Ex Parte Dennis Raul Dorado ( 2013 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00451-CV
EX PARTE Dennis Raul DORADO
Original Habeas Corpus Proceeding 1
PER CURIAM
Sitting: Catherine Stone, Chief Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Delivered and Filed: August 14, 2013
PETITION FOR WRIT OF HABEAS CORPUS DENIED
On July 17, 2013, relator, Dennis Raul Dorado, filed an original habeas corpus proceeding
contending he is being illegally confined after the trial court found him in contempt for failure to
pay previously ordered child support and ordered him confined for 180 days. Specifically, Dorado
asserts: (1) the trial court failed to inform him of his right to counsel under the Texas Family Code;
(2) the trial court failed to make a determination of his ability to purge himself of the child support
obligation; and (3) Sheriff Susan Pamerleau has failed to give him “good time” credit in violation
of his right to equal protection under the law. See TEX. FAM. CODE ANN. §§ 157.008, 157.163
(West 2008).
1
This proceeding arises out of Cause No. 2006EM502075, styled In the Interest of D.R.D., Jr., et al. Children, pending
in the 166th Judicial District Court, Bexar County, Texas, the Honorable Jim Rausch presiding.
04-13-00451-CV
This court received from the trial court clerk a copy of the trial court’s Order on
Appointment of Counsel and Setting Cause for Trial. The order, which was signed by Dorado,
indicates that a hearing was conducted on June 18, 2013 and reflects the trial court’s finding that
Dorado “is not indigent and not entitled to the appointment of an attorney.”
A relator is entitled to habeas corpus relief if he establishes he was deprived of liberty
without due process of law, or if we conclude the judgment ordering confinement is void. See In
re Henry, 154 S.W.3d 594, 596 (Tex. 2005); In re Alexander, 243 S.W.3d 822, 824 (Tex. App.—
San Antonio 2007, orig. proceeding). The purpose of a habeas corpus proceeding is not to
determine the relator’s guilt or innocence, but to ascertain if the relator has been unlawfully
confined. Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979); Alexander, 243 S.W.3d at 827.
In family law enforcement proceedings, the Family Code requires the trial court to
determine whether the proceeding is one in which incarceration may result and, if so, the court is
obligated to inform a respondent of the right to counsel and, if indigent, the right to an appointed
attorney. See TEX. FAM. CODE ANN. § 157.163 (a), (b). In the present case, Dorado’s signature
appears on the Order on Appointment of Counsel. The Order provides, “this is a proceeding in
which incarceration of the Respondent may result” and reflects the trial court’s finding that Dorado
“is not indigent and not entitled to the appointment of an attorney.” We conclude the trial court
properly admonished Dorado of his right to counsel in accordance with the Family Code. See TEX.
FAM. CODE ANN. § 157.163.
Dorado also complains the trial court failed to make a determination of his ability to purge
himself of the child support obligation. The Family Code provides that an obligor may plead as an
affirmative defense to an allegation of contempt that he lacked the ability and resources to provide
support in the amount ordered. See TEX. FAM. CODE ANN. § 157.008 (c). However, it is Dorado’s
burden in the trial court to conclusively establish the affirmative defense. See Ex parte Rojo, 925
-2-
04-13-00451-CV
S.W.2d 654, 656 (Tex. 1996). It is also his burden as relator in this proceeding to provide this court
with a record sufficient to establish his right to habeas corpus relief. See TEX. R. APP. P. 52.7(a);
Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding). Dorado has failed to
provide this court with a record supporting his claim that he is entitled to habeas corpus relief on
the basis that he met his burden of conclusively establishing an affirmative defense in the trial
court.
Finally, Dorado contends he is being denied equal protection under the law by the denial
of “good time” credits on his sentence when such credits are available to prisoners serving
sentences on criminal charges. While article 42.032 of the Texas Code of Criminal Procedure gives
the sheriff discretion to award “good time” credit to those being punished by criminal contempt
orders, the statute does not apply to those being punished by coercive civil contempt orders. See
TEX. CODE CRIM. PROC. ANN. art. 42.032 § 2 (West Supp. 2012); Ex parte Acly, 711 S.W.2d 627,
628 (Tex. Crim. App. 1986). Without an adequate record, we cannot determine if relator was
sentenced to only criminal contempt or if he is also being held under a coercive civil contempt
order. Dorado would not be entitled to consideration for “good time” credit under the statute for
the criminal contempt portion of the order until he has satisfied the coercive contempt portion of
the order. See Acly, 711 S.W.2d at 628. Without an order that clearly shows the contempt at issue
in this case, we are unable to say that there was an abuse of discretion in the failure to award “good
time” credits in this instance. TEX. R. APP. P. 52.7(a); Walker, 827 S.W.2d at 837. Dorado has not
established that he is entitled to habeas corpus relief on this ground. See TEX. CODE CRIM. PROC.
ANN. art. 42.032 § 2; Acly, 711 S.W.2d at 628.
Relator’s petition for writ of habeas corpus is denied.
PER CURIAM
-3-