in Re Tammy Fountain ( 2013 )

COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Cause No.01-12-00704-CV; In re Tammy Fountain
Original Proceeding on Petition for Writ of Habeas Corpus
Pursuant to a request by real party in interest Kathy Katcher, relator Tammy
Fountain was found in contempt by the trial court. Relator was ordered to serve 60
days in jail. Relator challenged the validity of that order by filing this original
habeas corpus proceeding. This court ordered relator discharged upon filing of a
bond, pending the outcome of this original proceeding.
A majority of this panel denied habeas corpus relief. The contempt order is
still in place. However, because the parties informed this court that the real party in
interest no longer seeks enforcement of the trial court’s orders finding relator in
contempt and committing her to a 60-day jail sentence (originally entered at her
request), this court has refrained from the ultimate order implied by our denial of
habeas corpus relief (or from an agreed dismissal of the habeas corpus proceeding):
remanding relator to the custody of the sheriff pursuant to the trial court’s
commitment order that is still in place, and consequently ordering release of the
bond.
On November 21, 2013, relator filed a motion for en banc reconsideration.
As described by relator: “The primary issue is whether this Court should issue an
order that fully effects th[e] parties’ Rule 6.6 agreement by releasing the bond.”
The bond is the condition upon which relator has delayed serving the jail sentence
imposed for being found in contempt. Yet, despite our court’s disposition of the
merits of the habeas corpus petition, finding no legal justification to invalidate the
contempt finding or the commitment order, relator asks us to release the bond
without also returning her to the custody of the sheriff, based solely on the
acquiescence of the real party in interest. While this is a compelling reason why the
trial court should consider vacating the challenged orders, it is no basis for this court
to substitute its judgment for the trial court’s.
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Nearly a year has passed in which the parties could have asked the trial court
to vacate the orders at issue, and despite our requests, no evidence has been
presented to this court that any such request has ever been made. Consequently
there is no record whatsoever in this court of any activity in the trial court relevant to
the issues now raised in relator’s motion. Accordingly, to facilitate the court’s
consideration of the motion for en banc reconsideration, relator is ordered to
supplement its motion with the following:
 A certified or sworn copy of every document that is material to the
implementation of paragraph 14 of the parties’ December 12, 2012
Agreement (i.e., “The current enforcement shall be dismissed with
prejudice.”) that was filed in the underlying proceeding;
 A certified or sworn copy of every document that is material to the
implementation of paragraph 7 of the parties’ September 27, 2013 Rule
6.6 Agreement (i.e., “Katcher agrees not to seek enforcement of the
trial court’s contempt order of May 24, 2012, or the revocation order of
July 31, 2012.”) that was filed in the underlying proceeding;
 A certified or sworn copy of every document relating to any request to
the trial court that it vacate or otherwise suspend its May 24, 2012
contempt order or July 31, 2012 revocation order in light of the parties’
aforementioned agreements and the pending original habeas corpus
proceeding in this court that was filed in the underlying proceeding;
and
 Any transcript of any proceeding in the trial court relating to any of the
foregoing subjects.
Relator is ordered to file the supplemental materials no later than
January 6, 2014, including any responsive documents which may be filed after the
entry of this order. After the time that the supplemental materials are filed, relator
is further ordered to continuously supplement its motion with any future filings in
the trial court within the scope described above, to be filed in this court within three
business days of such documents being filed in the trial court. Relator also may
supplement her motion for en banc reconsideration to include reference to any
materials filed in this court as a result of this order. Any such supplemental briefing
must be filed no later than January 6, 2014.
2
Real party in interest Kathy Katcher is ordered to file a response to the motion
for en banc reconsideration. The response is due no later than February 3, 2014.
Katcher’s response must include a full description of what steps, if any, have been
taken in the trial court to effectuate the Rule 6.6 agreement the parties filed in this
court. In particular, Katcher must inform this court whether she has requested that
the trial court withdraw the contempt and commitment orders in light of her
agreement not to seek enforcement of the orders and acquiescence to the relief
sought by relator.
The clerk of this court is ordered to immediately deliver to the trial court:
 This court’s majority opinion denying habeas corpus relief, along with
the dissenting opinion, dated December 28, 2012;
 Relator’s motions for rehearing dated January 2 and 4, 2013;
 Real party in interest’s response to the motions for rehearing dated
January 15, 2013;
 This court’s abatement order dated January 29, 2013;
 Real party in interest’s status report dated July 1, 2013;
 This court’s July 2, 2013 order;
 Real party in interest’s status report dated August 9, 2013;
 Relator’s status report dated August 9, 2013;
 This court’s September 24, 2013 order;
 Real party in interest’s motion to enforce Parties’ Rule 6.6 Agreement
dated September 27, 2013;
 This court’s October 15, 2013 order;
 Relator’s letter to the clerk of the court dated October 17, 2013;
 This court’s order dated November 7, 2013, along with the
memorandum dissent from such order;
 Relator’s motion for en banc reconsideration dated November 21,
2013; and
 A copy of this order.
Finally, in the interests of judicial efficiency, the parties are ordered to
immediately inform this court of any action taken by the trial court relevant to
the remaining controversy in this court, including but not limited to any action
taken to vacate or otherwise suspend the effect of the commitment order, or any
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indication the trial court may give that it is disinclined to do so despite the real party
in interest’s abandonment of her enforcement efforts and acquiescence to relator’s
requests for relief from the order.
It is so ORDERED.
Judge’s signature: /s/ Michael Massengale
Acting for the court
Panel consists of Justices Keyes, Massengale, and Brown
Justice Keyes, dissenting, except with respect to the request for a response to the
motion for en banc reconsideration.
Date: December 10, 2013
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Opinion issued December 28, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00704-CV
———————————
IN RE TAMMY FOUNTAIN, Relator
Original Proceeding on Petition for Writ of Habeas Corpus
OPINION
In this habeas corpus proceeding, relator Tammy Fountain challenges the
legality of her confinement for violating an agreed order in a suit affecting the
parent-child relationship.* Fountain stipulated that she violated the order, which
resulted in findings of contempt and an order committing her to a 60-day jail
*
The underlying case is In the interest of S.F., a child, No. 2010-31997 in the
309th District Court of Harris County, Texas, the Honorable Sheri Dean,
presiding.
sentence. The commitment order was suspended, conditioned upon Fountain’s
continuing compliance with court orders. Acting on a motion to revoke the
suspension of commitment, the trial court subsequently found that Fountain had
committed further violations of the court’s orders, and it ordered that she be taken
into custody in accordance with the prior contempt order.
Finding no abuse of discretion in the trial court’s revocation of its prior
suspension of commitment, we deny the petition.
Background
This is the second time Fountain has sought relief in this court from the
proceedings in a suit affecting her parental relationship with her adopted son. See
In re Fountain, No. 01-11-00198-CV, 2011 WL 1755550 (Tex. App.—Houston
[1st Dist.] May 2, 2011, orig. proceeding) (opinion on rehearing). After we denied
mandamus relief from the denial of a motion to dismiss the underlying suit,
Fountain agreed to the entry of an order which appointed her as sole managing
conservator and Kathy Katcher as a nonparent possessory conservator. Among
other things, the October 18, 2011 agreed order provided that within 30 days each
party was to “permit the other conservator to obtain health-care information
regarding the child” and authorize the disclosure of “protected health information
to the other conservator.” This order also required each party to notify the “other
party, the court, and the state case registry” of any change in the party’s contact
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information, including current residence, phone number, and employer contact
information. Fountain and Katcher were also required to provide notification of
any intended change in this residency and contact information “on or before the
60th day before the intended change.” If a party did not know of the change in
time to provide the 60-day notice, then notice was required “on or before the fifth
day after the date that the party knows of the change.”
Several months after the entry of the October 18 agreed order, Katcher
moved to enforce that order for Fountain’s failure to comply. The trial court held
two hearings on May 3 and May 11, 2012. The parties stipulated, and the court
found, that Fountain violated the October 18 order by failing to execute releases
and thereby failing to permit Katcher to obtain health-care information regarding
the child, as required by the agreed order. In an order dated May 24, 2012,
Fountain was found to be in contempt and ordered to be committed to the Harris
County Jail for a period of 60 days as punishment. In the same order, the 60-day
jail sentence was suspended on the condition that she comply with the October 18
agreed order and with additional provisions contained in a new modification order
which, like the contempt order, was also dated May 24, 2012.
The May 24 modification order required, among other provisions, that
Fountain notify the child’s schools in writing that Katcher could have lunch with
the child at school, attend school activities, and “receive all school notices,
3
including all email notices normally sent to parents.” Fountain was required to
provide this notice to the child’s current school by May 15, a date which was four
days after the May 11 hearing but nine days before the May 24 order giving rise to
this new obligation was actually entered. Additionally, the modification order
obligated both parties to exchange a variety of information through an internet
application called “Our Family Wizard.” The parties were also required to
promptly update this data, within 36 hours of any change to any of the initially
exchanged data or to other specified scheduling matters, including but not limited
to the inability to exercise a period of possession or knowledge that the child
would not be attending a previously scheduled extracurricular activity.
Approximately one month later, Katcher moved to revoke the suspension of
Fountain’s commitment. Katcher alleged multiple violations of the prior orders,
three of which are relevant in this proceeding. First, she alleged that Fountain had
failed to give her sufficient notice of changes to the child’s residence when
Fountain notified her of a change of residence to Galveston County effective three
days later. Second, she alleged that Fountain had not timely notified the child’s
school that Katcher could visit the child for lunch, pick him up from class, and
attend school activities. Third, she argued that Fountain had violated the provision
of the modification order requiring communication within 36 hours through Our
Family Wizard about changes to the scheduled possessory period with the child.
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After a hearing, the trial court revoked the suspension of Fountain’s
commitment in an order dated July 31, 2012. The court found that Fountain had
violated the prior orders three times. First, she had failed to “provide the required
notice” that she was moving on June 22 when she mailed notice of the move to
Katcher on “June 18, 2012.” Second, Fountain had failed to inform the school by
May 15 that Katcher had permission to access the child there. Third, Fountain had
failed to post information to Our Family Wizard as required. The district court
ordered that Fountain be committed in accordance with “the orders attached hereto
as Exhibits A, B, and C.” A copy of the May 24 commitment order was attached
as Exhibit A. On its second page, that order provided that “punishment for the
violation set out above is assessed at confinement in the Harris County Jail for a
period of sixty (60) days.” Fountain was taken into the custody of the jail on the
same day.
Fountain filed an original petition for writ of habeas corpus seeking relief in
this court, raising five issues. We ordered her released on bond pending our
determination of her petition. See TEX. R. APP. P. 52.10.
Analysis
A final order for possession of or access to a child may be enforced by
means of a motion for enforcement as provided by chapter 157 of the Family Code.
TEX. FAM. CODE § 157.001(a) (West 2008). Such an order may be enforced by
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contempt, as also provided by chapter 157. Id. § 157.001(b). Chapter 157
specifies particular information that a motion for enforcement must provide “in
ordinary and concise language,” including identification of “the provision of the
order allegedly violated and sought to be enforced,” “the manner of the
respondent’s alleged noncompliance,” and “the relief requested by the movant.”
Id. § 157.002(a). A motion to enforce the terms and conditions of access to a child
must also include “the date, place, and, if applicable, the time of each occasion of
the respondent’s failure to comply with the order.” Id. § 157.002(c). Chapter 157
sets forth detailed procedures for hearings on enforcement motions.1
One potential outcome of a hearing on an enforcement motion requesting
contempt findings and sanctions is that the trial court “may place the respondent on
community supervision and suspend commitment if the court finds that the
respondent is in contempt of court for failure or refusal to obey an order rendered
as provided in this title.” Id. § 157.165. Community supervision under
1
See TEX. FAM. CODE ANN. §§ 157.061–.168. For example, upon the filing of
a motion for enforcement requesting contempt, the trial court shall set the
date, time, and place of the hearing and order the respondent to personally
appear and respond to the motion. Id. § 157.061(a). The respondent is
entitled to receive personal service of a copy of the motion and notice not
later than the 10th day before the date of the hearing. Id. § 157.062(c). If a
respondent who has been personally served with notice nevertheless fails to
appear at a hearing, the court may not hold the respondent in contempt but
may, on proper proof, grant a default judgment for the relief sought and
issue a capias for the arrest of the respondent. Id. § 157.066.
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chapter 157 is subject to different procedures from those applicable to enforcement
motions. The procedures governing community supervision are detailed in a
distinct subchapter. Under that subchapter, a “party affected by the order may file
a verified motion alleging specifically that certain conduct of the respondent
constitutes a violation of the terms and conditions of community supervision.” Id.
§ 157.214. Unlike the procedures generally applicable to a motion to enforce, a
prima facie showing of a violation of a condition of community supervision can
result in the immediate arrest of the respondent, id. § 157.215, followed by a
hearing on the motion to revoke community supervision within three days. 2 “After
the hearing, the court may continue, modify, or revoke the community
supervision.” Id. § 157.216(c).
In her petition, Fountain alleges numerous deficiencies and errors in the
motion and order that revoked the suspension of her commitment to jail. A
commitment order is subject to collateral attack in a habeas corpus proceeding. In
re Henry, 154 S.W.3d 594, 596 (Tex. 2005); see TEX. GOV’T CODE ANN.
2
Compare id. § 157.216(a) (“The court shall hold a hearing [on motion to
revoke community supervision] without a jury not later than the third
working day after the date the respondent is arrested under
Section 157.215.”) with id. § 157.062(c) (“Notice of hearing on a motion for
enforcement of an existing order providing for . . . possession of or access to
a child shall be given to the respondent by personal service of a copy of the
motion and notice not later than the 10th day before the date of the
hearing.”).
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§ 22.221(d) (West 2004) (granting the appellate courts the power to issue writs of
habeas corpus). The purpose of the habeas corpus proceeding is not to determine
the guilt or innocence of the relator, but only to determine whether she has been
unlawfully restrained. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979). We
initially presume that the contempt order is valid. In re Turner, 177 S.W.3d 284,
288 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding). But the writ will
issue if the trial court’s contempt order is beyond the court’s power or the court did
not afford the relator due process of law. Id. (citing Henry, 154 S.W.3d at 596).
The relator bears the burden of showing that she is entitled to relief. Id. In
reviewing the record, we do not weigh the proof; rather, we determine only if the
judgment is void because, for example, the relator has been confined without a
proper hearing or with no evidence of contempt to support her confinement. Ex
parte Chambers, 898 S.W.2d 257, 260 (Tex. 1995); see TEX. GOV’T CODE ANN.
§ 22.221(d) (providing that courts of appeals exercise jurisdiction over habeas
corpus petitions “[c]oncurrently with the supreme court”).
I. Punishment
In her first issue, Fountain argues that the July 31 revocation order was void
because it did not clearly state the punishment imposed. She notes that the order,
including its three attachments, is 37 pages long, but that the text of the order itself
does not specify the length of the jail sentence or identify which attachment
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contains the sentence. Fountain does acknowledge, however, that the May 24
contempt order was attached to the July 31 revocation order and specified a 60-day
jail sentence.
Fountain relies upon Family Code section 157.166(a)(4) for the proposition
that “an enforcement order must include ‘the relief granted by the court.’” This
provision is contained within subchapter D of chapter 157 relating generally to
enforcement hearings and orders in suits affecting the parent-child relationship.
See TEX. FAM. CODE § 157.001(a) (“A motion for enforcement as provided in this
chapter may be filed to enforce a final order for conservatorship, child support,
possession of or access to a child, or other provisions of a final order.”).
Section 157.166 does specify certain contents which must be included in an
enforcement order, including “the relief granted by the court.” See id.
§ 157.166(a)(4). But the provision is not part of subchapter E, which relates
specifically to community supervision, including proceedings to revoke
community supervision. See id. §§ 157.211–.217.
Although Fountain’s legal challenges are directed at the July 31 revocation
order, the actual enforcement order at issue in this proceeding is the May 24
contempt order. Fountain does not complain that this order failed to identify “the
relief granted by the court”—indeed, she concedes that it did. Her complaint,
instead, is that the relief was not expressly stated in the July 31 revocation order,
9
and that referencing the May 24 contempt order and attaching it to the July 31
revocation order was the equivalent of not including it at all. As characterized by
Fountain, “[h]iding this requirement [of a statement of ‘the relief granted by the
court’] is the equivalent of not including it.”
We disagree with the suggestion that the statement of the relief granted by
the court was “hidden” in any relevant sense. Fountain relies on In re Levingston,
996 S.W.2d 936, 938 (Tex. App.—Houston [14th Dist.] 1999, no pet.), and Ex
parte Waldrep, 783 S.W.2d 332, 333 (Tex. App.—Houston [14th Dist.] 1990, orig.
proceeding), for the proposition that “the purpose of the commitment order is to
notify the offender of how she has violated its provisions, to notify the sheriff so
that he can carry out enforcement, and to provide sufficient information for an
adequate review.” We do not question this principle. See, e.g., In re Luebe,
No. 01-09-00908-CV, 2010 WL 1546961 (Tex. App.—Houston [1st Dist.] Apr. 2,
2010, no pet.); Turner, 177 S.W.3d at 289. However, Fountain provides no
argument about how she lacked adequate notice of the sentence, what information
is missing for law enforcement purposes, or how our review has been impaired.
