in Re Bruce Carter ( 2014 )

Opinion issued June 19, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-01021-CV
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IN RE BRUCE CARTER, Relator
Original Proceeding on Petition for Writ of Habeas Corpus
MEMORANDUM OPINION
Relator, Bruce Carter, requests habeas corpus relief from a November 22,
2013 trial court “Initial Order Holding Respondent in Contempt and for
Commitment” and a November 25, 2013 trial court “Order Holding Respondent in
Contempt, Granting Judgment, and for Commitment to County Jail.”1 On
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The underlying case is In the Interest of M.A.R.C., cause number 2008-71167,
pending in the 311th District Court of Harris County, Texas, the Honorable Denise
Pratt presiding.
November 27, 2013, after a preliminary review of Carter’s petition for writ of
habeas corpus, we ordered Carter released upon his posting of a bond in the
amount of $500.00, pending a final determination of his petition. Because we
conclude that Carter is entitled to relief, we grant his petition for writ of habeas
corpus, order Carter released from the bond set by this Court on November 27,
2013, and order him discharged from custody.
Background2
On October 25, 2010, the trial court signed an Order in Suit Affecting the
Parent-Child Relationship. Pursuant to this order, Carter was ordered to pay child
support in the amount of $530.00 per month to real party in interest, Yalisha Reed.
Carter was also ordered to pay retroactive child support in the amount of $25.00
twice per month to Reed, to maintain health insurance for his child, and to pay
reimbursement for health care expenses incurred by Reed.
On July 24, 2012, the trial court signed “Additional Orders,” requiring
Carter to allow Reed to have telephonic communication with their child each day
and to pick up and administer medication for the child.
On April 15, 2013, Reed filed a “Second Amended Motion for
Contempt/Enforcement.” The motion requested an order confining Carter “to the
2
Carter did not file a transcript of the underlying proceeding with his petition. See
TEX. R. APP. P. 52.7(a)(2). Nevertheless, the testimony adduced at the hearing is
not relevant or necessary to the disposition of this petition. Id.
2
county jail for eighteen months or until Respondent complies with the order of the
Court” and placing him on community supervision for 10 years, reimbursement of
medical expenses, judgment on arrears, and attorney’s fees.
On November 22, 2013, the trial court signed an “Initial Order Holding
Respondent in Contempt and for Commitment.” In this order, the trial court did
not identify any order that Carter was alleged to have violated or set forth any
findings regarding how Carter violated a court order.3 Nevertheless, the trial court
“ADJUDGED that Respondent, Bruce Carter, is in CONTEMPT OF THIS
COURT for each separate violation of said court order” and “ORDERED that
punishment for each separate violation is assessed, concurrently, at confinement in
the county jail of Harris County, Texas, for a period of 180 days.” The trial court
further ordered that Carter was to be confined “from the date of confinement[,] 11-
22-13 at 6 pm[,] until 11/24/13 at 6:00 pm” and “that the Sheriff of Harris County,
Texas, take into custody and commit to the jail of Harris County, Texas,
Respondent, Bruce Carter, who is to be confined in accordance with this contempt
order from 11-22-13 at 6 pm until Respondent is otherwise legally discharged on
11/24/13 at 6 pm.”
3
The trial court crossed out each of the entries on the order under the statement
“THE COURT FINDS THAT,” except the statement that the court has jurisdiction
over the parties and the subject matter of the suit.
3
On November 25, 2013, the trial court signed an “Order Holding
Respondent in Contempt, Granting Judgment, and for Commitment to County
Jail.” According to the order, it was based on hearings held on “October 28, 2013,
October 31, 2013, November 7, 2013, and November 20, 2013.” In this order, the
trial court identified the previous court orders and provisions that Carter violated,
set forth specific information regarding how and when Carter violated each order
and provision, and adjudged Carter “in contempt for each separate violation
enumerated above.” The trial court sentenced Carter to 180 days in jail and
ordered him “committed to the county jail of Harris County, Texas, for a period of
180 days for each separate violation.” The trial court further ordered that Carter be
confined in the county jail until he pays child support arrearage in the amount of
$3,665.19 “and bring[s] all child support current as of day of release.” Finally, the
trial court placed Carter on community supervision for 10 years after his release
from confinement and granted judgment for child support arrearages of $1,597.81
and medical support reimbursement of $2,067.38 to Reed.
On November 27, 2013, Carter filed his petition for writ of habeas corpus.
Analysis
An original habeas corpus proceeding is a collateral attack on a contempt
judgment. See Ex parte Rohleder, 424 S.W.2d 891, 892 (Tex. 1967); In re
Markowitz, 25 S.W.3d 1, 2 (Tex. App.—Houston [14th Dist.] 1998, orig.
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proceeding). The purpose of a writ of habeas corpus is not to determine the guilt
of the contemnor, but only to determine whether he was provided due process of
law or whether the order of contempt is void. In re Markowitz, 25 S.W.3d at 2
(citing Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979)). A court will issue a
writ of habeas corpus if the contempt order is void. Ex parte Gordon, 584 S.W.2d
at 688; In re Markowitz, 25 S.W.3d at 2–3. “An order is void if it is beyond the
power of the court to enter it, or if it deprives the relator of liberty without due
process of law.” In re Markowitz, 25 S.W.3d at 3.
