in Re: Reuben Lopez ( 2002 )

In The

Court of Appeals

For The

  First District of Texas

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NO. 01-02-00194-CV

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IN RE RUBEN LOPEZ, III, Relator

Original Proceeding on Petition for Writ of Habeas Corpus

O P I N I O N  

Relator Ruben Lopez, III, asserts he is illegally restrained, and requests habeas corpus relief. We ordered him released on bond pending our final determination of his petition. Real party in interest Jennifer Simmons has not responded to relator's petition.

Relator and real party in interest were divorced on October 21, 1996. On April 27, 2001, the trial court signed an Agreed Order to Modify Temporary Orders. It provided that on the first and fifth Friday of each month, if the children were involved in any extracurricular activities, Simmons would pick them up at the completion of such activity. The agreed order also ordered relator to provide Simmons with a:

current schedule, including all dates, times and locations of all extracurricular activities in which the children participate as soon as the information becomes available to him. RUBEN LOPEZ, III is also to provide JENNIFER HAY SIMMONS with the names and phone numbers of all persons, sponsors and/or coaches who are in charge of each such extracurricular activity as soon as the information becomes available to him.

In Simmons's second amended motion for enforcement, she alleged:

Violation 1. On or about April 21, 2001, FRED E. WILSON, attorney of record for JENNIFER HAY SIMMONS received a 'schedule' of the extracurricular activities of the children the subject of this suit which gave the date and time of such alleged extracurricular activitities; however, RUBEN LOPEZ, III failed and/or refused to provide the location of these extracurricular activities, the names and phone numbers of all persons, sponsors and/or coaches who are in charge of each such extracurricular activities as are required by the orders of the Court and previously described herein and continues to refuse to provide this Court Ordered information as of the time of filing of this Motion for Enforcement and Order to Appear.

At the November 15, 2001 hearing on the motion to enforce, Simmons testified that relator had provided her with a list that did not comply with the court's order in that it did not have the coaches' names or numbers and gave the start times for activities, but not the ending times. She also testified that the schedule only went through June 3, 2001, and that although she had requested a schedule since that time, containing the necessary information, she had not received one. Simmons testified that she had not had visitation with her children since July 4, 2001. Relator testified that he provided Simmons with a list containing all the beginning and ending times of all the extracurricular activities when the ending times were known. The trial court found:

RUBEN LOPEZ, III failed and refused to provide JENNIFER HAY SIMMONS with a current schedule with dates, times and locations of all extracurricular activities in which the children participated after the rendition of the Agreed Order to Modify Temporary Orders which was rendered in open court on or about March 29, 2001, as well as the names and phone numbers of all persons, sponsors, and/or coaches who were in charge of each such extracurricular activity as required by orders of the Court as soon as the information became available to him and continued to refuse to provide this Court ordered information as of the time of filing of Movant's Motion for Enforcement.

As punishment for relator's violation of its April 27, 2001 order, the trial court, in its contempt order of November 29, 2001, ordered that relator pay a fine of $500 by January 15, 2002, and present himself to the sheriff on January 25, 2002 for 10 days of confinement. The court further ordered that upon completion of the confinement, that relator commence community supervision for a period of five years. Additionally, the court ordered that relator pay $1,560 in attorney's fees to Simmons's attorney by January 15, 2002, and within 10 days of November 29, 2001, that he obtain a $5,000 cash or security bond payable to Simmons conditioned on relator's compliance with all orders of the court for enforcement and/or permitting possession of or access to the children.

In his first ground for relief, relator asserts that the underlying order, signed April 27, 2001, is not specific enough to be enforced by contempt.

The sole fact that an order sought to be enforced is an agreed one does not mean it is enforceable by contempt. See, e.g. Rovner v. Rovner, 778 S.W.2d 905, 906, 909 (Tex. App.--Dallas 1989, writ denied). The test of certainty required of an order to be enforceable by contempt is whether it spells out the details of compliance in clear, specific, and unambiguous terms so that the person affected by the order will readily know what obligations are imposed on him. Id. at 907. Here, parts of the agreed order are not clear, specific, and unambiguous. The part which requires relator to provide the "times" of the children's extracurricular activities is not clear because it does not specify whether "times" means that starting times or that starting and ending times are to be provided. The part of the order that orders relator to provide the information "as soon as the information becomes available to him," does not specify a specific date on which the information is to be provided to Simmons or a quantifiable time from relator's receipt of the information until his transmission of that information to Simmons. In In re Johnson, 996 S.W.2d 430 (Tex. App.--Beaumont 1999, orig. proceeding), the Beaumont Court of Appeals held that an order for the Beaumont Police Department to produce certain documents, without specifying a specific time for the delivery, was too vague to be enforceable by contempt. See id. at 432, 435. Similarly, because the April 27, 2001 order in this case does not contain language specific enough for relator to know precisely at what point he would be delinquent in delivering the information, it is not specific enough to be enforceable by contempt.

Therefore, we sustain relator's first ground for relief.

We hold that the April 27, 2001 agreed order to modify temporary order is not specific enough to be enforced by contempt. It follows that the November 29, 2001 contempt order that was based on the April 27, 2001 order is void. Because of our disposition of the first ground of error, it is unnecessary to address relator's other grounds for relief.

We order relator released from all restraint, including the $500 bond we ordered posted pending our determination of this petition for habeas corpus relief.

Adele Hedges

Justice

Panel consists of Justices Mirabal, Hedges, and Jennings.

Do not publish. Tex. R. App. P. 47.