To the contrary, the record is clear that Fountain was sentenced to a 60-day jail
sentence in the May 24 contempt order, that the sentence was suspended on the
condition of her future compliance with the court’s orders, and that on July 31 the
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trial court found that such orders had been violated and accordingly revoked the
suspension of the previously entered 60-day sentence.
The May 24 contempt order provided on its second page that “punishment
for the violation set out above is assessed at confinement in the Harris County Jail
for a period of sixty (60) days.” This clearly stated the punishment imposed,
contrary to Fountain’s assertion that it was hidden. “There is no particular form
required of either the order of contempt or the commitment order, provided that
their essential elements appear in a written document.” Ex parte Snow, 677
S.W.2d 147, 149 (Tex. App.—Houston [1st Dist.] 1984, no writ). We overrule
Fountain’s first issue.
II. Grounds for revocation of suspension
In her four remaining issues, Fountain argues that Katcher’s motion for
revocation and the trial court’s July 31 revocation order fail to satisfy the
procedural standards of Family Code chapter 157 in several respects. In her
second issue, she argues that the judgment of contempt cannot be enforced based
on violations of the May 24 modification order because the conditions of
suspension in the May 24 contempt order mistakenly reference the “Modification
Order of May 25, 2012.” In her third issue, she argues that although Katcher’s
motion to revoke alleged that she violated the October 18 agreed order by mailing
a notice on June 19, 2012, the trial court found that the violation was committed on
11
June 18, 2012, and therefore is “not supported by the pleadings.” The fourth issue
relates to the requirement in the May 24 contempt order that certain information be
provided by May 15—before that order was actually entered. And the fifth issue
complains of the specificity of the motion to revoke and the revocation order with
respect to the allegation and finding that Fountain interfered with Katcher’s
participation in school lunches by failing to timely share information about the
child’s schedule on Our Family Wizard in violation of the court’s orders.
One misconception underlies each of these issues in common. Fountain
wrongly assumes that Katcher’s motion to revoke and the trial court’s revocation
order must satisfy all of the procedural safeguards for an enforcement motion
under subchapter D of chapter 157, as if a separate allegation, finding, and
sentence for contempt of court were at issue. In other cases, these safeguards in
fact have been applied under circumstances when a party has been found in
contempt and sentenced, the commitment has been suspended subject to
compliance with specified conditions, and then in further proceedings to revoke the
suspension of commitment, a trial court made additional findings of contempt and
imposed a different punishment. In such circumstances, with new allegations of
contempt and enhanced sanctions, the motion to revoke does not merely invoke a
previously rendered judgment of contempt, but the new motion instead functions
as a separate enforcement motion for purposes of chapter 157. See, e.g., In re
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Broussard, 112 S.W.3d 827, 831 (Tex. App.—Houston [14th Dist.] 2003, no pet.);
Ex parte Bagwell, 754 S.W.2d 490, 493 (Tex. App.—Houston [14th Dist.] 1988,
no writ); Ex parte Durham, 708 S.W.2d 536, 537 (Tex. App.—Dallas 1986, no
writ).
In this case, however, although Katcher alleged and the trial court found that
Fountain had violated the conditions of the suspension of her commitment, Katcher
did not request and the trial court did not enter additional findings of contempt.
Instead, as anticipated by chapter 157 and particularly subchapter E pertaining to
community supervision, the trial court merely enforced the provisions of its own
suspended commitment order, and it revoked the suspension, resulting in the
imposition of the original sentence imposed for the original, admitted episodes of
contempt.
Fountain provides no argument or authority for us to apply subchapter D of
chapter 157 and its detailed procedures applicable to an original enforcement
hearing to the separate circumstance of a proceeding merely to determine whether
to revoke the suspension of a valid prior order of commitment for contempt, and
we decline to do so. That approach would render ineffective the common practice
of suspending contempt judgments contingent upon future compliance with court
order. There is no reason to deprive trial courts of such flexibility in the
enforcement of their orders. A heightened procedural standard is justified for
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contempt proceedings in the first instance, especially when incarceration of the
respondent is a potential result. But once there has been a judgment of contempt,
there is no requirement that the same heightened measure of process be provided in
order to adjudicate an allegation that the conditions of a suspended judgment have
been violated. Instead, like the analogous circumstance of an appeal from the
revocation of probation in a criminal proceeding, we review the trial court’s ruling
for an abuse of discretion. See, e.g., Bryant v. State, No. PD-0049-12, 2012 WL
5232147 (Tex. Crim. App. Oct. 24, 2012); see also In re Butler, 45 S.W.3d 268,
272 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (“Proceedings in contempt
cases should conform as nearly as practicable to those in criminal cases.”). In the
case of an order revoking community supervision, proof of any one violation of the
conditions of suspension is sufficient to support the revocation order. See In re
Bourg, No. 01-07-00623-CV, 2007 WL 2446844 (Tex. App.—Houston [1st Dist.]
Aug. 27, 2007, no pet.) (holding proof of any one violation of an order revoking
suspension of commitment for contempt is sufficient to support revocation); In re
B.C.C., 187 S.W.3d 721, 724 (Tex. App.—Tyler 2006, no pet.).
Accordingly, we must deny relief if the revocation was justified on any
basis, and in this case it was. After Fountain received notice of Katcher’s motion
to revoke and a hearing was held, the trial court found three violations of
Fountain’s conditions of suspension of commitment. One of the violations related
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to Fountain’s failure to comply with the trial court’s order with respect to timely
informing Katcher of a planned change of residential address. The October 18
agreed order provided, in relevant part:
Required Notices
EACH PERSON WHO IS A PARTY TO THIS ORDER IS
ORDERED TO NOTIFY EACH OTHER PARTY, THE COURT,
AND THE STATE CASE REGISTRY OF ANY CHANGE IN THE
PARTY’S CURRENT RESIDENCE ADDRESS . . . . THE PARTY
IS ORDERED TO GIVE NOTICE OF AN INTENDED CHANGE IN
ANY OF THE REQUIRED INFORMATION TO EACH OTHER
PARTY, THE COURT, AND THE STATE CASE REGISTRY ON
OR BEFORE THE 60TH DAY BEFORE THE INTENDED
CHANGE. IF THE PARTY DOES NOT KNOW OR COULD NOT
HAVE KNOWN OF THE CHANGE IN SUFFICIENT TIME TO
PROVIDE 60-DAY NOTICE, THE PARTY IS ORDERED TO
GIVE NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH
DAY AFTER THE DATE THAT PARTY KNOWS OF THE
CHANGE.
THE DUTY TO FURNISH THIS INFORMATION TO EACH
OTHER PARTY, THE COURT, AND THE STATE CASE
REGISTRY CONTINUES AS LONG AS ANY PERSON, BY
VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO
PAY CHILD SUPPORT OR ENTITLED TO POSSESSION OF OR
ACCESS TO A CHILD.
FAILURE BY A PARTY TO OBEY THE ORDER OF THIS
COURT TO PROVIDE EACH OTHER PARTY, THE COURT,
AND THE STATE CASE REGISTRY WITH THE CHANGE IN
THE REQUIRED INFORMATION MAY RESULT IN FURTHER
LITIGATION TO ENFORCE THE ORDER, INCLUDING
CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE
PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX
MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION,
AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY’S
FEES AND COURT COSTS.
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Notice shall be given to the other party by delivering a copy of
the notice to the party by registered or certified mail, return receipt
requested. . . .
In the July 31 revocation order, the trial court specifically found that
Fountain had violated this provision by failing to provide Katcher the “required
notice” of her plan to move to Galveston County. This finding was supported by
circumstantial evidence presented at the evidentiary hearing on the motion to
revoke. On June 18, 2012, Fountain sent a letter to Katcher, informing her of a
change of residential address. Fountain would have violated the agreed order’s
“Required Notices” provision if she knew of “an intended change” of residential
address before June 13, or more than five days before she actually provided notice
of the move to Katcher.
Fountain testified that she knew a move was possible as of June 14, but she
did not know until June 16 that the move would actually occur. Other evidence at
the hearing cast serious doubts on that testimony. The child spent the weekend of
June 15–17 with Katcher. During that weekend, the child told Katcher that he had
a “condo in Galveston” with his own bathroom, that it had a pool where he had
been swimming, and that he been to his new school. Fountain admitted that the
child had learned all of this information prior to June 15. Additionally, on June 16
Fountain leased her Houston home to an acquaintance. Nevertheless, Fountain
insisted that she did not know about the intended move until June 16.
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The burden of proof to justify the revocation of a suspension of commitment
is a preponderance of the evidence, meaning that greater weight of the credible
evidence which would create a reasonable belief that the respondent violated a
condition of the suspension of commitment. Cf. Rickels v. State, 202 S.W.3d 759,
763–64 (Tex. Crim. App. 2006) (describing burden of proof to revoke probation).
We review the evidence in the light most favorable to the trial court’s judgment.
See Canseco v. State, 199 S.W.3d 437, 439 (Tex. App.—Houston [1st Dist.] 2006,
pet. ref’d). “The trial court is the exclusive judge of the credibility of the witnesses
and must determine whether the allegations in the motion to revoke are sufficiently
demonstrated.” Id.
As the exclusive judge of the credibility of the witnesses, the trial court
obviously did not believe Fountain’s testimony that she did not know of an
intended change of residential address prior to June 14. The circumstantial
evidence relating to the move, including the child’s knowledge of details about the
new residence and the arrangement of a tenant to lease Fountain’s Houston home,
supported a reasonable belief that Fountain violated the agreed order’s requirement
that she notify Katcher on or before the fifth day after she knew of the intended
change.
Fountain also contends that Katcher’s motion to revoke failed to provide her
sufficient notification of this alleged violation due to a variance in the date of her
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written notice as specified in the motion (June 19) and the date identified in the
revocation order (June 18). This defect does not invalidate the revocation order.
“It is well settled that allegations in a revocation motion need not be made with the
same particularity of an indictment although such allegations must be specific
enough to give the accused notice of alleged violation of law contrary to conditions
of probation.” Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977)
(quoted with approval in In re Zandi, 270 S.W.3d 76, 77 (Tex. 2008) (per curiam)).
The motion to revoke adequately notified Fountain of the essential allegations
against her, relating to the timing of her written notice of the move to Galveston.
Her letter was dated June 16 but was actually mailed on June 18. The motion to
revoke’s reference to the notice being mailed on June 19 did not deprive Fountain
of notice of the essential allegation about her violation of the requirement of
written notice.
Accordingly, we overrule Fountain’s third issue challenging the adequacy of
the motion to revoke to provide her notice of the allegation that she violated the
agreed order by providing untimely notice of an intended move. Because at least
one of the grounds for revocation was supported by the evidence, we need not
address Fountain’s remaining issues challenging the other two violations found by
the trial court.
18
Conclusion
We conclude that Fountain has not shown that she was illegally restrained
by the trial court’s order revoking suspension of commitment and committing her
to county jail. We therefore deny Fountain’s request for habeas corpus relief.
Michael Massengale
Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Justice Keyes, dissenting.
19
Opinion issued December 28, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00704-CV
———————————
IN RE TAMMY FOUNTAIN, Relator
Original Proceeding on Petition for Writ of Habeas Corpus
DISSENTING OPINION
I respectfully dissent. I deeply disagree with the majority’s characterization
of the issues in this case, its legal conclusions, and its disposition of this habeas
corpus proceeding.
The trial court found Tammy Fountain in contempt for violating a court
order in a suit affecting the parent-child relationship, sentenced her to jail, and, in
the same order, suspended her commitment.1 The court subsequently revoked its
earlier suspension order and committed Fountain to jail. In five issues, she
contends that the commitment order is void and violates her constitutional due
process rights. The majority first addresses the trial court’s order committing
Fountain to jail and reaches its conclusion that she be returned to jail. It fails to
identify or address any of the five issues raised by Fountain until page eight of its
opinion, swiftly disposes of the first issue, and then lumps her other four issues
together and disposes of those by holding that the statutory and constitutional
procedural safeguards that apply to contempt proceedings do not apply to orders
revoking the suspension of commitment.
I agree with Fountain that the commitment order is void under established
Texas law and that, therefore, her commitment to jail violates her constitutional
right to due process of law. In its contempt order committing Fountain to jail, the
trial court failed to specify the manner in which Fountain had committed two of the
three violations for which it found her in contempt. For the remaining violation,
the trial court found Fountain in contempt for acts that occurred before the court
signed the order giving rise to Fountain’s obligation. The commitment order is,
therefore, void. I would hold that the trial court abused its discretion in revoking
1
The underlying case is In the interest of S.F., a child, No. 2010-31997, in the
309th District Court of Harris County, Texas, the Honorable Sheri Y. Dean,
presiding.
2
its order suspending Fountain’s commitment. I would grant the petition for writ of
habeas corpus, and I would order Fountain discharged.
Background
On October 18, 2011, the trial court signed an order in which Tammy
Fountain and Katherine Katcher agreed to their various rights and duties as
conservators of a child. Among its numerous provisions, this order provided that,
within thirty days after the signing of the order, each party was to “permit the other
conservator to obtain health-care information regarding the child” and to authorize
the disclosure of “protected health information to the other conservator” pursuant
to federal health care law. The order also required each party to notify the “other
party, the court, and the state case registry of any change in the party’s current
residence,” phone number, employer contact information, and other similar
information. The party was required to provide notification of any intended
change in this residency and contact information “on or before the 60th day before
the intended change.” If the party did not know of the intended change in enough
time to provide the sixty-day notice, then the party was required to give notice “on
or before the fifth day after the date that the party knows of the change.”
Several months later, on May 24, 2012, the trial court entered an order of
contempt against Fountain because the court found that she had violated the earlier
October 18, 2011 order by failing to execute the required releases to allow Katcher
3
to obtain the child’s health-care information. Accordingly, the trial court ordered
Fountain committed to Harris County Jail for sixty days. But in the same order,
the court suspended Fountain’s commitment so long as she complied “with each
and every provision of the Agreed Order of October 18, 2011, and of the
Modification Order of May 25, 2012.” To accompany this order, the trial court
prepared a modification order, which imposed new duties and obligations on
Fountain. The hearing on these orders was held on May 11, 2012, but the orders
were not signed and filed until May 24, 2012, thirteen days later.
The May 24, 2012 modification order, among other provisions, required that
Fountain notify the child’s school, in writing with notice to the court, that Katcher
could have lunch with the child at school, pick the child up from school, attend
school activities, and receive all school notices. Fountain was required to notify
the child’s current school by May 15, 2012, four days after the hearing on the new
order, but nine days before the trial court signed the new order giving rise to this
obligation. Additionally, the May 24, 2012 modification order obligated both
parties to exchange contact information and schooling information and, within
thirty-six hours of a change, to post any changes to periods for possession of the
child through an Internet program called “Our Family Wizard.”
A month later, Katcher moved to revoke the suspension of Fountain’s
commitment. She accused Fountain of four violations of the prior orders. First,
4
she alleged that Fountain had failed to provide the required notice of changes to the
child’s residence when Fountain had notified her only on June 19, 2012, that
Fountain and the child would be moving to Galveston County three days later.
Second, she alleged that Fountain had not notified the child’s school by May 15,
2012, that Katcher could visit the child for lunch, pick him up from class, attend
school activities, and receive school notices. Third, Katcher alleged that Fountain
had violated the provision of the May 24, 2012 modification order requiring
communication within thirty-six hours through the Our Family Wizard website
about changes to the scheduled possessory period with the child. Fountain had
allegedly told Katcher that the child would not be available for Katcher’s
scheduled lunch visit on June 6, 2012, because the child would be absent from
school all week, but she then told Katcher on June 8, 2012, that the child had only
been absent on the day scheduled for Katcher’s visit. Fourth, Katcher accused
Fountain of not paying a $77 court cost.
On July 31, 2012, after a hearing, the trial court revoked the suspension of
Fountain’s commitment (“the commitment order”). Using substantially the same
wording as found in Katcher’s motion to revoke, the court found that Fountain had
violated its prior orders three times. First, she failed to “provide the required
notice” that she was moving on June 22, 2012, when she mailed notice of the move
to Katcher on June 18, 2012. Second, Fountain failed to inform the child’s current
5
school by May 15, 2012, that Katcher had permission to access the child there.
Third, Fountain failed to post information to Our Family Wizard as required when
she had told Katcher that the child was unavailable for lunch with Katcher on June
6, 2012. The district court ordered that Fountain be committed in accordance with
“the orders attached hereto as Exhibits A, B, and C.” A copy of the original May
24, 2012 contempt order hand-labeled with an “A” followed the revocation order.
On its second page, the attached contempt order provided that “punishment for the
violation set out above is assessed at confinement in the Harris County Jail for a
period of sixty (60) days.”
Fountain filed an original petition for writ of habeas corpus seeking relief in
this Court, raising five issues. We ordered her released on bond pending our
determination of her request for relief.