Before imprisoning a person for constructive contempt, due process requires
a court to sign both a written judgment of contempt and a written commitment
order. See Ex parte Jordan, 865 S.W.2d 459, 459 (Tex. 1993); Ex parte
Strickland, 723 S.W.2d 668, 669 (Tex. 1987); Ex parte Barnett, 600 S.W.2d 252,
256 (Tex. 1980); In re Broughton, No. 09-09-00550-CV, 2009 WL 5276756, at *1
(Tex. App.—Beaumont Jan. 14, 2010, orig. proceeding). The two orders may be
issued separately or combined in the same document. See Ex parte Barnett, 600
S.W.2d at 256; In re Markowitz, 25 S.W.3d at 3. Although the trial court may
cause a contemnor to be detained “for a short and reasonable time while the
judgment of contempt and the order of commitment are being prepared,” a three-
day delay between the commitment of the contemnor and the signing of either the
judgment of contempt or the order of commitment violates the contemnor’s right to
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due process. Ex parte Amaya, 748 S.W.2d 224, 225 (Tex. 1988); see Ex parte
Jordan, 865 S.W.2d at 459.
Here, the trial court’s November 22, 2013 “Initial Order Holding
Respondent in Contempt and for Commitment” directed the sheriff to take Carter
into custody and commit him to the county jail. This constitutes a commitment
order. See Ex parte Hernandez, 827 S.W.2d 858, 858–59 (Tex. 1992). The order
does not, however, include a written judgment of contempt, because it fails to
(1) “clearly state in what respect the court’s order has been violated,” and (2) either
(a) identify—as required for a criminal contempt judgment—“the provisions of the
order for which enforcement was requested and the date of each occasion when the
respondent’s failure to comply with the order was found to constitute criminal
contempt” or (b) state—as required for a civil contempt judgment—“the specific
conditions on which the respondent may be released from confinement.” TEX.
FAM. CODE ANN. § 157.166 (West 2014); Ex parte Barnett, 600 S.W.2d at 256; see
Ex parte Littleton, 97 S.W.3d 840, 842 (Tex. App.—Texarkana 2003, orig.
proceeding); In re Markowitz, 25 S.W.3d at 3; Ex parte Alford, 827 S.W.2d 72, 74
(Tex. App.—Houston [1st Dist.] 1992, orig. proceeding). Accordingly, the
November 22, 2013 order violated Carter’s right to due process unless the trial
court signed an order of contempt or a written judgment of contempt within a
“short and reasonable time” after the issuance of the commitment order. See Ex
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parte Jordan, 865 S.W.2d at 459; Ex parte Amaya, 748 S.W.2d at 225; In re
Hancock, No. 2-06-040-CV, 2006 WL 533400, at *1 & n.5 (Tex. App.—Fort
Worth Mar. 6, 2006, orig. proceeding); Ex parte Littleton, 97 S.W.3d at 842 n.1.
On November 25, 2013, the trial court, without holding a new hearing,
signed an “Order Holding Respondent in Contempt, Granting Judgment, and for
Commitment to County Jail.”
To the extent the November 25, 2013 order was the written judgment of
contempt issued in conjunction with the November 22, 2013 commitment order,
the three-day delay between the issuance of the two orders was not a “short and
reasonable time” and therefore violated Carter’s right to due process. See Ex parte
Jordan, 865 S.W.2d at 459; Ex parte Amaya, 748 S.W.2d at 225; Ex parte Barnett,
600 S.W.2d at 256, 257; In re Broughton, 2009 WL 5276756, at *2; In re
Richardson, 218 S.W.3d 902, 903 (Tex. App.—Texarkana 2007, orig. proceeding);
Ex parte Morrow, No. 06-02-00082-CV, 2002 WL 1301327, at *2–3 (Tex. App.—
Texarkana June 13, 2002, orig. proceeding) (not designated for publication).
Further, a subsequent or modified contempt judgment issued as a result of
the original hearing, but after a “short and reasonable time” has elapsed, is a
violation of due process. See Ex parte Anderson, 900 S.W.2d 333, 334–35 (Tex.
1995); Ex parte Delcourt, 888 S.W.2d 811, 812 (Tex. 1994). Therefore, to the
extent the November 25, 2013 order constitutes a subsequent or corrected
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contempt judgment, it violated Carter’s right to due process. See Ex parte
Anderson, 900 S.W.2d at 334–35; Ex parte Delcourt, 888 S.W.2d at 812.
“Relator was absolutely entitled to a written commitment order and a written
contempt order.” In re Markowitz, 25 S.W.3d at 4; see Ex parte Littleton, 97
S.W.3d at 842. Because the trial court did not sign a written judgment or order of
contempt until three days after it signed the commitment order, we hold that
Carter’s due process rights were violated and that the judgment of contempt and
commitment order are void. See Ex parte Jordan, 865 S.W.2d at 459; In re Linan,
419 S.W.3d 694, 697–98 (Tex. App.—Houston [1st Dist.] 2013, orig. proceeding);
In re Markowitz, 25 S.W.3d at 4; Ex parte Morgan, 886 S.W.2d 829, 832 (Tex.
App.—Amarillo 1994, orig. proceeding).
Conclusion
We hold that the three-day delay in signing the written contempt order
violated Carter’s due process rights. In light of this holding, we need not address
Carter’s remaining arguments.
We grant Carter’s petition for writ of habeas corpus and order him
discharged from custody under both the November 22, 2013 “Initial Order Holding
Respondent in Contempt and for Commitment” and the November 25, 2013
“Order Holding Respondent in Contempt, Granting Judgment, and for
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Commitment to County Jail.” We also order that Carter be released from the bond
posted to secure his conditional release in this Cause No. 01-13-01021-CV.
We dismiss all pending motions as moot.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
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