in Re: Ann Ruth Hosey ( 2000 )

NUMBER 13-00-588-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

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IN RE: ANN RUTH HOSEY

, Relator,

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On Petition for Writ of Habeas Corpus.

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O R D E R

Before Chief Justice Seerden and Justices Dorsey and Rodriguez

Order by Chief Justice Seerden

This is an original habeas corpus proceeding brought by relator Ann Ruth Hosey. The trial court held Hosey in contempt for failing to remit proceeds from a certificate of deposit to her ex-husband as part of a divorce settlement. The trial court thus ordered that Hosey be assessed a fine of $500, and that Hosey "be confined in the county jail of Aransas County, Texas, for a period of six (6) months and until Respondent delivers the sum of $68,533.44 to Ernest Irving Hosey." Hosey contends that the order is void, that it was issued without due process, and that it violated the principles of double jeopardy. We agree with Hosey that the contempt order was issued without due process, and thus grant habeas corpus relief.

In a case involving conduct outside the presence of the court, due process requires that the alleged contemnor receive full and unambiguous notification of the accusation of any contempt. This notice should be by show cause order or equivalent legal process personally served on the alleged contemnor, and it should state when, how and by what means the defendant has been guilty of contempt. See Ex Parte Vetterick, 744 S.W.2d 598, 599 (Tex. 1988); Ex Parte Gordon, 584 S.W.2d 686 (Tex. 1979); Ex Parte Edgerly, 441 S.W.2d 514, 516 (Tex. 1969).

Once a court determines that actions constitute constructive contempt, there is no question concerning whether the supposed contemnor must be provided with notice and a hearing; she must be afforded both. See Ex Parte Knable, 818 S.W.2d 811, 812 (Tex. Crim. App. 1991); Ex Parte Avila, 659 S.W.2d 443, 444 (Tex. Crim. App. 1988). Furthermore, in order to be given an effective hearing, the accused must be given the opportunity to present evidence concerning any defenses she may have or the accused must knowingly waive that right. Ex Parte Woodyard, 952 S.W.2d 104, 107 (Tex.App.--San Antonio 1997, orig. proceeding); Ex Parte Carlile, 783 S.W.2d 672, 673 (Tex.App.--Houston [14^th Dist.] 1989, orig. proceeding).

Hosey was not given the requisite notice of the contempt charges against her and was not afforded an opportunity to be heard regarding these charges. Therefore, we conclude that Hosey was deprived of her due process rights in the contempt proceeding and is entitled to habeas relief.

Relator, Ann Ruth Hosey, is ordered discharged from custody.

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ROBERT J. SEERDEN, Chief Justice

Do not publish

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Tex. R. App. P. 47.3.

Order delivered and filed this

5th day of October, 2000.