Contempt and Commitment Orders
“Criminal contempt is punishment for past disobedience to a court order that
constitutes an affront to the dignity and authority of the court.” In re Houston, 92
S.W.3d 870, 876 n.2 (Tex. App.—Houston [14th Dist.] 2002, orig. proceeding).
Civil contempt is remedial and coercive; release may be procured by compliance
with the provisions of the court’s order. Id. “Civil contempt proceedings are
quasi-criminal in nature, and the contemnor is entitled to procedural due process
throughout the proceedings.” Id. at 876. Among the due process rights accorded is
6
the right to reasonable notice of each allegedly contumacious act. Id. Due process
requires “full and complete notification” of the charges with a reasonable
opportunity to meet them by defense or explanation. Id. In addition, criminal
contempt requires proof beyond a reasonable doubt. Id.; see Ex parte Chambers,
898 S.W.2d 257, 259 (Tex. 1995). In order to support a judgment of contempt, the
underlying decree must set forth the terms of compliance in “clear, specific and
unambiguous terms” so that the person charged with obeying the order will know
exactly what duties and obligations are imposed on her. Chambers, 898 S.W.2d at
260; Houston, 92 S.W.3d at 877. The order of contempt may not be susceptible to
more than one interpretation. Houston, 92 S.W.3d at 877.
“Due process requires a court, before imprisoning a person for violating an
earlier order, to sign a written judgment or order of contempt and a written
commitment order.” Ex parte Shaklee, 939 S.W.2d 144, 145 (Tex. 1997) (per
curiam) (citing Ex parte Barnett, 600 S.W.2d 252, 256 (Tex. 1980)). The
contempt order must clearly state in what respect the court’s earlier order has been
violated. Id.; see also Ex parte Edgerly, 441 S.W.2d 514, 516 (Tex. 1969) (order
or other means of notification “must state when, how, and by what means the
defendant has been guilty of the alleged contempt”). Complementing this due
process requirement, the Texas Family Code mandates that motions for
enforcement and orders confining someone for violating a court’s enforcement
7
order must state “the manner of the respondent’s noncompliance.” TEX. FAM.
CODE ANN. §§ 157.002(a)(2), 157.166(a)(3) (Vernon 2008). Further, an order
imposing incarceration for criminal contempt must contain findings identifying
“the date of each occasion when the respondent’s failure to comply with the order
was found to constitute criminal contempt.”2 Id. § 157.166(b).
Standard of Review of Commitment Order
A commitment order is subject to collateral attack in a habeas corpus
proceeding. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (per curiam); see TEX.
2
Family Code section 157.166 provides:
(a) An enforcement order must include:
(1) in ordinary and concise language the provisions
of the order for which enforcement was
requested;
(2) the acts or omissions that are the subject of the
order;
(3) the manner of the respondent’s noncompliance;
and
(4) the relief granted by the court.
(b) If the order imposes incarceration or a fine for criminal
contempt, an enforcement order must contain findings
identifying, setting out, or incorporating by reference 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.
(c) If the enforcement order imposes incarceration for civil
contempt, the order must state the specific conditions on
which the respondent may be released from confinement.
TEX. FAM. CODE ANN. § 157.166 (Vernon 2008).
8
GOV’T CODE ANN. § 22.221(d) (granting appellate courts power to issue writs of
habeas corpus). The purpose of the habeas corpus proceeding is not to determine
the guilt or innocence of the relator; rather, the purpose is only to determine
whether she has been unlawfully restrained. Ex parte Gordon, 584 S.W.2d 686,
688 (Tex. 1979). We presume that the contempt order is valid. In re Turner, 177
S.W.3d 284, 288 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding). But we
will issue the writ if the trial court’s contempt order is void because it is beyond
the court’s power or the court did not afford the relator due process of law. Id.
(citing Henry, 154 S.W.3d at 596).
The relator bears the burden of showing that she is entitled to relief. Id. In
reviewing the record, we do not weigh the proof; rather, we determine only if the
contempt order is void because, for example, the relator has been confined without
a proper hearing or with no evidence of contempt to support her confinement.
Chambers, 898 S.W.2d at 259–60.
Validity of Commitment Order
Here, the trial court’s order committed Fountain to jail as punishment for
past violations of the court’s May 24, 2012 contempt order. Therefore, the
commitment order is an order of criminal contempt. See Houston, 92 S.W.3d at
876 n.2.
9
In her petition, Fountain points out numerous deficiencies and errors in the
revocation motion and order that committed her to jail for contempt. She argues
that two of the contempt violations are improper because the commitment order
does not state the manner in which she failed to comply with the prior court orders,
as required by due process and the Texas Family Code. See TEX. FAM. CODE ANN.
§ 157.166(a)(3); Shaklee, 939 S.W.2d at 145 (“The contempt order must clearly
state in what respect the court’s earlier order has been violated.”) (citation
omitted). Fountain argues that the remaining contempt violation is improper
because the trial court found that she violated a provision in the court’s order that
required compliance before the court even signed the order imposing that particular
obligation. See Chambers, 898 S.W.2d at 262 (contemnor cannot be held in
contempt of court for actions that predate when court’s order is reduced to
writing).
Because I find these arguments dispositive in determining that the
commitment order is void, I would not reach Fountain’s other issues.
I. Deficiencies in the Revocation Motion and Order
While the commitment order states that Fountain failed to comply with
several provisions of prior court orders, the order does not state the manner of her
noncompliance. The order states:
Violation 1. On June 18, 2012, respondent mailed to movant a notice
that as of June 22, 2012, her residence and that of the child was
10
changed to an address in Galveston County. This does not provide the
required notice.
This violation was accompanied by a copy of the text of the October 18, 2011
agreed order that required the parties to inform each other of changes to the child’s
current address within sixty days or within five days of learning of a change of
address if the party did not know of the change in enough time to meet the sixty-
day requirement. For the other violation, the order states:
Violation 4. Respondent has interfered with movant’s lunches with
the child at school by violation of the order concerning posting
information on Our Family Wizard. Movant had scheduled lunch
with the child at school for June 6, 2012; respondent notified movant
that the child would not be at school all that week. Respondent
changed this schedule, and notified movant — at lunch time on June
8, 2012 — that in fact he had been at school all that week, except for
the Wednesday movant had scheduled. Respondent failed to post this
change timely, presumably to prevent movant’s being able to
reschedule and have lunch with the child a different day of the week.
This language is quoted verbatim from Katcher’s motion to revoke. Preceding the
violation, the court’s May 24, 2012 modification order is quoted, which required
that each party promptly post:
b. knowledge that a child will not be attending a previously scheduled
extracurricular activity — immediately, or as soon as practicable
under the circumstances; but no less than eight hours; . . .
f. any other changes — within thirty-six hours of the change.
These findings do not state the manner of Fountain’s noncompliance. In the
first violation, stating that Fountain had failed to report that she was moving with
11
the child to Galveston County, the findings do not mention how Fountain failed to
notify Katcher. Did the court find that Fountain had known when she was moving
earlier, and so it found that she had failed to notify Katcher within the five-day
time limit imposed by the October 18, 2011 order? Or did the court find that
Fountain had known she was planning to move much earlier, and thus she failed to
notify Katcher sixty days before the move as the October 18, 2011 order required?
In the other violation, noting that Fountain had failed to update the Our
Family Wizard program on the week Katcher attempted to visit the child at lunch,
the findings again fail to state how Fountain had violated the May 24, 2012
modification order. Did she violate the modification order when she reported to
Katcher that the child would be gone from school all week but then two days later
reported he had been in school some days that week? The earlier order did not
require her never to change the child’s itinerary, only to report changes to the
Family Wizard program. So, did Fountain fail to update the program at all? Or
did she fail to update the program within the thirty-six hour time limit? For both
violations, on what date did Fountain fail to comply with the previous orders? See
id. (requiring order to identify date of each violation found to constitute contempt).
The face of the commitment order does not answer these questions.
The commitment order is insufficient because these findings of violations of
prior orders are unclear. See Houston, 92 S.W.3d at 877. The contempt order
12
must spell out exactly what duties and obligations are imposed and what the
contemnor can do to purge the contempt. Id. (citing Ex parte Proctor, 398 S.W.2d
917, 918 (Tex. 1966)). Generally, in the contempt context, the order or motion
must be clear and unambiguous, which means the order or motion must be capable
of only one reasonable interpretation. Chambers, 898 S.W.2d at 260. Although the
revocation motion and the subsequent commitment order listed dates and described
Fountain’s actions, these documents are amenable to multiple reasonable
interpretations as to how or even whether Fountain had violated the earlier orders.
See id. (“A court order is insufficient to support a judgment of contempt only if its
interpretation requires inferences or conclusions about which reasonable persons
might differ.”) (emphasis in original) (citing Ex parte MacCallum, 807 S.W.2d
729, 730 (Tex. 1991)). This is fatal to the commitment order because Fountain
lacked the requisite notification of how to purge her contempt and how she might
avoid violating court orders in the future. See Shaklee, 939 S.W.2d at 145
(invalidating contempt order for failing to specify when contemnor violated earlier
orders); Ex parte Blasingame, 748 S.W.2d 444, 446–47 (Tex. 1988) (invalidating
contempt order punishing couple for taking action that they reasonably interpreted
as not violating prior orders).
The majority states that Fountain “wrongly assumes that Katcher’s motion to
revoke and the trial court’s revocation order must satisfy all of the procedural
13
safeguards for an enforcement motion under [Family Code] chapter 157, as if a
separate allegation, finding, and sentence for contempt of court were at issue.”
Slip Op. at 12. The majority then cites several cases for the proposition that a
motion to revoke the suspension of commitment actually “functions as a separate
enforcement motion,” and is therefore subject to chapter 157’s procedural
requirements, including section 157.166’s requirement that the contempt order
specifically state the manner of the contemnor’s noncompliance with a previous
court order, when the trial court, in a revocation proceeding, makes additional
contempt findings and imposes a different punishment. Slip Op. at 12–13. The
majority concludes that these cases are distinguishable and that chapter 157’s
procedural requirements are inapplicable, because, here, when the trial court
revoked the suspension of Fountain’s commitment it “did not enter additional
findings of contempt,” but instead it imposed the “original sentence” for the
“original, admitted episodes of contempt.” Slip Op. at 13.
The majority justifies its holding by stating,
In other cases, these [procedural] safeguards in fact have been applied
under circumstances when a party has been found in contempt and
sentenced, the commitment has been suspended subject to compliance
with specified conditions, and then in further proceedings to revoke
the suspension of commitment a trial court made additional findings
of contempt and imposed a different punishment. In such
circumstances, with new allegations of contempt and enhanced
sanctions, the motion to revoke does not merely invoke a previously
rendered judgment of contempt, but the new motion instead functions
as a separate enforcement motion for purposes of chapter 157.
14
Slip Op. at 12. The majority reasons that because Katcher “did not request and the
trial court did not enter additional findings of contempt,” but “merely enforced the
provisions of its own suspended commitment order,” “subchapter D of chapter 157
and its detailed procedures applicable to an original enforcement hearing” do not
apply. Slip op. at 13. The majority cites no authority for its holding. Rather, it
refuses to follow established authority on allegedly distinguishable factual
grounds. I, therefore, take the majority to be making its own law without authority
and in conflict with established law.
I disagree that the procedural safeguards applicable to enforcement motions
and orders are not applicable here. And I disagree that there are material factual
distinctions between this case and the prior cases in which the law has been
established.
The original May 24, 2012 contempt order found Fountain in contempt for
violating the provision of the October 18, 2011 agreed order requiring her to
execute all necessary releases to permit Katcher to obtain health-care information
concerning the child. The court ordered Fountain confined for sixty days in the
Harris County Jail and ordered her to pay $5,000 to Katcher in attorney’s fees, but
the court then suspended the commitment pursuant to Fountain’s compliance with
the October 18, 2011 agreed order and the May 24, 2012 modification order. In
the commitment order, which revoked the suspension of Fountain’s commitment,
15
the court ordered that Fountain be confined for sixty days in the Harris County Jail,
that Fountain pay $5,000 to Katcher, as ordered in the May 24, 2012 contempt
order, and that Fountain pay, “in addition to the attorney’s fees and costs assessed
in the order suspending commitment signed on May 24, 2012,” an additional
$4,379 in attorney’s fees and costs to Katcher’s attorney.
The court also found that Fountain violated the October 18, 2011 agreed
order by not “provid[ing] the required notice” that she and the child were moving
to Galveston County and the May 24, 2012 modification order by failing to notify
the child’s school of Katcher’s access and by failing to timely update Our Family
Wizard. The commitment order thus identified additional violations of ongoing
obligations without specifying how Fountain failed to comply with these
obligations and imposed a greater punishment than the original contempt order.
See Houston, 92 S.W.3d at 877 (contempt order must spell out duties and
obligations imposed and what contemnor can do to purge contempt). Thus, the
commitment order was not clear and unambiguous, as required for a holding of
contempt. See Chambers, 898 S.W.2d at 260.
I would conclude that the commitment order is functionally equivalent to an
original enforcement order, and, therefore, Family Code chapter 157’s procedural
safeguards, including section 157.166(a)’s requirement that the enforcement order
state the manner of the contemnor’s noncompliance, apply equally to this
16
proceeding. See Ex parte Durham, 708 S.W.2d 536, 537–38 (Tex. App.—Dallas
1986, orig. proceeding) (“The purpose of this commitment order is to enforce the
punishment provisions imposed by the original order holding relator in contempt.
Consequently, we hold that this commitment order is an ‘enforcement order’ under
[the predecessor to section 157.166].”); see also Houston, 92 S.W.3d at 876
(holding that civil contempt proceedings are quasi-criminal, entitling contemnor to
procedural due process “throughout the proceedings”). I would hold that
procedural statutory and constitutional due process safeguards were violated in this
case. See TEX. FAM. CODE ANN. § 157.166(a)(3); Shaklee, 939 S.W.2d at 145;
Houston, 92 S.W.3d at 875–77. Therefore, the commitment order is void. See
Houston, 92 S.W.3d at 875–77.
II. Confinement for Violating Court’s Command Before Court Issued
Order Imposing Obligation
Even if the trial court had clearly stated the manner of Fountain’s
noncompliance in the commitment order, the order would still be void for finding
Fountain in contempt of court for violating the court’s May 24, 2012 order on a
date predating the date on which the court actually signed that order. See
Chambers, 898 S.W.2d at 262 (“A contemnor cannot be held in constructive
contempt of court for actions taken prior to the time that the court’s order is
reduced to writing.”). It is the written order, signed by the court, that evinces a
party’s rights and duties, not oral admonitions at the hearing. In re Sellers, 982
17
S.W.2d 85, 87 (Tex. App.—Houston [1st Dist.] 1998, orig. proceeding) (citing Ex
parte Price, 741 S.W.2d 366, 367 (Tex. 1987)).
The second violation in the contempt order was for Fountain’s failure to
inform the child’s school about Katcher’s rights of access to the child by May 15,
2012. The underlying order giving rise to this obligation, however, was signed on
May 24, 2012, nine days after the date on which Fountain allegedly violated the
order. Under Texas law, this invalidates the commitment order. See Chambers,
898 S.W.2d at 262; Sellers, 982 S.W.2d at 87; see also Dunn v. Street, 938 S.W.2d
33, 35 n.3 (Tex. 1997) (per curiam) (voiding contempt judgment because
contemnor “did not violate a written order of the trial court”).
The trial court assessed a punishment of sixty days’ confinement and
required the payment of attorney’s fees for all of the contumacious acts it found.
This means that even if only one of the violation findings was invalid, the entire
order would be void.3 Ex parte Davila, 718 S.W.2d 281, 282 (Tex. 1986) (per
curiam) (“If one punishment is assessed for multiple acts of contempt, and one of
those acts is not punishable by contempt, the entire judgment is void”); Ex parte
Sealy, 870 S.W.2d 663, 667 (Tex. App.—Houston [1st Dist.] 1994, orig.
proceeding) (holding same). The commitment of a person to jail on a void order
violates constitutional due process. See Gordon, 584 S.W.2d at 688 (“Where the
3
Because none of the three acts in the commitment order will support a finding of
contempt, I would not reach Fountain’s other issues.
18
judgment ordering confinement is ‘void,’ the confinement is illegal and the relator
is entitled to discharge.”); In re Alexander, 243 S.W.3d 822, 827 (Tex. App.—San
Antonio 2007, orig. proceeding) (“A writ of habeas corpus will issue when the
relator has not been afforded due process, or when the order requiring confinement
is void.”).
Conclusion
I would hold that the trial court abused its discretion in revoking its order
suspending Fountain’s commitment to jail and that the commitment order is void.
Accordingly, I would grant the petition for writ of habeas corpus, and I would
order Fountain released from her bond and discharged.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Justice Keyes, dissenting.
19
ACCEPTED
221EFJ017272239
FIRST COURT OF APPEALS
HOUSTON, TEXAS
13 January 15 P1:54
Christopher A. Prine
CLERK
01-12-0704-CV FILED IN
____________________________ 1st COURT OF APPEALS
HOUSTON, TEXAS
1/15/2013 1:54:28 PM
IN THE FIRST COURT OF APPEALS CHRISTOPHER A. PRINE
HOUSTON, TEXAS Clerk
____________________________
IN RE TAMMY FOUNTAIN,
Relator.
