in Re Kenneth Dewey Ferrell Jr. ( 2014 )

NUMBER 13-14-00130-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN RE KENNETH DEWEY FERRELL JR.
On Petition for Writ of Habeas Corpus.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Benavides1
On February 27, 2014, relator, Kenneth Dewey Ferrell Jr., filed a petition for writ
of habeas corpus through which he seeks release from incarceration for punitive
contempt based on his failure to pay past-due child support.2 On March 22, 2013 and
April 9, 2013, the associate judge proposed and the trial court entered an order enforcing
1 See TEX. R. APP. P. 52.8(d) (“When denying relief, the court may hand down an opinion but is not
required to do so.”); TEX. R. APP. P. 47.4 (distinguishing opinions and memorandum opinions).
2 This original proceeding arises from trial court cause number 97-1235-B, In the Interest of K.N.F.,
a Child, in the 117th District Court of Nueces County, Texas, the Honorable Sandra Watts presiding.
and modifying relator’s support obligation. The order found relator in punitive contempt
of court for failing to timely make four separate child support payments when relator had
the ability to make the payments, but did not, and ordered relator to be jailed for 180 days
for each violation with the commitments to run concurrently. By order issued on
November 13, 2013, the trial court found no reason why sentence should not be imposed
and ordered relator incarcerated. We grant the petition for writ of habeas corpus as stated
herein.
I. STANDARD OF REVIEW
The purpose of a habeas corpus proceeding is not to determine the ultimate guilt
or innocence of the relator, but only to ascertain whether the relator has been unlawfully
confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). In a habeas corpus
proceeding, the order or judgment being challenged is presumed to be valid. In re R.E.D.,
278 S.W.3d 850, 855 (Tex. App.—Houston [1st Dist.] 2009, orig. proceeding); In re
Turner, 177 S.W.3d 284, 288 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding); Ex
parte Occhipenti, 796 S.W.2d 805, 809 (Tex. App.—Houston [1st Dist.] 1990, orig.
proceeding). In order to obtain relief by habeas corpus, the relator must establish that
the underlying order is void because of a lack of jurisdiction or because the relator was
deprived of liberty without due process of law. In re Turner, 177 S.W.3d at 288; In re
Butler, 45 S.W.3d 268, 270 (Tex. App.—Houston [1st Dist.] 2001, orig. proceeding). The
relator bears the burden of showing that he is entitled to relief. In re Munks, 263 S.W.3d
270, 272–73 (Tex. App.—Houston [1st Dist.] 2007, orig. proceeding); In re Turner, 177
S.W.3d at 288.
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II. ANALYSIS
Relator filed a petition for bankruptcy on January 21, 2008 and was not discharged
from bankruptcy until April 12, 2013. By three issues in this original proceeding, relator
contends that: (1) his bankruptcy proceeding stayed the accrual of the past-due child
support payments, (2) the commitment order was entered in violation of the bankruptcy
stay and is void; and (3) the contempt and commitment orders are substantially
ambiguous.
This Court requested that the real party in interest, the Office of the Attorney
General of Texas (“OAG”), file a response to the petition for writ of habeas corpus, and
such response was duly filed on March 7, 2014. In its response, the OAG states that it
was unaware of the bankruptcy stay when it initiated its motion to enforce relator’s child
support obligation. The OAG concedes that “the trial court lacked jurisdiction to issue its
April 9, 2013 order because the automatic stay of the bankruptcy action was never lifted,”
thus, that order was void. The OAG thus requests that we grant relator’s petition for writ
of habeas corpus and order relator to be released from the Nueces County jail.
An automatic stay in bankruptcy prohibits the commencement or continuation of
any judicial action or proceeding against the debtor and any property within the debtor's
bankruptcy estate. See 11 U.S.C.A. § 362(a); Eguia v. Eguia, 367 S.W.3d 455, 458–59
(Tex. App.—Corpus Christi 2012, no pet.). The automatic stay deprives state courts of
jurisdiction over proceedings against the debtor, and any action taken against the debtor
while the stay is in place is void and without legal effect. See Kalb v. Feuerstein, 308
U.S. 433, 439 (1940); Howell v. Thompson, 839 S.W.2d 92, 92 (Tex. 1992); Continental
Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex. 1988); Eguia, 367 S.W.3d
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at 458; In re Pegasus Funds TFN Trading Partners, LP, 345 S.W.3d 175, 176–77 (Tex.
App.—Dallas 2011, orig. proceeding); In re De La Garza, 159 S.W.3d 119, 121 (Tex.
App.—Corpus Christi 2004, orig. proceeding).
Accordingly, we sustain relator’s first and second issues. The trial court’s orders
of March 22, 2013, April 9, 2013, and November 13, 2013 are void because they were
issued during the pendency and in violation of the bankruptcy stay. Because we have
sustained relator’s first and second issues, we need not address relator’s third and final
issue. See TEX. R. APP. P. 47.1, 47.4.
III. CONCLUSION
The Court, having examined and fully considered the petition for writ of habeas
corpus and the response thereto, is of the opinion that relator has met his burden to obtain
relief. We GRANT relator's petition for writ of habeas corpus and ORDER relator released
and discharged from the custody of the Sheriff of Nueces County, Texas.
JUSTICE GINA M. BENAVIDES
Delivered and filed the
7th day of March, 2014.
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