Ex parte Waldrep

OPINION

DAVIS, Chief Justice.

At a hearing on the afternoon of August 19, 1996 the trial court orally ordered Kimberly Waldrep to deliver a 1985 GMC pickup truck to her estranged husband Leroy Wal-drep at his work place in Hearne by 5:00 p.m. that day. Rather than surrendering the vehicle, she inflicted some $5,000 worth of damage to it. The court held her in contempt and ordered her confined in the Robertson county jail for forty-five days, but provided that she could purge herself of the contempt by paying $5,500 for the damages, court costs and attorney’s fees by October 1, or $5,555 thereafter. Waldrep claims that her confinement is illegal because she has been held in constructive contempt for violating an oral order. She is correct under the plain language of the controlling Texas Supreme Court case law and, so, we grant her petition and order her released.

Kimberly and Leroy are in the process of divorcing. The court convened on August 19 to hear the parties’ motions for temporary orders. During the hearing, Leroy testified that Kimberly had taken a 1985 GMC “Dooley” pickup truck that he normally drove and refused to return it to him. He indicated that he had possession of a 1982 Chevrolet pickup that she usually drove. Leroy requested that the court order Kimberly to return the Dooley pickup truck to him.

The last witness at the hearing, David Shannon, Leroy’s employer, began his testimony at 3:00 p.m. Thirteen pages later in the statement of facts, the hearing concluded with the following exchange:

THE COURT: Exchange the vehicles at five o’clock this afternoon. Mr. Shannon, before you leave, I’m going to have the parties exchange the vehicles at your shop.... And I expect everybody to be nice....

[Kimberly’s Attorney]: [M]y client is standing here begging me about the 1982 pick-up. She knows what it can and cannot do.... It’s not dependable, and I would request that the Court allow her [to] keep the other vehicle until that one can be proven to be dependable. She is going to be left essentially without a vehicle to take the children unless we can make that determination, and I would ask the Court just to give us that much leeway.

THE COURT: I am expecting, Mr. Waldrep, for this to be in a dependable, running condition, because your children are going to be in there, and I expect it to be in full, dependable condition.... If it’s not, then I am going to hear back from everyone. Okay?

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[Kimberly’s Attorney]: Your Honor, when should we let you know about the pick-up if it’s not in working condition?

THE COURT: I don’t care, whenever you want to. I’m just saying that they exchange it at five o’clock this afternoon. Yes, sir?

[Leroy’s Attorney]: I appreciate the Court’s orders. Would there be anything wrong perhaps with Mr. Shannon inspecting that vehicle before it leaves here today? Because, clearly, I’m not saying she would 'do it, but she could take that vehicle and do something to it and then say it’s not in dependable working order.

THE COURT: I have a note to tell everyone that as bad as we all need working condition vehicles, we don’t need to do anything intentional to them between here and Hearne. Okay? And I’m not making any advance accusations toward either one of you, but we have missing property already and a sense of dislike here that is absolutely as obvious as my lack of hair. Okay? ... So y’all don’t like each other, but I don’t care if you like each other. I happen to protect the children, and getting back to this property, I don’t want any damage to any property.... Check [the 1982 pick-up] and make sure the thing is in good running and dependable condition, and y’all make that exchange at five o’clock this afternoon.

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[Kimberly’s Attorney]: If it doesn’t work, Your Honor, does she have to exchange it? She swears to me that that pick-up doesn’t work, the pick-up they are trying to give her, the ’82 pick-up, has a knock in it and it doesn’t work.

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THE COURT: Mr. Waldrep, ... I shouldn’t have to tell you this. She needs a good, workable, dependable vehicle.

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[Kimberly’s Attorney]: If it doesn’t work, can she keep—

THE COURT: No. It is your duty to have her a dependable, working vehicle.

Contrary to the Court’s order, Kimberly intentionally damaged the GMC Dooley, and Leroy filed a motion to hold her in contempt on August 28, alleging that she had driven the truck into the Brazos River. On August 26, the court signed a judgment of contempt, finding that Kimberly had “specifically violated the Order of the Court in that she damaged the 1985 GMC Pickup Truck by running into the Brazos River Bridge and did not return the vehicle at 5 o’clock p.m. on August 19, 1996.”¹ Her punishment, as set out above, was confinement in the Robertson county jail for forty-five days unless she purged herself by paying $5,500 by October 1, or $5,555 thereafter.

On September 24, Kimberly filed a petition for a writ of habeas corpus with this court. Tex.R.App.P. 120. Por support, she. relies primarily on Ex parte Price, 741 S.W.2d 366 (Tex.1987). In Price, the trial court issued an oral injunction on May 2, Price violated the injunction on May 3, the other party filed a motion for contempt on May 6, and the court reduced the oral injunction to writing on May 9. After a hearing on May 23, the court found Price in contempt for Ms May 3 conduct and sentenced him to 96 hours in jail. The Supreme Court found the contempt order “void insofar as it is based upon the May 2, 1986 oral order.” Id. at 367. More recently, the Court has stated that a person “cannot be held in constructive contempt of court for actions taken prior to the time that the court’s order is reduced to writing.” Ex parte Chambers, 898 S.W.2d 257, 262 (Tex.1995).

Under Price and Chambers, violations of an oral order are not subject to constructive contempt punishment.² We find Price procedurally identical to tMs case. Thus, Kimberly is entitled to the relief she seeks and we declare the judgment holdmg her in contempt to be void. Id.; Price, 741 S.W.2d at 367. Kimberly’s petition for a writ of habeas corpus is granted and she is ordered discharged from custody.

1 . Although the judgment reflects that the hearing was held on August 26 and the judgment was "SIGNED on this the 26th day of August, A.D. 1996”, the judgment was filed stamped by the district clerk on September 9 and the docket sheet reflects that the hearing and ruling occurred on September 9. “[I]n the absence of a recital showing on the face of the judgment ... that the judgment was signed on a different date, the date of rendition as recited therein governs and controls and ... such date of rendition may not be impeached for purposes of appeal by affidavits or otherwise, or by anything short of the amendment of the judgment itself.” Heard v. Heard, 305 S.W.2d 231, 235 (Tex.Civ.App.—Galveston 1957, writ ref'd). Thus, we must presume that the docket entry is erroneous.

2 . Actually, the facts in Price make the court's ruling even stronger. The oral injunction Price violated was a continuation of an earlier written temporaiy restraining order. Ex parte Price, 741 S.W.2d 366, 367 (Tex.1987). In the opinion, the court block-quotes the provision of the TRO specifying the acts Price was prohibited from taking. Id. Thus, Price had a written document explaining the terms of the injunction available to him. Id. However, the contempt judgment was based strictly on his violation of the oral order, so the court’s ruling is supported only by its prohibition on constructive contempt based on an oral order.