____________________________
Original Proceeding from the 309th Judicial District
Harris County, Texas
____________________________
REAL PARTY’S RESPONSE TO RELATOR’S
MOTION FOR REHEARING AND REQUEST FOR ABATEMENT
____________________________
Daryl L. Moore (14324720)
DARYL L. MOORE, P.C.
1005 Heights Boulevard
Houston, Texas 77008
713.529.0048 Telephone
713.529.2498 Facsimile
Daryl@heightslaw.com Email
Linda Marshall (13031700)
5020 Montrose, Suite 700
Houston, Texas 77006
713.651.1313 Telephone
713.654.9898 Facsimile
Counsel for Real Party, Kathy Katcher
01-12-0704-CV
____________________________
REAL PARTY’S RESPONSE TO RELATOR’S
MOTION FOR REHEARING AND REQUEST FOR ABATEMENT
____________________________
TO THE JUSTICES OF THE FIRST COURT OF APPEALS:
Real Party in Interest, Kathy Katcher, files this Response to Relator’s Motion
for Rehearing.
I. INTRODUCTION
In a majority opinion issued on December 28, 2012, the Court denied Relator’s
request for habeas relief. On January 2, 2013, Relator filed a motion for rehearing.
In her motion, Relator asserts that the “parties agreed to the relief requested
prior to this Court’s opinions.” MOTION FOR REHEARING at p. 2. As set forth below,
the Court should abate this habeas proceeding so the parties can effectuate their
agreement.
II. RESPONSE
On December 12, 2012, trial counsel for the parties met and negotiated a
preliminary settlement agreement of their underlying enforcement dispute.1 Appendix
A at p. 3, ¶ 13. The intent of the parties as reflected in the agreement was that they
would perform under the agreement for a 6-month period — until June 2013 — at
1
Appellate counsel learned of the preliminary agreement when Relator filed her motion for
rehearing.
-1-
which time they would attend a status conference in the trial court to obtain a final
order.
In the preliminary agreement, Real Party agreed that she would drop the
enforcement proceeding. Id. at p. 3, ¶14. Real Party’s expressed intent, however,
was that the enforcement agreement would not be dismissed until June 2013, and that
her duty to inform this Court of the preliminary agreement did not arise until after
June 2013 — after a status conference and after the agreement became final. See
Appendix B (email of Linda Marshall, “paragraph 14 doesn’t take effect till June
2013.”). Indeed, Relator conceded that “a reading of the Rule 11 Agreement may also
support the position that such a duty to inform this Court of the agreement will not
arise until after June 2013.” SUPPLEMENT TO MOTION FOR REHEARING at p. 1.
III. REQUEST TO ABATE
The parties have reached a preliminary agreement regarding the underlying
enforcement proceeding that is the subject of this habeas proceeding. To permit the
parties to effectuate their agreement, Real Party asks that the Court abate this
proceeding until July 1, 2013. The abatement will permit the parties to perform under
the agreement, and will allow the trial court to conduct a status conference in June
2013 and enter a final order if the parties have performed under the agreement. Then,
if the agreement is performed, Real Party will dismiss the underlying enforcement
-2-
proceeding and — per paragraph 14 of the agreement — notify the Court that the
habeas proceeding has been rendered moot.
IV. PRAYER
Per the parties’ preliminary agreement, this habeas proceeding will not become
moot until after June 2013. Therefore, Real Party asks that the Court abate this
proceeding until July 1, 2013.
Respectfully submitted,
/s/ Daryl L. Moore
Daryl L. Moore (14324720)
DARYL L. MOORE, P.C.
1005 Heights Boulevard
Houston, Texas 77008
713.529.0048 Telephone
713.529.2498 Facsimile
Daryl@heightslaw.com Email
Linda Marshall (13031700)
5020 Montrose, Suite 700
Houston, Texas 77006
713.651.1313 Telephone
713.654.9898 Facsimile
Counsel for Real Party, Kathy Katcher
-3-
CERTIFICATE OF SERVICE
On January 15, 2013, I sent a true and correct copy of the foregoing to the
following:
Daniel J. Lemkuil
1314 Texas Avenue, Suite 1515
Houston, Texas 77002
(Counsel for Relator, Facsimile - 713.225.0099)
/s/ Daryl L. Moore
Daryl L. Moore
-4-
CERTIFICATE OF COMPLIANCE
Relying on the word count function in the word processing software used to
produce this document, I certify that the number of words in this Real Party’s
Response to Relator’s Motion for Rehearing and Request for Abatement (excluding
any caption, signature, proof of service and certificate of compliance) is 454.
This response complies with the typeface requirements of TRAP 9 because:
WordPerfect X4 in 14-point Times New Roman.
/s/ Daryl L. Moore
Daryl L. Moore
-5-
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.
Date: December 30, 2012, 8:44:01 PM CST
To: Greg Enos
Cc: Mary Quinn , 000 Toni Herbes
Subject: Re: Katcher/Fountain
If you will read the 12/12 agreement, you will see that paragraph 14 doesn't take effect till June
2013. I am willing to work with you on this but do not appreciate the implication that I am not
complying .
Where is a draft order? Perhaps when we have one to work with, we can deal with the habeas
issue as well.
Sent from my iPhone
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Cause No 01-12-00704-CV; In re Tammy Fountain, Relator
Original Proceeding on Petition for Writ of Habeas Corpus from Order Revoking
Suspension and for Commitment to County Jail, Cause No. 2010-31997, in the 309th
District Court of Harris County, Texas.
Relator Tammy Fountain was found in contempt of the trial court’s orders in an order
dated May 24, 2012. A 60-day jail sentence was suspended conditioned upon relator’s future
compliance with court orders. The suspension of the sentence was revoked on July 31, 2012 and
relator was committed to the Harris County Jail. Fountain filed this original habeas corpus
proceeding, and we ordered her released on bail pending resolution of the proceeding. The case
was set for submission on September 11, 2012 and this Court denied relief with written opinions
issued on December 28, 2012.
On January 2, Fountain filed a motion for rehearing, in which she informed the Court, for
the first time, of an agreement between the parties dated December 12, 2012, whereby real party
in interest Kathy Katcher agreed that “[t]he current enforcement shall be dismissed with
prejudice,” though the parties now disagree about the timing issues and effect of that agreement.
Katcher contends that the enforcement action would not be dismissed until June 2013, and
Fountain concedes that “a reading” of the agreement “may also support the position” that the
agreement did not require that this Court be informed of the agreed dismissal of the enforcement
action until after the entry of a final order anticipated “after June 2013.” Despite the foregoing,
Fountain requests in her motion for rehearing that we now “issue a writ of habeas corpus.”
As part of her response to the motion for rehearing, Katcher requested that we abate this
proceeding until July 1, 2013 to permit the parties to effectuate their agreement. The request for
abatement is granted, and this case is abated.
This case is removed from this court’s active docket until further order of this court. The
parties shall timely notify this court of all events affecting the status of this case, including when
the trial court has entered a final order. The parties shall file either a status report or a motion to
dismiss by July 1, 2013.
It is so ORDERED.
Judge=s signature: /s/ Michael Massengale
Acting for the Court
Panel consists of Justices Keyes, Massengale, and Brown
Date: January 29, 2013
ACCEPTED
221EFJ017573082
FIRST COURT OF APPEALS
HOUSTON, TEXAS
13 July 1 P3:00
Christopher A. Prine
CLERK
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
7/1/2013 3:00:01 PM
CHRISTOPHER A. PRINE
Clerk
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Cause No 01-12-00704-CV; In re Tammy Fountain, Relator
Original Proceeding on Petition for Writ of Habeas Corpus from Order Revoking
Suspension and for Commitment to County Jail, Cause No. 2010-31997, in the 309th
District Court of Harris County, Texas.
Relator Tammy Fountain was found in contempt of the trial court’s orders in an order dated
May 24, 2012. Fountain filed this original habeas corpus proceeding, and we ordered her released
on bail pending resolution of the proceeding. This court denied relief with written opinions
issued on December 28, 2012. On January 2, Fountain filed a motion for rehearing, in which she
informed the court of a rule 11 agreement between the parties, dated December 12, 2012, whereby
real party in interest Kathy Katcher agreed that “[t]he current enforcement shall be dismissed with
prejudice.” Katcher requested that we abate the proceeding until July 1, 2013 to permit the parties
to effectuate their agreement. We granted the request for abatement and ordered the parties to file
a status report or a motion to dismiss by July 1, 2013. We also ordered the parties to timely notify
the court of all events affecting the status of the case.
Katcher filed a status report on July 1, 2013, informing the court that a status conference
has been set for July 2, 2013 and that Fountain filed a motion for continuance to hire another
attorney.
The parties shall file an updated status report or a motion to dismiss within 3 days of any
further status conference held in the trial court. Additionally, the parties shall inform this court no
later than August 9, 2013:
a. Whether the trial court has been requested to enter a final order as referenced in paragraph
13 of the parties’ rule 11 agreement dated December 12, 2012, and if not, why not;
b. Whether Katcher has dismissed her enforcement petition with prejudice as referenced in
paragraph 14 of the parties’ rule 11 agreement dated December 12, 2012, and if not, why
not;
c. Whether this original proceeding has become moot for any reason; and
d. Whether there is any reason why this original proceeding should not be reinstated on the
court’s active docket.
To the extent this original proceeding is not moot, Katcher is requested to provide the court
of appeals with any revised or supplemental response to the motion for rehearing no later than
August 9, 2013.
It is so ORDERED.
Judge’s signature: /s/ Michael Massengale
Justice Massengale, Acting Individually
Panel consists of Justices Keyes, Massengale, and Brown
Date: July 2, 2013
ACCEPTED
221EFJ017644491
FIRST COURT OF APPEALS
HOUSTON, TEXAS
13 August 9 A11:43
Christopher A. Prine
NO. 01-12-00704-CV CLERK
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS 8/9/2013 11:43:07 AM
FOR THE FIRST DISTRICT OF TEXASCHRISTOPHER A. PRINE
Clerk
HOUSTON DIVISION
IN RE TAMMY FOUNTAIN, RELATOR
STATUS REPORT OF KATHY KATCHER
Linda Marshall
SBT 13031700
5020 Montrose, Suite 700
Houston TX 77084
Telephone: 713-651-1313
Fax: 713-654-9898
lgmlaw@airmail.net
ATTORNEY FOR KATHY KATCHER
TO THE HONORABLE COURT OF APPEALS:
This is a habeas corpus proceeding. The Honorable Sheri Y. Dean held
TAMMY FOUNTAIN in contempt. TAMMY FOUNTAIN filed a petition for writ
of mandamus, which was denied. TAMMY FOUNTAIN then filed a motion for
rehearing, which this Court abated to allow the trial court to conduct a status
conference during the month of June 2013.
A status conference was held on July 2, 2013. At that status conference, at
which testimony was taken from MS. FOUNTAIN, the trial judge ordered
temporary custody to KATHY KATCHER and a psychological evaluation to be
performed on MS. FOUNTAIN. No further action will be taken until there is at
least a preliminary report from Dr. Ed Silverman, who is performing the evaluation.
This preliminary report was to have been made by August 14 at the latest; however,
Dr. Silverman has notified the parties that he cannot meet that deadline. The status
conference was recessed until August 14, 2013; given Dr. Silverman’s inability to
provide a report by that date, it is likely it will again be recessed.
Respectfully submitted,
/s/ Linda Marshall
LINDA MARSHALL
SBT 13031700
5020 Montrose, Suite 700
Houston TX 77084
Telephone 713-651-1313
Fax 713-654-9898
lgmlaw@airmail.net
CERTIFICATE OF SERVICE
I certify that I delivered a copy of the foregoing pleading to all attorneys
herein by facsimile transmission and email on August 9, 2013.
______________________
Linda Marshall
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Cause No 01-12-00704-CV; In re Tammy Fountain, Relator
Original Proceeding on Petition for Writ of Habeas Corpus from Order
Revoking Suspension and for Commitment to County Jail, Cause
No. 2010-31997, in the 309th District Court of Harris County, Texas.
Relator Tammy Fountain was found in contempt of the trial court’s orders in
an order dated May 24, 2012. Fountain filed this original habeas corpus
proceeding, and we ordered her released on bail pending resolution of the
proceeding. Finding no error in the trial court’s contempt finding, this court denied
habeas corpus relief with written opinions issued on December 28, 2012.
On January 2, Fountain filed a motion for rehearing, in which she belatedly
informed the court of a rule 11 agreement between the parties in their ongoing
proceeding in the family court, dated December 12, 2012. The agreement
concerned various matters including: details about scheduling possession of a child
during holidays; details about supervision, upbringing, and medical care of the child;
a dispute resolution procedure; and payment of attorney’s fees. In addition, the
specific portions of the agreement that relate to the habeas corpus proceeding filed in
this court are as follows:
13. This agreement is to temporary orders with a status
conference in June 2013 except # 11, 12, 14, which will be
part of a final order.
14. The current enforcement shall be dismissed with
prejudice. Ms. Katcher shall inform the Court of Appeals
she no longer opposes the pet. for habeas corpus.
Katcher responded to the motion for rehearing, offering the explanation that
“The intent of the parties as reflected in the agreement was that they would perform
under the agreement for a 6-month period — until June 2013 — at which time they
would attend a status conference in the trial court to obtain a final order.” Katcher
1
requested that we abate the proceeding until July 1, 2013 to permit the parties to
effectuate their agreement. We granted the request for abatement and ordered the
parties to file a status report or a motion to dismiss by July 1, 2013. We also
ordered the parties to timely notify the court of all events affecting the status of the
case.
Katcher filed a status report on July 1, 2013, informing the court that a status
conference has been set for July 2, 2013 and that Fountain filed a motion for
continuance to hire another attorney. We requested than a further update be
provided within three days of any further status conference, specifically requesting
updates about (a) any request that the trial court enter a final order as referenced in
paragraph 13 of the parties’ rule 11 agreement dated December 12, 2012, (b) any
dismissal of Katcher’s enforcement petition with prejudice as referenced in
paragraph 14 of the agreement, (c) any other developments that may have mooted
this original proceeding, and (d) any reason why this original proceeding should not
be reinstated.
Neither party filed the requested report within three days of the hearing.
Over thirty days later, on August 9, Katcher filed another status report, informing us
that:
A status conference was held on July 2, 2013. At that status
conference, at which testimony was taken from
MS. FOUNTAIN, the trial judge ordered temporary custody to
KATHY KATCHER and a psychological evaluation to be
performed on MS. FOUNTAIN. No further action will be taken
until there is at least a preliminary report from Dr. Ed Silverman,
who is performing the evaluation. This preliminary report was
to have been made by August 14 at the latest; however,
Dr. Silverman has notified the parties that he cannot meet that
deadline. The status conference was recessed until August 14,
2013; given Dr. Silverman’s inability to provide a report by that
date, it is likely it will again be recessed.
Fountain filed her own status report on August 21. In response to the specific
inquiries in our July 2 order, it advised
2
a. “the trial court has not been requested to enter a final order as
referenced in paragraph 13 of the parties’ rule 11 agreement
dated December 12, 2012. The issue is awaiting a
judge/attorney conference.”
b. “Katcher has not dismissed her enforcement petition with
prejudice as referenced in paragraph of the parties’ rule 11
agreement dated December 3 12, 2012 because the parties are
awaiting the judicial conference.”
c. She contends that the original proceeding is not moot “at this
time.”
d. She further contended, “This case should not be reinstated on
the court’s active docket as the agreement has not been
entered, perfected, or set aside. The parties are awaiting the
pleasure of the Court, who is addressing the best interest of
the child’s issues at this point.”
It is the internal operating procedure of this court to attempt to resolve
motions for rehearing within 30 days. Nevertheless an abatement was ordered, at
Katcher’s request, to allow the parties six months to implement their agreement
which contemplated a resolution by June 2013. Now nearly nine months after our
original opinions, there still is no apparent resolution. The abatement cannot
continue indefinitely and the parties have not given us any indication that the matter
will be concluded within short order.
It bears reiteration that this original proceeding was filed well over a year ago,
in May 2012, to challenge the revocation of the suspension of an order committing
Fountain to a 60-day jail term. Fountain did not remain incarcerated pending our
consideration of the habeas corpus petition, and no party has indicated that she was
jailed at any time after this court declined to order habeas corpus relief. Moreover,
this court’s resolution of the habeas corpus proceeding does not preclude the parties
from conducting further proceedings before the trial court with respect to the
contempt finding, including presenting for that court’s consideration whatever
agreements the parties may reach concerning their dispute. But in any case, the
pending motion for rehearing notwithstanding, this court cannot be bound by any
agreement by the parties as to the granting of habeas corpus relief. Likewise, the
fact that we found no error in the trial court’s order does not preclude the trial court
from implementing the parties’ agreements with respect to the contempt finding.
3
In light of the foregoing, we lift our prior order of abatement, and we direct
the Clerk of the court to reinstate the case on the court’s docket. Any further
submission relating to the pending motion for rehearing should be filed no later than
Tuesday, October 1.
