, 297 n.1 (Tex. App.–San Antonio 2000, orig. proceeding).

         Because we do not have jurisdiction to consider Gerdes’s complaint regarding the contempt order by appeal, we DISMISS this appeal for want of jurisdiction. All pending motions are denied as moot.

                                                                                 PER CURIAM

Memorandum Opinion delivered and filed

this the 5th day of May, 2005.