It is so ORDERED.
Judge’s signature: /s/ Michael Massengale
Justice Massengale, Acting for the Court
Panel consists of Justices Keyes, Massengale, and Brown
Date: September 24, 2013
4
ACCEPTED
221EFJ017740175
FIRST COURT OF APPEALS
HOUSTON, TEXAS
13 September 27 P2:33
Christopher A. Prine
NO. 01-12-00704-CV CLERK
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS 9/27/2013 2:33:16 PM
FOR THE FIRST DISTRICT OF TEXASCHRISTOPHER A. PRINE
Clerk
HOUSTON DIVISION
IN RE TAMMY FOUNTAIN, RELATOR
MOTION TO ENFORCE PARTIES' RULE 6.6 AGREEMENT
Linda Marshall
SBT 13031700
5020 Montrose, Suite 700
Houston TX 77084
Telephone: 713-651-1313
Fax: 713-654-9898
lgmlaw@airmail.net
ATTORNEY FOR KATHY KATCHER
TO THE HONORABLE COURT OF APPEALS:
Real Party, Kathy Katcher, files this Motion to Enforce the Parties' Rule 6.6
Agreement, which is attached.
Respectfully submitted,
/s/ Linda Marshall
LINDA MARSHALL
SBT 13031700
5020 Montrose, Suite 700
Houston TX 77084
Telephone 713-651-1313
Fax 713-654-9898
lgmlaw@airmail.net
CERTIFICATE OF SERVICE
I certify that I delivered a copy of the foregoing pleading to all attorneys
herein by facsimile transmission and email on September 27, 2013.
/s/ Linda Marshall
Linda Marshall
01-12-0704-CV
IN THE FIRST COURT OF APPEALS
HOUSTON, TEXAS
IN RE TAMMY FOUNTAIN,
Relator.
THE PARTIES= RULE 6.6 AGREEMENT
Relator, Tammy Fountain (Fountain), and Real Party in Interest, Kathy
Katcher (Katcher), file this Rule 6.6 Agreement and would respectfully show:
A. Introduction.
1. Fountain sought habeas relief, which this Court denied on December
28, 2012.
2. Fountain filed a motion for rehearing and notified the Court that the
parties had reached an agreement.
3. Katcher filed a response and sought an abatement, which the Court
granted.
4. On September 24, 2013, the Court lifted the abatement and directed
that the parties file any further submissions by October 1, 2013.
5. The parties submit this agreement in response to the Court=s order.
B. Rule 6.6 Agreement
6. Rule 6.6 permits parties or their counsel to file an enforceable
agreement in the appellate court if the agreement is in writing
and signed by the parties or their counsel. TEX.R.APP.P. 6.6.
7. The parties file this agreement in accordance with Rule 6.6.
• Fountain agrees to withdraw and hereby withdraws her
motion for rehearing; and
• Katcher agrees not to seek enforcement of the trial court's
contempt order of May 24, 2012, or the revocation order of
1
July 31, 2012.
C. Prayer
Therefore the parties ask that the Court treat Fountain's motion for
rehearing as withdrawn and take no further action in this habeas proceeding,
but specifically including that this Court not enter an order remanding
Relator to custody, but release the bond.
Respectfully submitted,
Is/ Linda Marshall
LINDA MARSHALL (13031700)
5020 Montrose, Suite 700
Houston TX 77006
1
Upon filing of this agreement in the trial court, the parties also agree that this constitutes an enforceable
agreement under TEX.R.CIV.P. II.
Telephone 713 651-1313
Fax 713 654-9898
lgmlaw@ainnail.net
Counsel for Real Party Katcher
/s/ Daniel J. Lemkuil
DANIEL J. LEMKUIL (00789448)
1314 Texas Avenue, Suite 1515
Houston TX 77002
Telephone 713 993-9100
Fax 713 225-0099
Counsel for Relator Fountain
5
CERTIFICATE OF SERVICE
A true and correct }!~s Rule 6.6 Agreement has been forwarded to
all counsel of record on -~ 1--J
~ 2013, as follows:
Daniel J. Lemkuil
1314 Texas A venue, Suite 1515
Houston, Texas 77002
(Via facsimile and email)
Is/ Linda Marshall
Linda Marshall
4
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
ORDER
Appellate case name: In re Tammy Fountain, Relator
Appellate case number: 01-12-00704-CV
Original Proceeding on Petition for Writ of Habeas Corpus
Real Party in Interest Kathy Katcher has filed a “Motion to Enforce Parties’ Rule 6.6
Agreement.” The motion is GRANTED, and accordingly the motion for rehearing filed by
relator Tammy Fountain is DISMISSED pursuant to the parties’ Rule 6.6 agreement.
It is so ORDERED.
Judge’s signature: /s/ Michael Massengale_______________________
Acting individually Acting for the Court
Panel consists of Justices Keyes, Massengale, and Brown.
Date: October 15, 2013
ACCEPTED
221EFJ017775658
FIRST COURT OF APPEALS
HOUSTON, TEXAS
13 October 17 P4:34
Christopher A. Prine
THE LAW OFFICE OF DANIEL J. LEMKUIL CLERK
1314 TEXAS AVE., SUITE 1515
HOUSTON, TX 77002 FILED IN
1st COURT OF APPEALS
713-993-9100 (TEL) HOUSTON, TEXAS
713-225-0099 (FAX) 10/17/2013 4:34:55 PM
CHRISTOPHER A. PRINE
Clerk
October 17, 2013
VIA E-FILING
Hon. Christopher A. Prine
Clerk of the Court
First Court of Appeals
301 Fannin
Houston, Texas 77002
RE: No. 01-12-00704-CV; In re Tammy Fountain, in the Court
of Appeals for the First District at Houston.
To the Clerk of the Court:
This is a request to modify, correct or reform this Court’s October 15,
2013 order dismissing the motion for rehearing filed by relator, Tammy
Fountain pursuant to the parties’ Rule 6.6 Agreement.
The Motion to Enforce the Parties’ Rule 6.6 Agreement, filed on
September 27, 2013, included the following payer:
“Therefore the parties ask that the Court treat
Fountain’s motion for rehearing as withdrawn and take
no further action in this habeas proceeding, but
specifically including that this Court not enter an order
remanding Relator to custody, but release the bond.”
This Court’s October 15, 2013 order does not address the agreement
that the Relator not be remanded to custody and that the bond be released.
Relator respectfully requests that this Court correct, modify, or reform
its October 15, 2013 Order to address these issues.
1
Respectfully submitted,
Law Office of Daniel J. Lemkuil
/s/ Daniel J. Lemkuil
Daniel J. Lemkuil
State Bar No. 00789448
1314 Texas Avenue, Suite 1515
Houston, Texas 77002
Telephone: (713) 993-9100
Facsimile:(713) 225-0099
daniel_lemkuil@flash.net
ATTORNEY FOR RELATOR
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the foregoing was served upon all
parties or counsel of record in accordance with the Texas Rules of Appellate
Procedure on October 17, 2013.
/s/ Daniel J. Lemkuil
Daniel J. Lemkuil
Attorney for Relator
2
ACCEPTED
221EFJ017250669
FIRST COURT OF APPEALS
HOUSTON, TEXAS
13 January 2 P5:17
M KARINNE McCULLOUGH
NO. 01-12-00704-CV CLERK
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS
1/2/2013 5:17:53 PM
FIRST DISTRICT CHRISTOPHER A. PRINE
Clerk
HOUSTON, TEXAS
IN RE TAMMY FOUNTAIN,
RELATOR
RELATOR’S MOTION FOR REHEARING
from an
“Order Revoking Suspension and for Commitment to County Jail”
in Cause No. 2010-31997
in the 309th Judicial District Court of Harris County, Texas
Daniel J. Lemkuil
State Bar No. 00789448
1314 Texas Ave., Suite 1515
Houston, TX 77002
713-993-9100
713-225-0099 (fax)
dlemkuil@flash.net
Attorney for Relator
1
__________________________________________
RELATOR’S MOTION FOR REHEARING
__________________________________________
Relator, TAMMY FOUNTAIN, submits this motion for rehearing in
response to the opinion issued by the Court on December 28, 2012, and
respectfully requests that the Court consider the following:
I.
Justice Keyes’s Dissenting Opinion Properly Analyzes this Case
Justice Keyes’s dissenting opinion correctly finds that Relator’s order
revoking the suspension of commitment is in fact protected by the same
statutory and constitutional procedural safeguards that apply to contempt
proceedings. Keyes, J. dissenting, Slip Op. at 14-15. As Justice Keyes points
out, the majority cites no authority for its holding. Id. at 15. This Court’s
opinion has therefore created law that is contrary to well established
principles of enforcement proceedings, overly complicating an already
confusing body of case law. Therefore, this Court should grant rehearing to
reconsider its ruling.
II.
The Parties Agreed to the Relief Requested Prior to this Court’s Opinions
Even if this Court declines to grant rehearing based on the foregoing,
Relator asks the Court to grant rehearing because the parties agreed by Rule
11 to the requested relief prior to the issuance of this Court’s opinion.
2
Specifically, on December 12, 2012, the parties agreed to dismiss the
underlying enforcement proceeding with prejudice and KATHY
KATCHER, Real Party in Interest, agreed to notify this Court that she does
not oppose this habeas corpus proceeding. A certified copy of the December
12, 2012 Rule 11 Agreement is attached hereto as Appendix A. The Rule 11
Agreement states as follows:
“13. This agreement is to temporary orders with a status conference in
June 2013 except #11, 12, 14, which will be part of a final order:
14. The current enforcement shall be dismissed with prejudice.
Ms. Katcher shall inform that Court of Appeals that she no
longer opposes the pet. for habeas corpus.”
Appendix A at 3 (emphasis added).
It is important to note that it was the duty of KATHY KATCHER,
Real Party in Interest, to notify this Court that she does not oppose the
habeas proceeding. To date, she has not done so.
The temporary orders that are the subject of the December 12, 2012
Rule 11 Agreement are set for entry on January 3, 2013 in the trial court.
Even though the December 12, 2012 Rule 11 Agreement has not yet been
reduced to a final judgment, it demonstrates a clear intent to compromise on
this issue and this Court should grant rehearing to grant the unopposed
requested relief, set aside the expressed order, and grant habeas as
unopposed.
3
Prayer
For the reasons stated in this motion for rehearing, Relator, TAMMY
FOUNTAIN, asks this Honorable Court to grant this motion for rehearing,
withdraw its opinion, and issue a writ of habeas corpus as unopposed on the
basis of the expressed dissent.
Respectfully submitted,
/s/ Daniel J. Lemkuil
______________________________
Daniel J. Lemkuil
State Bar No. 00789448
1314 Texas Avenue, Suite 1515
Houston, TX 77002
713-993-9100
713-225-0099 (fax)
Attorneys for Relator
Certificate of Service
I hereby certify that on January 2, 2013 a true and correct copy of this
document was sent to:
Linda Marshall Daryl L. Moore
5020 Montrose, Suite 700 1005 Heights Boulevard
Houston, TX 77006 Houston, Texas 77008
Attorney for Real Party in Interest Attorney for Real Party in Interest
Via Facsimile Via e-service
/s/ Daniel J. Lemkuil
______________________________
Daniel J. Lemkuil
4
Certification
I hereby certify that I have reviewed this motion and concluded that
every factual statement in the petition is supported by competent evidence
included in the appendix or record.
/s/ Daniel J. Lemkuil
______________________________
Daniel J. Lemkuil
5
Appendix
1. Rule 11 Agreement, signed and filed in the trial court on December
12, 2012
6
APPENDIX A
ACCEPTED
221EFJ017253947
FIRST COURT OF APPEALS
HOUSTON, TEXAS
13 January 4 P1:44
CHRISTOPHER A. PRINE
CLERK
THE LAW OFFICE OF DANIEL J. LEMKUIL
1314 TEXAS AVE., SUITE 1515 FILED IN
HOUSTON, TX 77002 1st COURT OF APPEALS
HOUSTON, TEXAS
713-993-9100 (TEL) 1/4/2013 1:44:11 PM
713-225-0099 (FAX) CHRISTOPHER A. PRINE
Clerk
January 4, 2013
Hon. Christopher A. Prine
Clerk of the Court
First Court of Appeals
301 Fannin St.
Houston, Texas 77002
RE: NO. 01-12-00704-CV; IN RE TAMMY FOUNTAIN; IN THE
COURT OF APPEALS FOR THE FIRST DISTRICT,
HOUSTON, TEXAS
SUPPLEMENT TO MOTION FOR REHEARING
To the Honorable Justices of the First Court of Appeals:
Please allow this letter to serve as a supplement to TAMMY
FOUNTAIN, Relator’s Motion for Rehearing, filed January 2, 2013.
As stated in Relator’s Motion for Rehearing, a December 12, 2012
Rule 11 Agreement in the underling proceeding provides that Real Party in
Interest, KATHY KATCHER, will inform the Court of Appeals that she
does not oppose this habeas corpus proceeding. See Appendix A to Motion
for Rehearing at 3. To the extent that Relator asserted that this duty to
inform the Court of Appeals has already occurred, Relator concedes that a
reading of the Rule 11 Agreement may also support the position that such a
duty to inform this Court of the agreement will not arise until after June
2013.
1
Respectfully submitted,
/s/ Daniel J. Lemkuil
______________________________
Daniel J. Lemkuil
State Bar No. 00789448
1314 Texas Avenue, Suite 1515
Houston, TX 77002
713-993-9100
713-225-0099 (fax)
Attorneys for Relator
Certificate of Service
I hereby certify that on January 4, 2013 a true and correct copy of this
document was sent to:
Linda Marshall Daryl L. Moore
5020 Montrose, Suite 700 1005 Heights Boulevard
Houston, TX 77006 Houston, Texas 77008
Attorney for Real Party in Interest Attorney for Real Party in Interest
Via Facsimile Via e-service
/s/ Daniel J. Lemkuil
______________________________
Daniel J. Lemkuil
2
COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
————————————
In re Tammy Fountain, Relator
No. 01-12-00704-CV
Original Proceeding on Petition for Writ of Habeas Corpus
————————————
ORDER
In a letter to the clerk of the court, counsel for relator asked that we “correct,
modify, or reform” our October 15, 2013 order to address a provision of the parties’ Rule
6.6 agreement which stated that they “ask that the Court . . . take no further action in this
habeas proceeding, but specifically including that this Court not enter an order remanding
Relator to custody, but release the bond.”
This court ordered relator discharged on execution and filing of a bond in the
amount of $500. See Tex. R. App. P. 52.8(b)(3). Subsequently we denied the petition for
writ of habeas corpus, and the real party in interest agreed not to seek enforcement of the
trial court’s contempt order of May 24, 2012 or the revocation order of July 31, 2012. In
light of the parties’ agreement, the trial court may, in its discretion, vacate its July 31,
2012 order, and it may order that the bond be released.
IT IS SO ORDERED.
Judge’s signature: /s/ Michael Massengale_______________________
Acting individually Acting for the Court
Panel consists of Justices Keyes, Massengale, and Brown.
Justice Keyes, dissenting.
Date: November 7, 2013
Dissent issued November 7, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00704-CV
———————————
IN RE TAMMY FOUNTAIN, Relator
Original Proceeding on Petition for Writ of Habeas Corpus
MEMORANDUM DISSENT FROM ORDER DATED NOVEMBER 7, 2013
This is an original habeas corpus proceeding arising out of an underlying
proceeding to enforce a child custody agreement pending in the trial court.
Relator, Tammy Fountain, challenged the trial court’s order of July 31,
2012, revoking its earlier suspension of her sentence for contempt for violating the
court’s temporary orders and committing her to jail.1 On December 28, 2012, this
Court issued an opinion affirming the trial court’s revocation order over my
dissent. Unknown to this Court, the parties had filed a Rule 11 Agreement in the
trial court on December 12, 2012. One of the provisions of the Rule 11 Agreement
was the agreement of real party in interest, Kathy Katcher, to drop the enforcement
proceeding once the trial court approved the settlement agreement. The trial
court’s approval was contingent on the parties’ performing under the agreement for
six months.
On January 2, 2013, Fountain filed a motion for rehearing, in which she
requested withdrawal of this Court’s December 28, 2012 opinion. At Katcher’s
request, this Court abated proceedings on Fountain’s motion so that the parties
could finalize their settlement agreement with regard to the enforcement
proceeding as set out in their Rule 11 Agreement. The trial court has repeatedly
moved back the date for a status conference, scheduled in the Rule 11 Agreement
for June 2013 and referenced in the Rule 11 Agreement as a condition precedent to
finalization of the Agreement. Therefore, the Agreement has not been finalized.
Nor has it been withdrawn.
1
The underlying case is Kathy Katcher v. Tammy Fountain, No. 2010-31997, in the
309th District Court of Harris County, Texas, the Honorable Sheri Y. Dean,
presiding.
2
Despite the still-pending settlement agreement, on September 24, 2013, this
Court, sua sponte, lifted its abatement of the habeas corpus proceeding and advised
the parties that it intended to deny Fountain’s motion for rehearing.
The parties responded by filing an agreement pursuant to Texas Rule of
Appellate Procedure 6.6, asking this Court to “treat Fountain’s motion for
rehearing as withdrawn and take no further action in this habeas proceeding,” not
to enter an order remanding Fountain to custody, and to release a bond that this
Court had required pending resolution of the habeas corpus proceedings.
This Court issued an order on October 15, 2013, that dismissed the motion
for rehearing but that did not address the parties’ other requests.
On October 17, 2013, Fountain filed a “request to modify, correct or reform
this Court’s October 15, 2013 order dismissing the motion for rehearing filed by
relator, Tammy Fountain pursuant to the parties’ Rule 6.6 Agreement.”
The panel majority now issues an advisory opinion in the form of an Order
advising the trial court that, “[i]n light of the parties’ agreement, the trial court
may, in its discretion, vacate its July 31, 2012 order, and it may order that the bond
be released.” The order itself does not release the bond.
Because I believe that the panel majority lacks the power to advise the trial
court regarding the exercise of the trial court’s powers and that the majority has
failed to honor the terms of the parties’ Rule 11 and Rule 6.6 Agreements, has
3
overstepped its own jurisdiction in issuing an advisory opinion to the trial court,
and has failed to dispose of all issues before it that are necessary to the final
resolution of this dispute—namely, by failing to order release of the bond that this
Court had previously required—I dissent.
I would have honored the terms of the parties’ Rule 11 and Rule 6.6
Agreements and the provisions of Texas Rule of Appellate Procedure
42.1(a)(2)(C), governing voluntary dismissal of civil cases by agreement of the
parties, pursuant to which we abated the habeas proceedings in this Court. I would
not have lifted our order of abatement, and I would not now issue an order advising
the trial court of its options. Because the abatement was nevertheless lifted and the
motion for rehearing of this Court’s December 28, 2012 opinion was dismissed
pursuant to the parties’ Rule 6.6 Agreement, I would treat the motion for rehearing
as withdrawn and I would release the bond. I note that this Court’s October 15,
2013 order dismissing the motion for rehearing contains no order remanding
Fountain to custody.
Background
Fountain filed this original habeas corpus proceeding to challenge the trial
court’s July 31, 2012 order revoking its earlier suspension of a contempt sentence
it had imposed on her in the underlying enforcement proceeding for violation of
temporary orders entered in a child custody dispute.
4
On August 3, 2012, in response to Fountain’s request, this Court issued a
memorandum order ordering the Sheriff of Harris County to discharge Fountain
from custody upon execution and filing of a $500 bond with the Sheriff.
On December 28, 2012, the majority issued an opinion upholding the trial
court’s revocation of its order suspending commitment. I dissented. I agreed with
Fountain that the commitment order was void and that her commitment to jail
violated her constitutional right to due process of law. I would have granted the
habeas corpus petition, and I would have ordered Fountain discharged.
On January 2, 2013, five days after issuance of this Court’s opinions in the
underlying habeas proceeding, Fountain filed a motion for rehearing that, inter alia,
informed the Court that “the parties agreed by Rule 11 to the requested relief prior
to the issuance of this Court’s opinion.” Fountain stated that, specifically, the
parties agreed to dismiss the underlying enforcement proceeding and Katcher
agreed to notify this Court that she does not oppose the habeas proceeding. The
motion also stated, “The temporary orders that are the subject of the December 12,
2012 Rule 11 Agreement are set for entry on January 3, 2013 in the trial court.”
Fountain asked that this Court “grant this motion for rehearing, withdraw its
opinion, and issue a writ of habeas corpus as unopposed on the basis of the
expressed dissent.”
5
On January 15, 2013, Katcher responded to Fountain’s motion for rehearing.
A copy of the signed agreement, file stamped December 12, 2012, by the district
clerk, was attached. Katcher stated, “On December 12, 2012, trial counsel for the
parties met and negotiated a preliminary settlement agreement of their underlying
enforcement dispute.” She further stated, “The intent of the parties as reflected in
the agreement was that they would perform under the agreement for a 6-month
period—until June 2013—at which time they would attend a status conference in
the trial court to obtain a final order.” Katcher stated that she agreed to drop the
enforcement proceeding, but that the “expressed intent” of the agreement in
paragraph 14 “was that the enforcement agreement would not be dismissed until
June 2013, and that her duty to inform this Court of the preliminary agreement did
not arise until after June 2013—after a status conference and after the agreement
became final.”
Katcher requested that this Court abate the habeas proceeding until July 1,
2013. She explained,
The abatement will permit the parties to perform under the agreement,
and will allow the trial court to conduct a status conference in June
2013 and enter a final order if the parties have performed under the
agreement. Then, if the agreement is performed, [Katcher] will
dismiss the underlying enforcement proceeding and—per paragraph
14 of the agreement—notify the Court that the habeas proceeding has
been rendered moot.
6
In a “Supplement to Motion for Rehearing,” filed January 4, 2013, Fountain
conceded that “a reading of the Rule 11 Agreement may also support the position
that such a duty to inform this Court of the agreement will not arise until after June
2013.”
This Court issued an order abating proceedings on Fountain’s motion for
rehearing until July 1, 2013. The order required that the parties “timely notify this
court of all events affecting the status of this case, including when the trial court
has entered a final order” and that they “file either a status report or a motion to
dismiss by July 1, 2013.”
On July 1, 2013, Katcher filed a status report informing this Court that the
trial court had set the status conference required by the Rule 11 Agreement, which
had been requested for June, for July 2, 2013, and, therefore, there was no final
order of the trial court in the underlying enforcement proceeding.
The next day, July 2, the authoring judge of the December 28, 2012 opinion,
acting individually, issued an order requiring the parties to “file an updated status
report or a motion to dismiss within 3 days of any further status conference held in
the trial court.” The order also required the parties to satisfy a number of other
conditions. It required the parties to “inform this court no later than August 9,
2013” whether the trial court had been requested to enter a final order and “if not,
why not.” It required that this Court be told whether Katcher had dismissed her
7
enforcement petition with prejudice; “[w]hether this original proceeding has
become moot for any reason”; and “[w]hether there is any reason why this original
proceeding should not be reinstated on the court’s active docket.” The order also
stated, “To the extent this original proceeding is not moot, Katcher is requested to
provide the court of appeals with any revised or supplemental response to the
motion for rehearing no later than August 9, 2013.”
On August 9, 2013, Katcher filed a status report in response to the July 2,
2013 order. She reported that a status conference had been held on July 2, 2013,
and that the trial judge ordered temporary custody of the minor child to Katcher
and ordered a psychological evaluation of Fountain. The report stated that no
further action would be taken in the trial court until there was “at least a
preliminary report” from the physician performing the psychological evaluation.
The status report further stated that the preliminary report was to have been
performed by August 14, but that the physician had stated he could not meet that
deadline, so the status conference in the trial court, which had been recessed until
August 14, 2013, was likely to be recessed again.
On August 21, 2013, Fountain likewise filed a status report. She reported
that the parties were “to confer with the trial court regarding disposition of the
underlying enforcement action,” but that “[t]his event has not been formally set.”
She stated, “This case should not be reinstated on the court’s active docket as the
8
agreement has not been entered, perfected, or set aside. The parties are awaiting
the pleasure of the [trial] Court, who is addressing the best interests of the child’s
issues at this point.”
On September 24, 2013, this Court lifted the abatement and directed that the
parties file any further submissions relating to Fountain’s motion for rehearing by
October 1, 2013.
On September 27, 2013, in response to this Court’s September 24, 2013
order, the parties submitted an agreement pursuant to Rule 6.6 together with a
“Motion to Enforce Parties’ Rule 6.6 Agreement.” See TEX. R. APP. P. 6.6
(providing that parties or their counsel may file enforceable agreement in appellate
court if agreement is in writing and signed by parties or their counsel). The Rule
6.6 Agreement provided:
 Fountain agrees to withdraw and hereby withdraws her motion
for rehearing; and
 Katcher agrees not to seek enforcement of the trial court’s
contempt order of May 24, 2012, or the revocation order of July
31, 2012.
The parties further agreed, that, as a consequence of their having filed the Rule 6.6
Agreement in the trial court, the agreement also “constitutes an enforceable
agreement under TEX. R. CIV. P. 11.” The parties asked that this “Court treat
Fountain’s motion for rehearing as withdrawn and take no further action in this
9
habeas proceeding, but specifically including that this Court not enter an order
remanding Relator to custody, but release the bond.”
On October 15, 2013, this Court issued an order that granted Katcher’s
“Motion to Enforce Parties’ Rule 6.6 Agreement” and dismissed Fountain’s motion
for rehearing “pursuant to the parties’ Rule 6.6 agreement.” The Court did not
remand Fountain to custody and it did not release the bond.
On October 17, 2013, Fountain filed a “request to modify, correct or reform
this Court’s October 15, 2013 order dismissing the motion for rehearing filed by
relator, Tammy Fountain pursuant to the parties’ Rule 6.6 Agreement.” Fountain
reminded the Court that the motion to enforce the Rule 6.6 Agreement “included
the following [prayer]: ‘Therefore the parties ask that the Court treat Fountain’s
motion for rehearing as withdrawn and take no further action in this habeas
proceeding, but specifically including that this Court not enter an order remanding
Relator to custody, but release the bond.’” Fountain pointed out, “This Court’s
October 15, 2013 order does not address the agreement that the Relator not be
remanded to custody and that the bond be released.” Fountain requested that this
Court “correct, modify, or reform its October 15, 2013 Order to address these
issues.”
In response to Fountain’s motion to correct, modify, or reform the October
15, 2013 order, the majority issues an advisory opinion in the form of an order. It
10
advises the trial court, “In light of the parties’ agreement, the trial court may, in its
discretion, vacate its July 31, 2012 order, and it may order that the bond be
released.” The majority incorrectly informs the trial court that it has the discretion
to release a bond that had been ordered by this Court and fails to honor the parties’
Rule 6.6 Agreement and their Rule 11 Agreement.
I believe this Court—which granted abatement pursuant to the parties’
request that we abate the proceedings until their Rule 11 Agreement dismissing the
underlying enforcement action could be finalized in the trial court—erred in
reinstating the habeas proceeding sua sponte. I believe the Court’s actions have
interfered with the parties’ finalization of their settlement agreement—then, as
now, pending in the trial court—and have violated Rule 42.1, governing voluntary
dismissal of appeals in civil cases and providing for abatement to permit the trial
court to effectuate a settlement agreement. I believe we have further erred in only
partially granting the parties’ Rule 6.6 Agreement, leaving the rest pending, and
that we have compounded the error by issuing an advisory order to the trial court
advising it as to the actions it may take while the parties’ Rule 11 Agreement
remains pending in that court and by refusing to release the bond that had been
imposed by this Court—not by the trial court.
For the foregoing reasons, I dissent. I would not have lifted our abatement
of the habeas corpus proceedings while the parties were still attempting to finalize
11
their Rule 11 Agreement in the trial court. And once the parties asked that we
honor their Rule 6.6 Agreement, treat the motion for rehearing as withdrawn, and
release the bond, I would have done so.
Analysis
Rule 42.1(a) allows an appellate court to dispose of a proceeding by
voluntary dismissal in civil cases as follows:
(1) On Motion of Appellant. In accordance with a motion of
appellant, the court may dismiss the appeal or affirm the appealed
judgment or order unless disposition would prevent a party from
seeking relief to which it would otherwise be entitled.
(2) By Agreement. In accordance with an agreement signed by the
parties or their attorneys and filed with the clerk, the court may:
(A) render judgment effectuating the parties’ agreements;
(B) set aside the trial court’s judgment without regard to the merits
and remand the case to the trial court for rendition of judgment
in accordance with the agreements; or
(C) abate the appeal and permit proceedings in the trial court to
effectuate the agreement.
TEX. R. APP. P. 42.1(a).
Rule 42.1 further provides:
(c) Effect on Court’s Opinion. In dismissing a proceeding, the
appellate court will determine whether to withdraw any opinion it has
already issued. An agreement or motion of dismissal cannot be
conditioned on withdrawal of the opinion.
TEX. R. APP. P. 42.1(c).
12
Texas Rule of Civil Procedure 11 provides, in relevant part, that, unless
otherwise provided for in the rules, “no agreement between attorneys or parties
touching any suit pending will be enforced unless it be in writing, signed and filed
with the papers as part of the record.” TEX. R. CIV. P. 11. Rule 11 agreements are
effectively contracts relating to litigation. Golden Spread Elec. Coop., Inc. v.
Denver City Energy Assocs., Inc., 269 S.W.3d 183, 190 (Tex. App.—Amarillo
2008, pet. denied). Thus, they are interpreted in the same manner as contracts. Id.
When a settlement agreement satisfies the requirements of Rule 11—i.e., when it is
written, signed, and filed in the records of the court, or is made in open court, and
it has sufficiently definite terms to allow a court to determine the obligations of the
parties—it is enforceable. See Berg v. Wilson, 353 S.W.3d 166, 172 n.9 (Tex.
App.—Texarkana 2011, pet. denied). A settlement agreement must comply with
Rule 11 to be enforceable. Green v. Midland Mortg. Co., 342 S.W.3d 686, 690
(Tex. App.—Houston [14th Dist.] 2011, no pet.).
A trial court has a duty to enforce the terms of a Rule 11 agreement. Fortis
Benefits v. Cantu, 234 S.W.3d 642, 651 (Tex. 2007); see In re F.C. Holdings, Inc.,
349 S.W.3d 811, 815 (Tex. App.—Tyler 2011, orig. proceeding); Scott-Richter v.
Taffarello, 186 S.W.3d 182, 189 (Tex. App.—Fort Worth 2006, pet. denied) (“A
trial court has a ministerial duty to enforce a valid Rule 11 agreement.”).
13
A Rule 11 settlement agreement “touching upon” a suit in the Texas courts
may be made at any time before execution of judgment. See Coale v. Scott, 331
S.W.3d 829, 831 (Tex. App.—Amarillo 2011, no pet). The trial court may enforce
a Rule 11 agreement even if it was made even after the cause was tried and finally
resolved via judgment if the agreement is in writing, signed and filed with the
papers as part of the record, or made in open court and entered of record, as a trial
court has continuing power to enforce its judgments after they become final. See
id. at 831–32. This is the case because the agreement becomes a contract when it
is executed, not when the trial court attempts to enforce it. Id. at 832. “[T]he trial
court’s order is simply a judgment enforcing a binding contract.” Id.
Public policy favors settlement agreements. Elbaor v. Smith, 845 S.W.2d
240, 250 (Tex. 1992); Caballero v. Heart of Texas Pizza, L.L.C., 70 S.W.3d 180,
181 (Tex. App.—San Antonio 2001, no pet.) (per curiam). Hence, Rule 42.1(a) is
designed to facilitate the appellate courts’ power to dispose of cases that settle on
appeal in accordance with the intent of the parties. See Caballero, 70 S.W.3d at
181.
Here, the proceeding the parties had sought in their Rule 11 Agreement to be
dismissed was an original appellate proceeding seeking review of an incidental
order in a pending underlying suit seeking enforcement of temporary child-custody
orders. This Court had jurisdiction over the original proceeding, but the trial court
14
had, and still has, jurisdiction over the underlying enforcement proceeding, which
the parties represent that they have settled, conditioned only upon (1) the
performance of the terms of the agreement during the period between execution of
the Rule 11 agreement on December 12, 2012, and June 2013, and (2) a status
conference to have been held in the trial court in June 2013 to determine whether
the parties had satisfactorily performed terms of the Rule 11 Agreement during the
period prior to that time. This Court, therefore, properly abated the habeas
proceeding upon request of the parties to permit the trial court to conduct
proceedings to effectuate the terms of the settlement agreement. See TEX. R. APP.
P. 42.1(a)(2)(C).
There is no question that the settlement agreement was entered into to
resolve an ongoing custody dispute in the trial court in which no final order had
been issued. Thus, there is no question that the parties had the right to settle their
dispute and that both the trial court—and this Court—had then and have now a
ministerial duty to enforce the intent of the parties to that agreement. See Fortis
Benefits, 234 S.W.3d at 651. A Rule 11 settlement agreement “touching upon” a
suit in the Texas courts may be made at any time before execution of judgment.
See Coale, 331 S.W.3d at 831. Here, in December 2012, while the habeas
proceeding was pending in this Court, the parties settled the enforcement
proceeding subject to the parties’ performance under the terms of the agreement
15
until June 2013, and the parties so advised this Court. This Court was then plainly
required by Rule 42.1 to abate the habeas proceeding in this Court upon request of
the parties to permit proceedings in the trial court to effectuate the terms of their
settlement agreement. See TEX. R. APP. P. 42.1(a)(2)(C). And it initially did so.
One of the provisions in the parties’ Rule 11 Agreement was the agreement
to dismiss the habeas proceeding then pending in this Court. However, the parties
also agreed to comply with specified provisions of the agreement as a condition
precedent to the issuance of a final order by the trial court. The agreement,
therefore, provided that the trial court would hold a status conference in June 2013
to determine whether the parties had performed under the Rule 11 Agreement, and,
if they had, the agreement contemplated that the trial court would issue a final
order. The parties agreed that when the final order issued, they would move to
dismiss the habeas corpus proceeding in this Court as moot. The entry of a final
order by the trial court upon performance of the terms of the Rule 11 Agreement
prior to July 1 and the dismissal of the habeas corpus proceeding upon issuance of
the trial court’s final order were both made specific provisions of the Rule 11
Agreement. Dismissal of the habeas proceeding was clearly a material part of the
consideration for that agreement.
Under Rule 11, the trial court had, and it still has, a duty to enforce the
parties’ settlement agreement, and it has a ministerial duty to sign a final order
16
respecting the parties’ intentions as expressed in the agreement. See Fortis
Benefits, 234 S.W.3d at 651. The trial court’s final order is simply a judgment
enforcing a binding contract. See Coale, 331 S.W.3d at 832. Likewise, this Court
had a duty under Rule 42.1(a)(2)(C) to abate the habeas proceeding to permit the
trial court to effectuate the settlement agreement. See TEX. R. APP. P.
42.1(a)(2)(C); Caballero, 70 S.W.3d at 181.
No party complained to this Court that the trial court had failed to enforce
the Rule 11 Agreement according to its terms or to perform its ministerial duty of
executing a final order in accordance with those terms; and no party represented to
this Court that the Rule 11 Agreement had been set aside, so that its terms no
longer applied. To the contrary, Fountain represented to this Court that trial court
had not yet been asked to enter the final order referenced in paragraph 13 of the
Rule 11 Agreement and that this matter “is awaiting a judge/attorney conference.”
Fountain further represented, “This case should not be reinstated on the court’s
active docket as the agreement has not been entered, perfected, or set aside.”
Therefore, in my view, this Court’s decision to lift the abatement was without legal
justification.
In my view, this Court has failed to honor the requests of the parties that we
abate the proceedings pending settlement of their dispute; we have not honored the
terms of the parties’ Rule 11 and Rule 6.6 Agreements by treating the motion for
17
rehearing as withdrawn and releasing the bond; and we have issued an advisory
opinion regarding the trial court’s options. I would have continued to follow Rule
42.1(a)(2)(C), and I would have kept the abatement in place to permit proceedings
in the trial court to effectuate the parties’ Rule 11 Agreement. I would not have
lifted the order of abatement, and I would not now issue an order advising the trial
court of its options. The motion for rehearing having been dismissed, in
accordance with the parties’ Rule 6.6 Agreement entered after the abatement was
lifted and the habeas proceeding reinstated on our docket, I would amend the order
dismissing the motion for rehearing to accord with the parties’ Rule 6.6
Agreement, as requested by Fountain. I note that this Court’s October 15, 2013
order dismissing the motion for rehearing contains no order remanding Fountain to
custody, and I would not issue such an order.
18
Conclusion
I would treat Fountain’s motion for rehearing as withdrawn, and I would
release the bond.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Justice Keyes, dissenting.
19
ACCEPTED
221EFJ017831196
FIRST COURT OF APPEALS
HOUSTON, TEXAS
13 November 21 P4:14
Christopher A. Prine
CLERK
NO. 01-12-00704-CV
FILED IN
1st COURT OF APPEALS
IN RE TAMMY FOUNTAIN, § IN THE FIRST HOUSTON, TEXAS
Relator § 11/21/2013 4:14:05 PM
§ COURT OF APPEALS
CHRISTOPHER A. PRINE
§ Clerk
§ AT HOUSTON, TEXAS
RELATOR’S MOTION FOR EN BANC RECONSIDERATION
Relator, Tammy Fountain, asks the Court to grant this motion to reconsider
the case en banc.
A. INTRODUCTION
1. Relator is Tammy Fountain; Real Party in Interest is Kathy Katcher;
Respondent is Hon. Sheri Dean, 309th District Court of Harris County, Texas.
2. A panel of this Court issued an Order on October 15, 2013 in this case
that purported to effect a Rule 6.6 agreement of the parties. A copy of the October
15, 2013 order is attached as Exhibit A.
3. On October 17, 2013, Relator asked this Court to modify, correct, or
reform its October 15, 2013 order because it did not fully effect the Rule 6.6
agreement of the parties. Specifically, the order did not release the bond ordered by
this Court on August 3, 2012.
4. On November 7, 2013, in response to Relator’s request to correct this
Court’s October 15, 2013 order, Justice Massengale acting for the court issued an
1
order denying the request to correct the October 15, 2013 order and stating that the
trial court had discretion to release the bond issued by this Court. A copy of the
November 7, 2013 order is attached as Exhibit B. Justice Keyes issued a
“Memorandum Dissent from Order Dated November 7, 2013” on the same date. A
copy of Justice Keyes’s memorandum dissent is attached as Exhibit C.
B. ARGUMENT & AUTHORITIES
5. The Court has authority to grant this motion and submit the case to the
full court, sitting en banc. Tex. R. App. P. 41.2, 49.7.
6. The primary issue is whether this Court should issue an order that
fully effects that parties’ Rule 6.6 agreement by releasing the bond. The divided
panel resolved the issue by holding that the parties should ask the trial court to
vacate its July 31, 2012 order and ask the trial court to order the Harris County
Sheriff to release the bond that this Court ordered to be executed and filed with the
sheriff. The dissent notes that such an order advising the trial court of its options
amounts to an advisory opinion. As set out below, this Court’s decision also has
constitutional implications.
7. To resolve the new issues raised by the November 7, 2013 order,
Tammy Fountain asks the Court to reconsider the case en banc. See Tex. R. App.
P. 41.2(c), 49.7.
8. The issue in this case presents the following extraordinary
2
circumstances such that resolution of the issue by the Court en banc is necessary:
A. The November 7, 2013 order upsets the balance of power between
courts of appeals and trial courts in habeas corpus proceedings
On August 3, 2012, this Court ordered the Sheriff of Harris County to
discharge Relator from custody upon execution and filing of a $500 cash bond.
This action is authorized by Rule 52.8(b)(3), which provides in relevant part:
If the court is of the tentative opinion that relator is entitled to the
relief sought or that a serious question concerning he relief requires
further consideration … in a habeas corpus proceeding, the court may
order that relator be discharged on execution and filing of a bond in
an amount set by the court.
Tex R. App. P. 52.8(b)(3) (emphasis added).
Rule 52.8, titled “Action on Petition,” is specific to courts of appeals. A
bond under this rule is part of the extraordinary relief available to relators in
original proceedings. Tex. R. App. P. 52.1. Bonds set by the courts of appeals
under Rule 52 should be distinguished from bonds set by a trial court for
receiverships or for appeals. The purpose of Rule 52.8(b) is to relieve a relator of
the trial court’s actions. The trial court is the respondent in original proceedings.
Tex. R. App. P. 52.2. This Court now grants respondents in habeas corpus
proceedings the authority to override or supersede courts of appeals. This rule will
have disastrous consequences for relators seeking habeas corpus relief from the
actions of a respondent.
3
B. The failure to release the bond amounts to a denial of due process or
a tax or fee on habeas relief
This case has constitutional implications. This Court’s failure to release the bond
amounts to a denial of due process under both the United States Constitution and
the Texas Constitution. U.S. Const. amend. V, XIV; Tex. Const. art. I, § 19. In
effect, the denial to release the bond amounts to a revocation of the bond without
justification therefore. There is no authority for this Court to revoke the bond when
it dismisses a habeas corpus pursuant to an agreement of the parties. Alternatively,
it is a violation of the open courts provisions in the Texas Constitution because it
constitutes an impermissible and excessive fee or tax on habeas relief. Tex. Const.
art. I, § 13.
C. Courts of appeals must issue final, non-advisory opinions
Courts of appeals must issue final orders. Tex. R. App. P. 47.1. Contrary to
this rule, the November 7, 2013 order leaves open the issue of the bond and the
freedom of the relator. Moreover, courts of appeals have no authority to issue
advisory opinions. Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App.
1991) (en banc). This Court’s November 7, 2013 opinion improperly advises the
trial court of its options regarding the bond.
D. Courts of appeals had a ministerial duty to fully effect the parties’
agreements and/or abate to permit the trial court to effect the
agreements
The November 7, 2013 order violates Rule 6.6 of the Texas Rules of
4
Appellate Procedure and Rule 11 of the Texas Rules of Civil Procedure. This
Court properly abated the case to permit the trial court to effect the agreement,
pursuant to Tex. R. App. P. 42.1(a)(2)(C), but it improperly reinstated the case
before the trial court had done so. Once the parties agreed to dismiss the rehearing
challenging the denial of the habeas corpus request, this Court was required to
effect the entire agreement, including the agreement that the bond be released. Tex.
R. App. P. 6.6. It is not up to selectively effect the parties’ agreements. It must
either grant or deny the request to effect such agreements.
C. CONCLUSION
9. Tammy Fountain, Relator, requests that this court reconsider this case
en banc because the failure of the panel to release the bond (a) upsets the balance
of power between courts of appeals and trial courts in habeas corpus proceedings;
(b) results in an unconstitutional taking; (c) amounts to an advisory, non-final
opinion; and (d) violates Texas Rules of Appellate Procedure 6.6 and/or
42.1(a)(2)(C) and Texas Rule of Civil Procedure 11.
D. PRAYER
10. For these reasons, Tammy Fountain asks the Court to grant this
motion to reconsider en banc.
5
Respectfully submitted,
Law Office of Daniel J. Lemkuil
/s/ Daniel J. Lemkuil
Daniel J. Lemkuil
State Bar No. 00789448
1314 Texas Avenue, Suite 1515
Houston, Texas 77002
Telephone: (713) 993-9100
Facsimile:(713) 225-0099
daniel_lemkuil@flash.net
ATTORNEY FOR RELATOR
Certificate of Compliance
I certify that this document was produced on a computer using Microsoft
Word 2011 and contains 1117 words, as determined by the computer software’s
word-count function, excluding the sections of the document listed in Texas Rule
of Appellate Procedure 9.4(i)(1).
/s/ Daniel J. Lemkuil
Daniel J. Lemkuil, Attorney for Relator
Certificate of Service
I certify that a true copy of the above was served on each attorney of record
or party in accordance with the Texas Rules of Civil Procedure on November 21,
2013.
/s/ Daniel J. Lemkuil
Daniel J. Lemkuil, Attorney for Relator
6
court’s  temporary  orders  and  committing  her  to  jail.1 On December 28, 2012, this
Court issued an opinion   affirming   the   trial   court’s   revocation   order   over   my
dissent. Unknown to this Court, the parties had filed a Rule 11 Agreement in the
trial court on December 12, 2012. One of the provisions of the Rule 11 Agreement
was the agreement of real party in interest, Kathy Katcher, to drop the enforcement
proceeding once the trial court approved the settlement agreement. The trial
court’s  approval  was  contingent  on  the  parties’  performing  under  the  agreement  for
six months.
On January 2, 2013, Fountain filed a motion for rehearing, in which she
requested   withdrawal   of   this   Court’s   December   28,   2012   opinion.     At   Katcher’s
request,   this   Court   abated   proceedings   on   Fountain’s   motion   so   that   the   parties
could finalize their settlement agreement with regard to the enforcement
proceeding as set out in their Rule 11 Agreement. The trial court has repeatedly
moved back the date for a status conference, scheduled in the Rule 11 Agreement
for June 2013 and referenced in the Rule 11 Agreement as a condition precedent to
finalization of the Agreement. Therefore, the Agreement has not been finalized.
Nor has it been withdrawn.
1
The underlying case is Kathy Katcher v. Tammy Fountain, No. 2010-31997, in the
309th District Court of Harris County, Texas, the Honorable Sheri Y. Dean,
presiding.
2
Despite the still-pending settlement agreement, on September 24, 2013, this
Court, sua sponte, lifted its abatement of the habeas corpus proceeding and advised
the  parties  that  it  intended  to  deny  Fountain’s  motion  for  rehearing.
The parties responded by filing an agreement pursuant to Texas Rule of
Appellate   Procedure   6.6,   asking   this   Court   to   “treat   Fountain’s   motion   for
rehearing as withdrawn  and  take  no  further  action  in  this  habeas  proceeding,”  not
to enter an order remanding Fountain to custody, and to release a bond that this
Court had required pending resolution of the habeas corpus proceedings.
This Court issued an order on October 15, 2013, that dismissed the motion
for  rehearing  but  that  did  not  address  the  parties’  other  requests.
On  October  17,  2013,  Fountain  filed  a  “request  to  modify,  correct  or  reform
this   Court’s   October  15,  2013  order  dismissing  the   motion   for  rehearing   filed by
relator,  Tammy  Fountain  pursuant  to  the  parties’  Rule  6.6  Agreement.”
The panel majority now issues an advisory opinion in the form of an Order
advising   the   trial   court   that,   “[i]n   light   of   the   parties’   agreement,   the   trial   court
may, in its discretion, vacate its July 31, 2012 order, and it may order that the bond
be  released.”    The  order  itself  does  not  release  the  bond.
Because I believe that the panel majority lacks the power to advise the trial
court   regarding   the   exercise   of   the   trial   court’s powers and that the majority has
failed   to   honor   the   terms   of   the   parties’   Rule   11   and   Rule   6.6   Agreements,   has
3
overstepped its own jurisdiction in issuing an advisory opinion to the trial court,
and has failed to dispose of all issues before it that are necessary to the final
resolution of this dispute—namely, by failing to order release of the bond that this
Court had previously required—I dissent.
I   would   have   honored   the   terms   of   the   parties’   Rule   11   and   Rule   6.6
Agreements and the provisions of Texas Rule of Appellate Procedure
42.1(a)(2)(C), governing voluntary dismissal of civil cases by agreement of the
parties, pursuant to which we abated the habeas proceedings in this Court. I would
not have lifted our order of abatement, and I would not now issue an order advising
the trial court of its options. Because the abatement was nevertheless lifted and the
motion   for   rehearing   of   this   Court’s   December   28,   2012   opinion   was   dismissed
pursuant  to  the  parties’  Rule  6.6  Agreement,  I  would  treat  the  motion  for rehearing
as  withdrawn  and  I  would  release  the  bond.    I  note  that  this  Court’s  October  15,
2013 order dismissing the motion for rehearing contains no order remanding
Fountain to custody.
Background
Fountain filed this original habeas corpus proceeding to challenge the trial
court’s  July  31,  2012  order  revoking  its  earlier  suspension  of  a  contempt  sentence
it had imposed on her in the underlying enforcement proceeding for violation of
temporary orders entered in a child custody dispute.
4
On August 3, 2012, in   response   to   Fountain’s   request,   this   Court   issued   a
memorandum order ordering the Sheriff of Harris County to discharge Fountain
from custody upon execution and filing of a $500 bond with the Sheriff.
On December 28, 2012, the majority issued an opinion upholding the trial
court’s  revocation  of  its  order  suspending  commitment.    I  dissented.    I  agreed  with
Fountain that the commitment order was void and that her commitment to jail
violated her constitutional right to due process of law. I would have granted the
habeas corpus petition, and I would have ordered Fountain discharged.
On  January  2,  2013,  five  days  after  issuance  of  this  Court’s  opinions  in  the
underlying habeas proceeding, Fountain filed a motion for rehearing that, inter alia,
informed the Court  that  “the  parties  agreed  by  Rule  11  to  the  requested  relief  prior
to   the   issuance   of   this   Court’s   opinion.”     Fountain   stated   that,   specifically,   the
parties agreed to dismiss the underlying enforcement proceeding and Katcher
agreed to notify this Court that she does not oppose the habeas proceeding. The
motion  also  stated,  “The  temporary  orders  that  are  the  subject  of  the  December  12,
2012  Rule  11  Agreement  are   set  for  entry  on  January  3,  2013  in  the  trial  court.”
Fountain   asked   that   this   Court   “grant this motion for rehearing, withdraw its
opinion, and issue a writ of habeas corpus as unopposed on the basis of the
expressed  dissent.”
5
On  January  15,  2013,  Katcher  responded  to  Fountain’s  motion  for  rehearing.
A copy of the signed agreement, file stamped December 12, 2012, by the district
clerk,  was  attached.      Katcher  stated,  “On  December  12,  2012,  trial  counsel  for  the
parties met and negotiated a preliminary settlement agreement of their underlying
enforcement  dispute.”    She  further  stated,  “The  intent of the parties as reflected in
the agreement was that they would perform under the agreement for a 6-month
period—until June 2013—at which time they would attend a status conference in
the  trial  court  to  obtain  a  final  order.”    Katcher  stated  that  she  agreed to drop the
enforcement   proceeding,   but   that   the   “expressed   intent”   of   the   agreement   in
paragraph   14   “was   that   the   enforcement   agreement   would   not   be   dismissed   until
June 2013, and that her duty to inform this Court of the preliminary agreement did
not arise until after June 2013—after a status conference and after the agreement
became  final.”
Katcher requested that this Court abate the habeas proceeding until July 1,
2013. She explained,
The abatement will permit the parties to perform under the agreement,
and will allow the trial court to conduct a status conference in June
2013 and enter a final order if the parties have performed under the
agreement. Then, if the agreement is performed, [Katcher] will
dismiss the underlying enforcement proceeding and—per paragraph
14 of the agreement—notify the Court that the habeas proceeding has
been rendered moot.
6
In   a   “Supplement   to   Motion   for   Rehearing,”   filed   January   4,   2013,   Fountain
conceded  that  “a  reading  of  the  Rule  11  Agreement  may  also  support  the  position
that such a duty to inform this Court of the agreement will not arise until after June
2013.”
This   Court   issued   an   order   abating   proceedings   on   Fountain’s   motion   for
rehearing  until  July  1,  2013.    The  order  required  that  the  parties  “timely  notify  this
court of all events affecting the status of this case, including when the trial court
has  entered  a  final  order”  and  that  they   “file  either  a  status  report  or  a  motion  to
dismiss by July 1, 2013.”
On July 1, 2013, Katcher filed a status report informing this Court that the
trial court had set the status conference required by the Rule 11 Agreement, which
had been requested for June, for July 2, 2013, and, therefore, there was no final
order of the trial court in the underlying enforcement proceeding.
The next day, July 2, the authoring judge of the December 28, 2012 opinion,
acting  individually,  issued  an  order  requiring  the  parties  to  “file  an  updated  status
report or a motion to dismiss within 3 days of any further status conference held in
the trial court.”     The   order   also   required   the   parties   to   satisfy   a   number   of   other
conditions.     It   required   the   parties   to   “inform   this   court   no   later   than   August 9,
2013”  whether  the  trial  court  had  been  requested  to  enter  a  final  order  and  “if  not,
why   not.”     It  required that this Court be told whether Katcher had dismissed her
7
enforcement   petition   with   prejudice;;   “[w]hether   this   original   proceeding   has
become  moot  for  any  reason”;;  and  “[w]hether  there  is  any  reason  why  this  original
proceeding should not be reinstated  on  the  court’s  active  docket.”    The  order  also
stated,  “To  the  extent  this  original  proceeding  is  not  moot,  Katcher  is  requested  to
provide the court of appeals with any revised or supplemental response to the
motion for rehearing no later than August 9, 2013.”
On August 9, 2013, Katcher filed a status report in response to the July 2,
2013 order. She reported that a status conference had been held on July 2, 2013,
and that the trial judge ordered temporary custody of the minor child to Katcher
and ordered a psychological evaluation of Fountain. The report stated that no
further   action   would   be   taken   in   the   trial   court   until   there   was   “at   least   a
preliminary   report”   from   the   physician   performing   the   psychological   evaluation.
The status report further stated that the preliminary report was to have been
performed by August 14, but that the physician had stated he could not meet that
deadline, so the status conference in the trial court, which had been recessed until
August 14, 2013, was likely to be recessed again.
On August 21, 2013, Fountain likewise filed a status report. She reported
that   the   parties   were   “to   confer   with   the   trial   court   regarding   disposition   of   the
underlying  enforcement  action,”  but  that  “[t]his  event  has  not  been  formally  set.”
She  stated,  “This  case  should  not  be  reinstated  on  the  court’s  active  docket  as  the
8
agreement has not been entered, perfected, or set aside. The parties are awaiting
the  pleasure  of  the  [trial]  Court,  who  is  addressing  the  best  interests  of  the  child’s
issues  at  this  point.”
On September 24, 2013, this Court lifted the abatement and directed that the
parties  file  any  further  submissions  relating  to  Fountain’s  motion  for  rehearing  by
October 1, 2013.
On   September   27,   2013,   in   response   to   this   Court’s   September 24, 2013
order, the parties submitted an agreement pursuant to Rule 6.6 together with a
“Motion   to   Enforce   Parties’   Rule   6.6   Agreement.”     See TEX. R. APP. P. 6.6
(providing that parties or their counsel may file enforceable agreement in appellate
court if agreement is in writing and signed by parties or their counsel). The Rule
6.6 Agreement provided:
Fountain agrees to withdraw and hereby withdraws her motion
for rehearing; and
Katcher   agrees   not   to   seek   enforcement   of   the   trial   court’s
contempt order of May 24, 2012, or the revocation order of July
31, 2012.
The parties further agreed, that, as a consequence of their having filed the Rule 6.6
Agreement   in   the   trial   court,   the   agreement   also   “constitutes   an   enforceable
agreement under TEX. R. CIV. P. 11.”     The   parties   asked   that   this   “Court   treat
Fountain’s   motion for rehearing as withdrawn and take no further action in this
9
habeas proceeding, but specifically including that this Court not enter an order
remanding  Relator  to  custody,  but  release  the  bond.”
On October 15, 2013, this Court issued an order that granted   Katcher’s
“Motion  to  Enforce  Parties’  Rule  6.6  Agreement”  and  dismissed  Fountain’s  motion
for   rehearing   “pursuant   to   the   parties’   Rule   6.6   agreement.”   The   Court   did   not
remand Fountain to custody and it did not release the bond.
On October 17, 2013,  Fountain  filed  a  “request  to  modify,  correct  or  reform
this   Court’s   October  15,  2013  order  dismissing  the   motion   for  rehearing   filed  by
relator,  Tammy  Fountain  pursuant  to  the  parties’  Rule  6.6  Agreement.”    Fountain
reminded the Court that the motion to enforce  the  Rule  6.6  Agreement  “included
the   following   [prayer]:     ‘Therefore  the  parties   ask   that  the   Court   treat   Fountain’s
motion for rehearing as withdrawn and take no further action in this habeas
proceeding, but specifically including that this Court not enter an order remanding
Relator   to   custody,   but   release   the   bond.’”     Fountain   pointed   out,   “This   Court’s
October 15, 2013 order does not address the agreement that the Relator not be
remanded  to  custody  and  that  the  bond  be  released.”    Fountain  requested that this
Court   “correct,   modify,   or   reform   its   October   15,   2013   Order   to   address   these
issues.”
In  response  to  Fountain’s  motion  to  correct,  modify,  or  reform  the  October
15, 2013 order, the majority issues an advisory opinion in the form of an order. It
10
advises  the  trial  court,  “In  light  of  the  parties’  agreement,  the  trial  court  may,  in  its
discretion, vacate its July 31, 2012 order, and it may order that the bond be
released.”    The  majority  incorrectly  informs  the  trial  court  that  it  has  the  discretion
to  release  a  bond  that  had  been  ordered  by  this  Court  and  fails  to  honor  the  parties’
Rule 6.6 Agreement and their Rule 11 Agreement.
I believe this Court—which   granted   abatement   pursuant   to   the   parties’
request that we abate the proceedings until their Rule 11 Agreement dismissing the
underlying enforcement action could be finalized in the trial court—erred in
reinstating   the   habeas   proceeding   sua   sponte.     I   believe   the   Court’s   actions   have
interfered   with   the   parties’   finalization   of   their   settlement agreement—then, as
now, pending in the trial court—and have violated Rule 42.1, governing voluntary
dismissal of appeals in civil cases and providing for abatement to permit the trial
court to effectuate a settlement agreement. I believe we have further erred in only
partially   granting   the   parties’   Rule   6.6   Agreement,   leaving   the   rest   pending,   and
that we have compounded the error by issuing an advisory order to the trial court
advising   it   as   to   the   actions   it   may   take   while   the   parties’   Rule   11   Agreement
remains pending in that court and by refusing to release the bond that had been
imposed by this Court—not by the trial court.
For the foregoing reasons, I dissent. I would not have lifted our abatement
of the habeas corpus proceedings while the parties were still attempting to finalize
11
their Rule 11 Agreement in the trial court. And once the parties asked that we
honor their Rule 6.6 Agreement, treat the motion for rehearing as withdrawn, and
release the bond, I would have done so.
Analysis
Rule 42.1(a) allows an appellate court to dispose of a proceeding by
voluntary dismissal in civil cases as follows:
(1) On Motion of Appellant. In accordance with a motion of
appellant, the court may dismiss the appeal or affirm the appealed
judgment or order unless disposition would prevent a party from
seeking relief to which it would otherwise be entitled.
(2) By Agreement. In accordance with an agreement signed by the
parties or their attorneys and filed with the clerk, the court may:
(A) render  judgment  effectuating  the  parties’  agreements;;
(B) set  aside  the  trial  court’s  judgment  without  regard  to  the  merits
and remand the case to the trial court for rendition of judgment
in accordance with the agreements; or
(C) abate the appeal and permit proceedings in the trial court to
effectuate the agreement.
TEX. R. APP. P. 42.1(a).
Rule 42.1 further provides:
(c) Effect   on   Court’s   Opinion. In dismissing a proceeding, the
appellate court will determine whether to withdraw any opinion it has
already issued. An agreement or motion of dismissal cannot be
conditioned on withdrawal of the opinion.
TEX. R. APP. P. 42.1(c).
12
Texas Rule of Civil Procedure 11 provides, in relevant part, that, unless
otherwise   provided   for   in   the   rules,   “no   agreement   between   attorneys   or   parties
touching any suit pending will be enforced unless it be in writing, signed and filed
with the papers as  part  of  the  record.”    TEX. R. CIV. P. 11. Rule 11 agreements are
effectively contracts relating to litigation. Golden Spread Elec. Coop., Inc. v.
Denver City Energy Assocs., Inc., 269 S.W.3d 183, 190 (Tex. App.—Amarillo
2008, pet. denied). Thus, they are interpreted in the same manner as contracts. Id.
When a settlement agreement satisfies the requirements of Rule 11—i.e., when it is
written, signed, and filed in the records of the court, or is made in open court, and
it has sufficiently definite terms to allow a court to determine the obligations of the
parties—it is enforceable. See Berg v. Wilson, 353 S.W.3d 166, 172 n.9 (Tex.
App.—Texarkana 2011, pet. denied). A settlement agreement must comply with
Rule 11 to be enforceable. Green v. Midland Mortg. Co., 342 S.W.3d 686, 690
(Tex. App.—Houston [14th Dist.] 2011, no pet.).
A trial court has a duty to enforce the terms of a Rule 11 agreement. Fortis
Benefits v. Cantu, 234 S.W.3d 642, 651 (Tex. 2007); see In re F.C. Holdings, Inc.,
349 S.W.3d 811, 815 (Tex. App.—Tyler 2011, orig. proceeding); Scott-Richter v.
Taffarello, 186 S.W.3d 182, 189 (Tex. App.—Fort  Worth  2006,  pet.  denied)  (“A
trial  court  has  a  ministerial  duty  to  enforce  a  valid  Rule  11  agreement.”).
13
A  Rule  11  settlement  agreement  “touching  upon”  a  suit  in  the  Texas  courts
may be made at any time before execution of judgment. See Coale v. Scott, 331
S.W.3d 829, 831 (Tex. App.—Amarillo 2011, no pet). The trial court may enforce
a Rule 11 agreement even if it was made even after the cause was tried and finally
resolved via judgment if the agreement is in writing, signed and filed with the
papers as part of the record, or made in open court and entered of record, as a trial
court has continuing power to enforce its judgments after they become final. See
id. at 831–32. This is the case because the agreement becomes a contract when it
is executed, not when the trial court attempts to enforce it. Id.  at  832.    “[T]he  trial
court’s  order  is  simply  a  judgment  enforcing  a  binding  contract.”    Id.
Public policy favors settlement agreements. Elbaor v. Smith, 845 S.W.2d
240, 250 (Tex. 1992); Caballero v. Heart of Texas Pizza, L.L.C., 70 S.W.3d 180,
181 (Tex. App.—San Antonio 2001, no pet.) (per curiam). Hence, Rule 42.1(a) is
designed to facilitate the  appellate  courts’  power  to  dispose  of  cases  that  settle  on
appeal in accordance with the intent of the parties. See Caballero, 70 S.W.3d at
181.
Here, the proceeding the parties had sought in their Rule 11 Agreement to be
dismissed was an original appellate proceeding seeking review of an incidental
order in a pending underlying suit seeking enforcement of temporary child-custody
orders. This Court had jurisdiction over the original proceeding, but the trial court
14
had, and still has, jurisdiction over the underlying enforcement proceeding, which
the parties represent that they have settled, conditioned only upon (1) the
performance of the terms of the agreement during the period between execution of
the Rule 11 agreement on December 12, 2012, and June 2013, and (2) a status
conference to have been held in the trial court in June 2013 to determine whether
the parties had satisfactorily performed terms of the Rule 11 Agreement during the
period prior to that time. This Court, therefore, properly abated the habeas
proceeding upon request of the parties to permit the trial court to conduct
proceedings to effectuate the terms of the settlement agreement. See TEX. R. APP.
P. 42.1(a)(2)(C).
There is no question that the settlement agreement was entered into to
resolve an ongoing custody dispute in the trial court in which no final order had
been issued. Thus, there is no question that the parties had the right to settle their
dispute and that both the trial court—and this Court—had then and have now a
ministerial duty to enforce the intent of the parties to that agreement. See Fortis
Benefits,  234  S.W.3d  at  651.    A  Rule  11  settlement  agreement  “touching  upon”  a
suit in the Texas courts may be made at any time before execution of judgment.
See Coale, 331 S.W.3d at 831. Here, in December 2012, while the habeas
proceeding was pending in this Court, the parties settled the enforcement
proceeding   subject   to   the   parties’   performance   under   the   terms   of   the   agreement
15
until June 2013, and the parties so advised this Court. This Court was then plainly
required by Rule 42.1 to abate the habeas proceeding in this Court upon request of
the parties to permit proceedings in the trial court to effectuate the terms of their
settlement agreement. See TEX. R. APP. P. 42.1(a)(2)(C). And it initially did so.
One  of  the  provisions  in  the  parties’  Rule  11  Agreement  was  the  agreement
to dismiss the habeas proceeding then pending in this Court. However, the parties
also agreed to comply with specified provisions of the agreement as a condition
precedent to the issuance of a final order by the trial court. The agreement,
therefore, provided that the trial court would hold a status conference in June 2013
to determine whether the parties had performed under the Rule 11 Agreement, and,
if they had, the agreement contemplated that the trial court would issue a final
order. The parties agreed that when the final order issued, they would move to
dismiss the habeas corpus proceeding in this Court as moot. The entry of a final
order by the trial court upon performance of the terms of the Rule 11 Agreement
prior to July 1 and the dismissal of the habeas corpus proceeding upon issuance of
the   trial   court’s   final   order   were   both   made   specific   provisions   of   the   Rule   11
Agreement. Dismissal of the habeas proceeding was clearly a material part of the
consideration for that agreement.
Under Rule 11, the trial court had, and it still has, a duty to enforce the
parties’   settlement   agreement,   and   it   has   a   ministerial   duty   to   sign   a   final   order
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respecting   the   parties’   intentions   as   expressed   in   the   agreement.     See Fortis
Benefits,   234   S.W.3d   at   651.     The   trial   court’s   final   order   is   simply   a   judgment
enforcing a binding contract. See Coale, 331 S.W.3d at 832. Likewise, this Court
had a duty under Rule 42.1(a)(2)(C) to abate the habeas proceeding to permit the
trial court to effectuate the settlement agreement. See TEX. R. APP. P.
42.1(a)(2)(C); Caballero, 70 S.W.3d at 181.
No party complained to this Court that the trial court had failed to enforce
the Rule 11 Agreement according to its terms or to perform its ministerial duty of
executing a final order in accordance with those terms; and no party represented to
this Court that the Rule 11 Agreement had been set aside, so that its terms no
longer applied. To the contrary, Fountain represented to this Court that trial court
had not yet been asked to enter the final order referenced in paragraph 13 of the
Rule  11  Agreement  and  that  this  matter  “is  awaiting  a  judge/attorney  conference.”
Fountain   further   represented,   “This   case   should   not   be   reinstated   on   the   court’s
active   docket   as   the   agreement   has   not   been   entered,   perfected,   or   set   aside.”
Therefore,  in  my  view,  this  Court’s  decision  to  lift  the  abatement  was  without  legal
justification.
In my view, this Court has failed to honor the requests of the parties that we
abate the proceedings pending settlement of their dispute; we have not honored the
terms  of  the  parties’  Rule  11  and  Rule  6.6  Agreements  by  treating  the  motion  for
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rehearing as withdrawn and releasing the bond; and we have issued an advisory
opinion  regarding  the  trial  court’s  options.    I  would  have  continued  to  follow  Rule
42.1(a)(2)(C), and I would have kept the abatement in place to permit proceedings
in the trial court to effectuate  the  parties’  Rule  11  Agreement.    I  would  not  have
lifted the order of abatement, and I would not now issue an order advising the trial
court of its options. The motion for rehearing having been dismissed, in
accordance  with  the  parties’  Rule  6.6  Agreement entered after the abatement was
lifted and the habeas proceeding reinstated on our docket, I would amend the order
dismissing   the   motion   for   rehearing   to   accord   with   the   parties’   Rule   6.6
Agreement, as requested by Fountain. I note that this Court’s   October   15,   2013
order dismissing the motion for rehearing contains no order remanding Fountain to
custody, and I would not issue such an order.
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Conclusion
I   would   treat   Fountain’s   motion   for   rehearing   as   withdrawn,   and   I   would
release the bond.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Massengale, and Brown.
Justice Keyes, dissenting.
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